1 SB75
2 214974-4
3 By Senator Barfoot
4 RFD: Judiciary
5 First Read: 13-JAN-22
Page 0 SB75
1 SB75
2
3
4 ENROLLED, An Act,
5 Relating to probate courts; to amend Sections
6 12-13-1, 38-9-2, and 38-9F-4, Code of Alabama 1975, and to add
7 Sections 38-9-3.1 and 38-9-6.1 to the Code of Alabama 1975, to
8 further provide for the original and general jurisdiction of
9 probate courts; to provide probate courts with jurisdiction
10 over certain proceedings under the Adult Protective Services
11 Act of 1976; to authorize certain judges of probate to issue
12 elder abuse protection orders under certain conditions; and to
13 make nonsubstantive, technical revisions to update existing
14 code language to current style.
15 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
16 Section 1. Sections 12-13-1 and 38-9-2, Code of
17 Alabama 1975, are amended to read as follows:
18 "§12-13-1.
19 "(a) The probate court shall have original and
20 general jurisdiction as to all matters mentioned in this
21 section and shall have original and general jurisdiction as to
22 all other matters which may be conferred upon them by statute
23 law, unless the statute law so conferring jurisdiction
24 expressly makes the jurisdiction special or limited.
Page 1 SB75
1 "(b) The probate court shall have original and
2 general jurisdiction over the following matters:
3 "(1) The probate of wills.
4 "(2) The granting of letters testamentary and of
5 administration and the repeal or revocation of the same.
6 "(3) All controversies in relation to the right of
7 executorship or of administration.
8 "(4) The settlement of accounts of executors and
9 administrators.
10 "(5) The sale and disposition of the real and
11 personal property belonging to and the distribution of
12 intestate's estates.
13 "(6) The appointment and removal of guardians for
14 minors and persons of unsound mind.
15 "(7) All controversies as to the right of
16 guardianship and the settlement of guardians' accounts.
17 "(8) The allotment of dower in land in the cases
18 provided by law.
19 "(9) The partition of lands within their counties.
20 "(10) The change of the name of any person adult
21 residing in their county, upon his or her filing a declaration
22 in writing, signed by him or her, stating the name by which he
23 or she is known and the name to which he or she wishes it to
24 be changed.
Page 2 SB75
1 "(11) The change of the name of any minor residing
2 in their county, upon the filing of a declaration in writing,
3 signed by the parent or legal guardian of the minor, stating
4 the name by which the minor is known and the name to which it
5 is to be changed, along with the consent from all persons who
6 have natural parental or legal rights of the minor. Consent of
7 the minor is required if the minor is 14 or more years of age.
8 This subdivision does not apply to a minor who is involved in
9 a domestic relations matter that is pending in the circuit
10 court or to a minor whose name is ordered by a court to be
11 changed pursuant to the Uniform Parentage Act.
12 "(11) Such other (12) Other cases as jurisdiction is
13 or may be given to such probate courts by law, in all cases to
14 be exercised in the manner prescribed by law.
15 "(c) The probate court and circuit court shall have
16 concurrent original and general jurisdiction of any
17 proceedings under Chapter 9 of Title 38.
18 "(c)(d) All orders, judgments, and decrees of
19 probate courts shall be accorded the same validity and
20 presumptions which are accorded to judgments and orders of
21 other courts of general jurisdiction.
22 "§38-9-2.
23 "For the purposes of this chapter, the following
24 terms shall have the following meanings:
Page 3 SB75
1 "(1) ABUSE. The infliction of physical pain, injury,
2 or the willful deprivation by a caregiver or other person of
3 services necessary to maintain mental and physical health.
4 "(2) ADULT IN NEED OF PROTECTIVE SERVICES. A person
5 18 years of age or older whose behavior indicates that he or
6 she is mentally incapable of adequately caring for himself or
7 herself and his or her interests without serious consequences
8 to himself or herself or others, or who, because of physical
9 or mental impairment, is unable to protect himself or herself
10 from abuse, neglect, exploitation, sexual abuse, or emotional
11 abuse by others, and who has no guardian, relative, or other
12 appropriate person able, willing, and available to assume the
13 kind and degree of protection and supervision required under
14 the circumstances.
15 "(3) CAREGIVER. An individual who has the
16 responsibility for the care of a protected person as a result
17 of family relationship or who has assumed the responsibility
18 for the care of the person voluntarily, by contract, or as a
19 result of the ties of friendship.
20 "(4) COURT. The circuit court or probate court.
21 "(5) DEPARTMENT. The Department of Human Resources
22 of the State of Alabama.
23 "(6) EMOTIONAL ABUSE. The willful or reckless
24 infliction of emotional or mental anguish or the use of a
25 physical or chemical restraint, medication, or isolation as
Page 4 SB75
1 punishment or as a substitute for treatment or care of any
2 protected person.
3 "(7) EMPLOYEE OF A NURSING HOME. A person permitted
4 to perform work in a nursing home by the nursing home
5 administrator or by a person or an entity with an ownership
6 interest in the facility, or by both. A person shall be
7 considered an employee whether or not he or she receives
8 compensation for the work performed.
9 "(8) EXPLOITATION. The expenditure, diminution, or
10 use of the property, assets, or resources of a protected
11 person without the express voluntary consent of that person or
12 his or her legally authorized representative or the admission
13 of or provision of care to a protected person who needs to be
14 in the care of a licensed hospital by an unlicensed hospital
15 after a court order obtained by the State Board of Health has
16 directed closure of the unlicensed hospital. For the purpose
17 of this section and Sections 38-9-6 and 38-9-7, the term
18 "unlicensed hospital" shall have the meaning ascribed to it in
19 Section 22-21-33, and the term "licensed hospital" shall have
20 the meaning ascribed to it in Section 22-21-20.
21 "(9) INTENTIONALLY. A person acts intentionally with
22 respect to a result or to conduct described by a statute
23 defining an offense, when his or her purpose is to cause that
24 result or to engage in that conduct.
Page 5 SB75
1 "(10) INTERESTED PERSON. Any adult relative, friend,
2 or guardian of a protected person, or any official or
3 representative of a public or private agency, corporation, or
4 association concerned with his or her the welfare of the
5 protected person.
6 "(11) MISAPPROPRIATION OF PROPERTY OF A NURSING HOME
7 RESIDENT. The deliberate misplacement or wrongful, temporary,
8 or permanent use or withholding of belongings or money of a
9 resident of a nursing home without the consent of the
10 resident.
11 "(12) NEGLECT. The failure of a caregiver to provide
12 food, shelter, clothing, medical services, or health care for
13 the person unable to care for himself or herself; or the
14 failure of the person to provide these basic needs for himself
15 or herself when the failure is the result of the person's
16 mental or physical inability.
17 "(13) NEURODEGENERATIVE. Relating to or being a
18 progressive loss of neurologic function.
19 "(14) NURSING FACILITY. A facility which that is
20 licensed as a nursing home by the Alabama Department of Public
21 Health pursuant to Article 2, Chapter 21, Title 22.
22 "(15) OTHER LIKE INCAPACITIES. Those conditions
23 incurred as the result of accident or mental or physical
24 illness, producing a condition which that substantially
25 impairs an individual from adequately providing for his or her
Page 6 SB75
1 own care or protecting his or her own interests or protecting
2 himself or herself from physical or mental injury or abuse.
3 "(16) PERSON. Any natural human being.
4 "(17) PHYSICAL INJURY. Impairment of physical
5 condition or substantial pain.
6 "(18) PROTECTED PERSON. Any person over 18 years of
7 age or older subject to protection under this chapter and not
8 otherwise subject to the jurisdiction of the juvenile court or
9 any person, including, but not limited to, persons with a
10 neurodegenerative disease, persons with intellectual
11 disabilities and developmental disabilities, or any person
12 over 18 years of age or older who is not otherwise subject to
13 the jurisdiction of the juvenile court and who that is
14 mentally or physically incapable of adequately caring for
15 himself or herself and his or her interests without serious
16 consequences to himself or herself or others.
17 "(19) PROTECTIVE SERVICES. Those services whose
18 objective is to protect an incapacitated person from himself
19 or herself and from others.
20 "(20) RECKLESSLY. A person acts recklessly with
21 respect to a result or to a circumstance described by a
22 statute defining an offense when he or she is aware of and
23 consciously disregards a substantial and unjustifiable risk
24 that the result will occur or that the circumstance exists.
25 The risk shall be of such nature and degree that its disregard
Page 7 SB75
1 constitutes a gross deviation from the standard conduct that a
2 reasonable person would observe in the situation. A person who
3 creates a risk but is unaware of that risk solely by reason of
4 voluntary intoxication, as defined in subdivision (e)(2) of
5 Section 13A-3-2, acts recklessly with respect thereto.
6 "(21) SERIOUS PHYSICAL INJURY. Physical injury which
7 that creates a risk of death, or which that causes serious and
8 protracted disfigurement, protracted impairment of health,
9 protracted loss of the function of any bodily organ, or the
10 impairment of the function of any bodily organ.
11 "(22) SEXUAL ABUSE. Any conduct that is constitutes
12 a crime as defined in Sections 13A-6-60 to 13A-6-70, inclusive
13 under Article 4 of Chapter 6 of Title 13A."
14 Section 2. Section 38-9-3.1 is added to the Code of
15 Alabama 1975, to read as follows:
16 §38-9-3.1.
17 The probate court and circuit court shall have
18 concurrent original and general jurisdiction as to all matters
19 mentioned in this chapter.
20 Section 3. Section 38-9-6.1 is added to the Code of
21 Alabama 1975, to read as follows:
22 §38-9-6.1.
23 (a) Nothing in this section applies to actions
24 pending in a probate court where the judge of probate is a
25 member in good standing with the Alabama State Bar.
Page 8 SB75
1 (b) At any time after the filing of a petition, but
2 before a hearing contemplated in Section 38-9-6, any protected
3 person, interested person, or party to an action under this
4 chapter may remove the action from the probate court to the
5 circuit court for the county in which the probate court is
6 located by doing all of the following, which shall effect the
7 removal:
8 (1) Filing in the circuit court a notice of removal
9 together with a copy of all processes, pleadings, and orders
10 filed in the probate court.
11 (2) Serving all parties to the action with a copy of
12 the removal notice.
13 (3) Filing a copy of the removal notice with the
14 clerk of the probate court.
15 (c) Upon completion of all of the requirements of
16 subsection (b), jurisdiction shall immediately vest in the
17 circuit court, and the probate court shall proceed no further.
18 Section 4. Section 38-9F-4, Code of Alabama 1975, is
19 amended to read as follows:
20 "§38-9F-4.
21 "(a) The following courts shall have jurisdiction to
22 issue elder abuse protection orders under this chapter:
23 "(1) Circuit courts.
24 "(2) A special circuit court judge appointed
25 pursuant to Section 12-1-14 or 12-1-14.1.
Page 9 SB75
1 "(3) A district court judge designated by a written
2 standing order from the presiding circuit court judge.
3 "(4) A judge of probate designated by a written
4 standing order from the presiding circuit court judge, where
5 the judge of probate is a member in good standing with the
6 Alabama State Bar.
7 "(b) An elder abuse protection order may be
8 requested in any pending civil or domestic relations action,
9 as an independent civil action, or in connection with the
10 preliminary, final, or post-judgment relief in a civil action.
11 "(c) A petition for an elder abuse protection order
12 may be filed in any of the following locations:
13 "(1) Where the plaintiff or defendant resides.
14 "(2) Where the plaintiff is temporarily located if
15 he or she has left his or her residence to avoid further
16 abuse.
17 "(3) Where the abuse occurred.
18 "(d) There is no minimum period of residence for the
19 plaintiff in the State of Alabama or in the county in which a
20 case is filed.
21 "(e) An elder abuse protection order shall be a
22 status order that is specifically designed to protect the
23 elderly person, and in personam jurisdiction over the
24 defendant shall not be required in order to issue an ex parte
25 or final order under this chapter."
Page 10 SB75
1 Section 5. This act shall become effective on the
2 first day of the third month following its passage and
3 approval by the Governor, or its otherwise becoming law.
Page 11 SB75
1
2
3
4
President and Presiding Officer of the Senate
5
6 Speaker of the House of Representatives
SB757
8 Senate 16-FEB-22
9 I hereby certify that the within Act originated in and passed
10 the Senate, as amended.
11
12 Patrick Harris,
13 Secretary.
14
15
16
17 House of Representatives
18 Passed: 03-MAR-22
19
20
21 By: Senator Barfoot
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