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2016 Regular Session
SENATE BILL NO. 94
BY SENATOR COLOMB (On Recommendation of the Louisiana State Law Institute)
CIVIL PROCEDURE. Enacts Louisiana Uniform Adult Guardianship Protective
Proceedings Jurisdiction Act. (8/1/16)
1 AN ACT
2 To amend and reenact Code of Civil Procedure Arts. 10(A)(3) and (4) and 4556 and to enact
3 Chapter 24 of Title 13 of the Louisiana Revised Statutes of 1950, to be comprised
4 of R.S. 13:4251.101 through 4251.505, relative to adults in need of care; to provide
5 relative to courts and judicial procedure; to provide relative to jurisdiction and
6 procedures for actions brought pursuant to the Louisiana Uniform Adult
7 Guardianship Protective Proceedings Jurisdiction Act; to provide for ancillary
8 interdiction procedures for protected persons; to provide a short title for the
9 Louisiana Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act;
10 to provide certain definitions, terms, procedures, conditions, requirements and
11 effects; to provide for international application of the Chapter; to provide for
12 communication between Louisiana courts and courts of other states; to provide for
13 cooperation between Louisiana courts and courts of other states; to provide for taking
14 testimony in another state; to provide for exclusive basis; to provide for jurisdiction;
15 to provide for special jurisdiction; to provide for exclusive and continuing
16 jurisdiction; to provide for appropriate forums; to provide for jurisdiction declined
17 by reason of conduct; to provide for notice of proceedings; to provide for
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1 proceedings in more than one state; to provide for transfer of guardianship or
2 conservatorship proceedings to another state; to provide for accepting guardianship
3 or conservatorship proceedings transferred from another state; to provide for
4 registration of guardianship orders; to provide for registration of protective orders;
5 to provide for the effect of the registration of such orders; to provide for uniformity
6 of application and construction; to provide relative to the Electronic Signatures in
7 Global and National Commerce Act; to provide for transitional provision; and to
8 provide for related matters.
9 Be it enacted by the Legislature of Louisiana:
10 Section 1. Chapter 24 of Title 13 of the Louisiana Revised Statutes of 1950, to be
11 comprised of R.S. 13:4251.101 through 4251.505, is hereby enacted to read as follows:
12 CHAPTER 24. LOUISIANA UNIFORM ADULT
13 GUARDIANSHIP AND PROTECTIVE PROCEEDINGS
14 JURISDICTION ACT
15 LOUISIANA PREFATORY NOTE
16 Louisiana's version (the Louisiana Act or the Act) of the Uniform Adult
17 Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) establishes
18 mechanisms for sorting out jurisdictional and related issues in what might be called
19 "adult in need of care" cases (what, under Louisiana domestic law, would be called
20 cases of "interdiction" or "continuing tutorship") that exhibit contacts with more than
21 one state. As such, the Louisiana Act forms part of that set of legal meta-rules known
22 collectively as "the law of conflict of laws." The Act does not, then, form part of that
23 set of ordinary legal rules known collectively as the "local law" (also called the
24 "domestic law").
25
26 Recalling this distinction between the law of conflict of laws and the
27 domestic law and, further, recognizing that Louisiana's version of the UAGPPJA
28 falls on the "conflict of laws" side of the dividing line between the two are vital for
29 a proper understanding not only of what the Act does do, but also of what it does not
30 do.
31
32 What the Act most certainly does not do is to create within Louisiana
33 domestic law a new "third way" of protecting adults in need of care alongside of the
34 existing "two," that is, interdiction and continuing tutorship. From at least as far back
35 as 1808, Louisiana domestic law has recognized these two - but only these two -
36 means of providing such protection. The enactment of this Act does not change this
37 facet of Louisiana law in the least. Consequently, even after the Act goes into effect,
38 if someone, suspecting that some adult might be in need of care, were to wish to seek
39 protection from a Louisiana court for that adult, the concerned person would have
40 to file, depending on the circumstances, a petition styled either "petition for
41 interdiction" or "petition for continuing tutorship." There would remain no other
42 alternatives. It would be entirely out of place - indeed, contrary to law - for the
43 concerned person to file a petition styled "petition for guardianship" or "petition for
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1 conservatorship." Similarly, even after the Act goes into effect, if a Louisiana court,
2 upon receiving a petition of this kind, were to conclude that the petition should be
3 granted (a determination that the court would have to make and could make only by
4 consulting Louisiana's domestic law of interdiction or continuing tutorship, as the
5 case might be) and, for that reason, were to order the appointment of someone to
6 superintend the affairs of the adult in need of care, the court's order would have to
7 refer to this superintendent as either a "curator" or a "tutor", who would enjoy only
8 those rights, powers, and other prerogatives that are established for curators or tutors
9 under Louisiana domestic law. Again, there would remain no other alternatives. It
10 would be entirely out of place - and, again, contrary to law - for the court to issue an
11 order appointing a "guardian" or a "conservator" in haec verba.
12
13 What the Act does do is to create new mechanisms within Louisiana's law of
14 conflicts of law for sorting out various difficulties that could arise when, because an
15 adult-in-need-of-care case has contacts with not only Louisiana but also some other
16 state, it is conceivable that the case might be handled either by a Louisiana court, as
17 an interdiction or continuing tutorship case, or by a court in this other state, as a
18 guardianship or conservatorship case. One such difficulty is that of jurisdiction:
19 which court - that in Louisiana or that in the other state - should handle the matter?
20 Resolution of this kind of difficulty is governed by Part 2 of the Act. If, under the
21 rules set out in that Part, it is determined that the Louisiana court has jurisdiction,
22 then the case will proceed before that court as either an interdiction or continuing
23 tutorship case. Another difficulty is that of the transfer of adult-in-need-of-care cases
24 to or from a Louisiana court for reasons of forum non conveniens. After an
25 adult-in-need-of-care case has been initiated in some other state (where it was styled
26 a "guardianship" or "conservatorship" matter), circumstances might change such that
27 the adult's needs will be more adequately and efficiently addressed by a Louisiana
28 court and, further, the adult's out-of-state guardian or conservator might, for that
29 reason, wish to have the case transferred to the Louisiana court. Resolution of this
30 kind of difficulty is governed by Part 3. If, under the rules set out in that Part, it is
31 determined that the case should be transferred, then the Louisiana court will assume
32 jurisdiction over the case, which, from that point forward, would be handled as (one
33 might even say "converted into") either an interdiction or a continuing tutorship case.
34 Still another difficulty is that of the recognition in Louisiana of out-of-state
35 judgments of guardianship or conservatorship. Resolution of this kind of difficulty
36 is governed by Part 4. If, under the rules set out in that Part, the recognition of such
37 a judgment is accomplished, then the out-of-state guardian or conservator, who, for
38 purposes of actions he might take in Louisiana, will at that point be referred to as a
39 curator or a tutor, will enjoy all (but only) the rights, powers, and other prerogatives
40 enjoyed by curators or tutors under Louisiana domestic law.
41
42 PART I. GENERAL PROVISIONS
43 §4251.101. Short title
44 This Chapter may be cited as the Louisiana Uniform Adult
45 Guardianship and Protective Proceedings Jurisdiction Act.
46 §4251.102. Definitions
47 In this Chapter:
48 (1) "Adult" means an individual who has attained eighteen years of age
49 or who is an emancipated minor.
50 (2) "Conservator" means a person appointed by the court to administer
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1 the property of an adult, including a person appointed as a curator in a full
2 interdiction; as a curator in a limited interdiction, but only insofar as the
3 curator is given power over the care of some or all of the property of the
4 interdict; or as a tutor in a continuing tutorship.
5 (3) "Guardian" means a person appointed by the court to make decisions
6 regarding the person of an adult, including a person appointed as a curator in
7 a full interdiction; as a curator in a limited interdiction, provided that, and only
8 insofar as, the curator is given power over the care of some or all aspects of the
9 person of the interdict; or as a tutor in a continuing tutorship.
10 (4) "Guardianship order" means an order appointing a guardian.
11 (5) "Guardianship proceeding" means a judicial proceeding in which an
12 order for the appointment of a guardian is sought or has been issued.
13 (6) "Incapacitated person" means an adult for whom a guardian has
14 been appointed.
15 (7) "Party" means the respondent, petitioner, guardian, conservator, or
16 any other person allowed by the court to participate in a guardianship or
17 protective proceeding.
18 (8) "Person", except in the term incapacitated person or protected
19 person, means an individual, corporation, business trust, estate, trust,
20 partnership, limited liability company, association, joint venture, public
21 corporation, government or governmental subdivision, agency or
22 instrumentality, or any other legal or commercial entity.
23 (9) "Protected person" means an adult for whom a protective order has
24 been issued.
25 (10) "Protective order" means an order, issued by a court of another
26 state pursuant to the law of that other state, appointing a conservator or
27 relating to management of an adult's property.
28 (11) "Protective proceeding" means a judicial proceeding in which a
29 protective order is sought or has been issued.
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1 (12) "Record" means information that is inscribed on a tangible medium
2 or that is stored in an electronic or other medium and is retrievable in
3 perceivable form.
4 (13) "Respondent" means an adult for whom a protective order or the
5 appointment of a guardian is sought.
6 (14) "State" means a state of the United States, the District of Columbia,
7 Puerto Rico, the United States Virgin Islands, a federally recognized Indian
8 tribe, or any territory or insular possession subject to the jurisdiction of the
9 United States.
10 2016 Louisiana Comments
11 (a) In contrast to the model UAGPPJA, the Louisiana UAGPPJA defines
12 "adult" in such a way as to include emancipated minors. The reason for this deviation
13 is laid out in the first paragraph of the Official Comment of the UAGPPJA: "The
14 definition of 'adult' . . . would exclude an emancipated minor. The Act is not
15 designed to supplant local substantive law on guardianship. States whose
16 guardianship law treats emancipated minors as adults may wish to modify this
17 definition." Louisiana is such a state. See Civ. Code Arts. 389 and 390 (providing
18 that emancipated minors are susceptible of full and limited interdiction).
19
20 (b) The expressions "protective order" and "protective proceeding," as used
21 in the Louisiana UAGPPJA, have only the meanings assigned to them in Paragraphs
22 (10) and (11) of this Section, respectively. The only "protection" with which these
23 expressions are concerned, then, is this: protecting adults who, as a result of some
24 physical or mental problem, are unable to handle some or all of their property. These
25 expressions should not be confused with similar expressions found in other
26 legislation that is concerned with other forms of protection, for example, protection
27 against "domestic violence."
28
29 §4251.103. International application of Part
30 A court of this state may treat a foreign country as if it were a state for
31 the purpose of applying this Part and Parts 2, 3, and 5.
32 §4251.104. Communication between courts
33 A. A court of this state may communicate with a court in another state
34 concerning a proceeding arising under this Act. The court may allow the parties
35 to participate in the communication. Except as otherwise provided in Subsection
36 B, the court shall make a record of the communication. The record may be
37 limited to the fact that the communication occurred.
38 B. Courts may communicate concerning schedules, calendars, court
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1 records, and other administrative matters without making a record.
2 2016 Louisiana Comment
3 Section 1041.104 of the Louisiana UAGPPJA includes the "optional" part of
4 Article 104 of the model UAGPPJA that appears in "brackets." The explanation for
5 this is to be found in the third paragraph of the Official Comment, which reads in
6 part as follows: "[T]he language is bracketed because of a concern in some states that
7 a legislative enactment directing when a court must make a record in a judicial
8 proceeding may violate the doctrine on separation of powers." In Louisiana, there is
9 no such concern.
10 §4251.105. Cooperation between courts
11 If a court of another state in which a guardianship or protective
12 proceeding is pending requests assistance under a provision of law similar to the
13 previous R.S. 13:4251.104, a court of this state has jurisdiction for the limited
14 purpose of granting the request or making reasonable efforts to comply with the
15 request.
16 2016 Louisiana Comment
17 The provisions of Article 105 of the model UAGPPJA that detail the various
18 kinds of assistance that a Louisiana court may render a court of another state upon
19 the latter's request have not been reproduced in Section 4251.105 of the Louisiana
20 UAGPPJA. The reason for this is simply that it is self-evident that a Louisiana court
21 may render to a court of another state any and all of the various kinds of assistance
22 that are enumerated in Article 105. For that reason there is no need for such a
23 detailed enumeration.
24
25 §4251.106. Taking testimony in another state
26 A. In a guardianship or protective proceeding, in addition to other
27 procedures that may be available, testimony of a witness who is located in
28 another state may be offered by deposition or other means allowable in this
29 state for testimony taken in another state. The court on its own motion may
30 order that the testimony of a witness be taken in another state and may
31 prescribe the manner in which and the terms upon which the testimony is to be
32 taken.
33 B. In a guardianship or protective proceeding, a court in this state may
34 permit a witness located in another state to be deposed or to testify by telephone
35 or audiovisual or other electronic means. A court of this state shall cooperate
36 with the court of the other state in designating an appropriate location for the
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1 deposition or testimony.
2 C. Documentary evidence transmitted from another state to a court of
3 this state by technological means that do not produce an original writing may
4 not be excluded from evidence on an objection based on the best evidence rule.
5 PART II. JURISDICTION
6 §4251.201. Definitions; significant-connection factors
7 A. In this Part:
8 (1) "Emergency" means a circumstance that likely will result in
9 substantial harm to a respondent's health, safety, or welfare, and for which the
10 appointment of a guardian is necessary because no other person has authority
11 and is willing to act on the respondent's behalf.
12 (2) "Home state" means the state in which the respondent was physically
13 present, including any period of temporary absence, for at least six consecutive
14 months immediately before the filing of a petition for a protective order or the
15 appointment of a guardian; or if none, the state in which the respondent was
16 physically present, including any period of temporary absence, for at least six
17 consecutive months ending within the six months prior to the filing of the
18 petition.
19 (3) "Significant-connection state" means a state, other than the home
20 state, with which a respondent has a significant connection other than mere
21 physical presence and in which substantial evidence concerning the respondent
22 is available.
23 B. In determining under Section 4251.203 and Section 4251.301(E)
24 whether a respondent has a significant connection with a particular state, the
25 court shall consider:
26 (1) The location of the respondent's family and other persons required
27 to be notified of the guardianship or protective proceeding.
28 (2) The length of time the respondent at any time was physically present
29 in the state and the duration of any absence.
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1 (3) The location of the respondent's property.
2 (4) The extent to which the respondent has ties to the state such as voting
3 registration, state or local tax return filing, vehicle registration, driver's license,
4 social relationship, and receipt of services.
5 §4251.202. Exclusive basis
6 This Part provides the exclusive jurisdictional basis for a court of this
7 state to appoint a guardian or issue a protective order for an adult.
8 2016 Louisiana Comments
9 (a) In conformity with Article 202 of the model UAGPPJA, Section 4251.202
10 of the Louisiana UGAPPJA provides the exclusive jurisdictional basis for a
11 Louisiana court to "appoint a guardian or issue a protective order for an adult." This
12 jurisdictional rule applies as much to purely "in state" cases (cases in which all of the
13 incapacitated or protected person's relevant contacts are in Louisiana) as it does to
14 "interstate" cases (cases in which the incapacitated or protected person has some
15 contacts with Louisiana but other contacts with one or more other states). For that
16 reason, pertinent provisions of Article 10 of the Code of Civil Procedure - those that
17 grant jurisdiction over status in cases involving interdiction and continuing tutorship
18 - have been modified accordingly. The result of these changes is that the jurisdiction
19 of Louisiana courts over all cases involving interdiction and continuing tutorship is
20 now governed by the provisions of this Part including the key provision, Section
21 4251.203. It is possible - indeed likely - that this change will have the effect of
22 expanding the jurisdiction of Louisiana courts over such cases.
23
24 (b) This Section is jurisdictional only. It changes neither the domestic
25 substantive law nor, except as to jurisdiction, the domestic procedural law of
26 Louisiana regarding the protection of adults in need of care. Under that law, there are
27 and, notwithstanding the enactment of this Act, will remain two - and only two -
28 modes of protecting adults in need of care, namely, curatorship ("interdiction") and
29 continuing tutorship. Consequently, in any case over which a Louisiana court asserts
30 jurisdiction on the basis of this Section, all documents produced by that court in
31 connection with the case, including court orders and written communications, should
32 use terms drawn from one or the other of those two domestic legal institutions. For
33 example, the parties and the court, in drafting these documents, should designate the
34 proceeding as one of "interdiction" (or "curatorship") or "continuing tutorship" (as
35 opposed to one of "guardianship" or "conservatorship"), as the case may be; should
36 refer to the adult in need of care as an "interdict" or "person with intellectual
37 disabilities" (as opposed to an "incapacitated person" or a "protected person"), as the
38 case may be; and should refer to the superintendent of that adult as a "curator" or a
39 "continuing tutor" (as opposed to a "guardian" or a "conservator"), as the case may
40 be. See Louisiana Prefatory Note.
41
42 §4251.203. Jurisdiction
43 A court of this state has jurisdiction to appoint a guardian or issue a
44 protective order for a respondent if any of the following apply:
45 (1) This state is the respondent's home state.
46 (2) On the date the petition is filed, this state is a significant-connection
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1 state, and:
2 (a) The respondent does not have a home state or a court of the
3 respondent's home state has declined to exercise jurisdiction because this state
4 is a more appropriate forum; or
5 (b) The respondent has a home state, a petition for an appointment or
6 order is not pending in a court of that state or another significant-connection
7 state, and, before the court makes the appointment or issues the order:
8 (i) A petition for an appointment or order is not filed in the respondent's
9 home state.
10 (ii) An objection to the court's jurisdiction is not filed by a person
11 required to be notified of the proceeding.
12 (iii) The court in this state concludes that it is an appropriate forum
13 under the factors set forth in Section 4251.206.
14 (3) This state does not have jurisdiction under either Paragraph (1) or
15 (2), the respondent's home state and all significant-connection states have
16 declined to exercise jurisdiction because this state is the more appropriate
17 forum, and jurisdiction in this state is consistent with the constitutions of this
18 state and the United States.
19 (4) The requirements for special jurisdiction under Section 4251.204 are
20 met.
21 §4251.204. Special jurisdiction
22 A. A court of this state lacking jurisdiction under Section 4251.203(1)
23 through (3) has special jurisdiction to do any of the following:
24 (1) Appoint a guardian in an emergency for a term not exceeding ninety
25 days for a respondent who is physically present in this state.
26 (2) Issue a protective order with respect to immovable or corporeal
27 movable property located in this state.
28 (3) Appoint a guardian or conservator for an incapacitated or protected
29 person for whom a provisional order to transfer the proceeding from another
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1 state has been issued under procedures similar to Section 4251.301.
2 B. If a petition for the appointment of a guardian in an emergency is
3 brought in this state and this state was not the respondent's home state on the
4 date the petition was filed, the court shall dismiss the proceeding at the request
5 of the court of the home state, if any, whether dismissal is requested before or
6 after the emergency appointment.
7 §4251.205. Exclusive and continuing jurisdiction
8 Except as otherwise provided in Section 4251.204, a court that has
9 appointed a guardian or issued a protective order consistent with this Chapter
10 has exclusive and continuing jurisdiction over the proceeding until it is
11 terminated by the court or the appointment or order expires by its own terms.
12 2016 Louisiana Comment
13 This Section is concerned exclusively with what might be called "interstate"
14 disputes regarding continuing jurisdiction in guardianship or conservatorship
15 matters, that is, cases in which, after a court in some other state has already assumed
16 jurisdiction over such a matter, a court of this state is petitioned to take some action
17 with respect to the person to whom that matter pertains or his property. This Section
18 has no application to "intrastate" disputes of this kind, that is, cases in which the
19 question of which court has jurisdiction involves two different Louisiana courts. To
20 the contrary, such intrastate disputes are governed by other Louisiana legislation, for
21 example, in the case of continuing jurisdiction in interdiction matters, by Code of
22 Civil Procedure Article 4553.
23
24 §4251.206. Appropriate forum
25 A. A court of this state having jurisdiction under Section 4251.203 to
26 appoint a guardian or issue a protective order may decline to exercise its
27 jurisdiction if it determines at any time that a court of another state is a more
28 appropriate forum.
29 B. If a court of this state declines to exercise its jurisdiction under
30 Subsection A, it shall either dismiss or stay the proceeding. The court may
31 impose any condition the court considers just and proper, including the
32 condition that a petition for the appointment of a guardian or issuance of a
33 protective order be filed promptly in another state.
34 C. In determining whether it is an appropriate forum, the court shall
35 consider all relevant factors, including:
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1 (1) Any expressed preference of the respondent.
2 (2) Whether abuse, neglect, or exploitation of the respondent has
3 occurred or is likely to occur and which state could best protect the respondent
4 from the abuse, neglect, or exploitation.
5 (3) The length of time the respondent was physically present in or was
6 a legal resident of this or another state.
7 (4) The distance of the respondent from the court in each state.
8 (5) The financial circumstances of the respondent's estate.
9 (6) The nature and location of the evidence.
10 (7) The ability of the court in each state to decide the issue expeditiously
11 and the procedures necessary to present evidence.
12 (8) The familiarity of the court of each state with the facts and issues in
13 the proceeding.
14 (9) If an appointment were made, the court's ability to monitor the
15 conduct of the guardian or conservator.
16 §4251.207. Jurisdiction declined by reason of conduct
17 A. If at any time a court of this state determines that it acquired
18 jurisdiction to appoint a guardian or issue a protective order because of
19 unjustifiable conduct, the court may do any of the following:
20 (1) Decline to exercise jurisdiction.
21 (2) Exercise jurisdiction for the limited purpose of fashioning an
22 appropriate remedy to ensure the health, safety, and welfare of the respondent
23 or the protection of the respondent's property or prevent a repetition of the
24 unjustifiable conduct, including staying the proceeding until a petition for the
25 appointment of a guardian or issuance of a protective order is filed in a court
26 of another state having jurisdiction.
27 (3) Continue to exercise jurisdiction after considering:
28 (a) The extent to which the respondent and all persons required to be
29 notified of the proceedings have acquiesced in the exercise of the court's
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1 jurisdiction.
2 (b) Whether it is a more appropriate forum than the court of any other
3 state under the factors set forth in Subsection 4251.206(C).
4 (c) Whether the court of any other state would have jurisdiction under
5 factual circumstances in substantial conformity with the jurisdictional
6 standards of Section 4251.203.
7 B. If a court of this state determines that it acquired jurisdiction to
8 appoint a guardian or issue a protective order because a party seeking to invoke
9 its jurisdiction engaged in unjustifiable conduct, it may assess against that party
10 necessary and reasonable expenses, including attorney fees, investigative fees,
11 court costs, communication expenses, witness fees and expenses, and travel
12 expenses. The court may not assess fees, costs, or expenses of any kind against
13 this state or a governmental subdivision, agency, or instrumentality of this state
14 unless authorized by law other than this Chapter.
15 §4251.208. Notice of proceeding
16 If a petition for the appointment of a guardian or issuance of a protective
17 order is brought in this state and this state was not the respondent's home state
18 on the date the petition was filed, in addition to complying with the notice
19 requirements of this state, notice of the petition must be given to those persons
20 who would be entitled to notice of the petition if a proceeding were brought in
21 the respondent's home state. The notice must be given in the same manner as
22 notice is required to be given in this state.
23 §4251.209. Proceedings in more than one state
24 Except for a petition for the appointment of a guardian in an emergency
25 or issuance of a protective order limited to property located in this state under
26 Section 4251.204(A)(1) or (A)(2), if a petition for the appointment of a guardian
27 or issuance of a protective order is filed in this state and in another state and
28 neither petition has been dismissed or withdrawn, the following rules apply:
29 (1) If the court in this state has jurisdiction under Section 4251.203, it
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1 may proceed with the case unless a court in another state acquires jurisdiction
2 under provisions similar to Section 4251.203 before the appointment or issuance
3 of the order.
4 (2) If the court in this state does not have jurisdiction under Section
5 4251.203, whether at the time the petition is filed or at any time before the
6 appointment or issuance of the order, the court shall stay the proceeding and
7 communicate with the court in the other state. If the court in the other state has
8 jurisdiction, the court in this state shall dismiss the petition unless the court in
9 the other state determines that the court in this state is a more appropriate
10 forum.
11 PART III. TRANSFER OF GUARDIANSHIP
12 OR CONSERVATORSHIP
13 §4251.301. Transfer of guardianship or conservatorship to another state
14 A. A guardian or conservator appointed in this state may petition the
15 court to transfer the guardianship or conservatorship to another state.
16 B. Notice of a petition under Subsection A must be given to the persons
17 that would be entitled to notice of a petition in this state for the appointment of
18 a guardian or conservator.
19 C. On the court's own motion or on request of the guardian or
20 conservator, the incapacitated or protected person, or other person required to
21 be notified of the petition, the court shall hold a hearing on a petition filed
22 pursuant to Subsection A.
23 D. The court shall issue an order provisionally granting a petition to
24 transfer a guardianship and shall direct the guardian to petition for
25 guardianship in the other state if the court is satisfied that the guardianship will
26 be accepted by the court in the other state and the court finds that:
27 (1) The incapacitated person is physically present in or is reasonably
28 expected to move permanently to the other state.
29 (2) An objection to the transfer has not been made or, if an objection has
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1 been made, the objector has not established that the transfer would be contrary
2 to the interests of the incapacitated person.
3 (3) Plans for care and services for the incapacitated person in the other
4 state are reasonable and sufficient.
5 E. The court shall issue a provisional order granting a petition to
6 transfer a conservatorship and shall direct the conservator to petition for
7 conservatorship in the other state if the court is satisfied that the
8 conservatorship will be accepted by the court of the other state and the court
9 finds that:
10 (1) The protected person is physically present in or is reasonably
11 expected to move permanently to the other state, or the protected person has a
12 significant connection to the other state considering the factors in Section
13 4251.201(B).
14 (2) An objection to the transfer has not been made or, if an objection has
15 been made, the objector has not established that the transfer would be contrary
16 to the interests of the protected person.
17 (3) Adequate arrangements will be made for management of the
18 protected person's property.
19 F. The court shall issue a final order confirming the transfer and
20 terminating the guardianship or conservatorship upon its receipt of:
21 (1) A provisional order accepting the proceeding from the court to which
22 the proceeding is to be transferred which is issued under provisions similar to
23 Section 4251.302; and
24 (2) The documents required to terminate a guardianship or
25 conservatorship in this state.
26 §4251.302. Accepting guardianship or conservatorship transferred from
27 another state
28 A. To confirm transfer of a guardianship or conservatorship transferred
29 to this state under provisions similar to Section 4251.301, the guardian or
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1 conservator must petition the court in this state to accept the guardianship or
2 conservatorship. The petition must include a certified copy of the other state's
3 provisional order of transfer.
4 B. Notice of a petition under Subsection A must be given to those persons
5 that would be entitled to notice if the petition were a petition for the
6 appointment of a guardian or issuance of a protective order in both the
7 transferring state and this state. The notice must be given in the same manner
8 as notice is required to be given in this state.
9 C. On the court's own motion or on request of the guardian or
10 conservator, the incapacitated or protected person, or other person required to
11 be notified of the proceeding, the court shall hold a hearing on a petition filed
12 pursuant to Subsection A.
13 D. The court shall issue an order provisionally granting a petition filed
14 under Subsection A unless:
15 (1) An objection is made and the objector establishes that transfer of the
16 proceeding would be contrary to the interests of the incapacitated or protected
17 person; or
18 (2) The guardian or conservator is ineligible for appointment in this
19 state.
20 E. The court shall issue a final order accepting the proceeding and
21 appointing the guardian or conservator as guardian or conservator in this state
22 upon its receipt from the court from which the proceeding is being transferred
23 of a final order issued under provisions similar to Section 4251.301 transferring
24 the proceeding to this state.
25 F. Not later than ninety days after issuance of a final order accepting
26 transfer of a guardianship or conservatorship, the court shall determine
27 whether the guardianship or conservatorship needs to be modified to conform
28 to the law of this state.
29 G. In granting a petition under this Section, the court shall recognize a
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1 guardianship or conservatorship order from the other state, including the
2 determination of the incapacitated or protected person's incapacity and the
3 appointment of the guardian or conservator.
4 H. The denial by a court of this state of a petition to accept a
5 guardianship or conservatorship transferred from another state does not affect
6 the ability of the guardian or conservator to seek appointment as guardian or
7 conservator in this state under Code of Civil Procedure Article 4561, if the court
8 has jurisdiction to make an appointment other than by reason of the provisional
9 order of transfer.
10 2016 Louisiana Comments
11 (a) The provisional order contemplated by Subsection D is interlocutory.
12 Because there is no legislation that provides for the appeal of such an order, it is not
13 an "appealable judgment" for purposes of Code of Civil Procedure Article 2083. To
14 obtain review of such an order, a party must apply for supervisory writs in
15 accordance with Code of Civil Procedure Article 2201. By contrast, a judgment
16 denying a petition for such a provisional order, inasmuch as it constitutes a "final
17 judgment," is appealable under Code of Civil Procedure Article 2083.
18
19 (b) The determination of whether "the guardian or conservator is ineligible
20 for appointment in this state," as is required by Subsection (D)(2), is governed solely
21 by Louisiana law. Thus, in making that determination, the court must consider, first,
22 whether the guardian or conservator in question, had he been appointed in Louisiana
23 originally, would have been a "curator" of an interdict or a "continuing tutor" of a
24 "person with intellectual disabilities," as those terms are defined in Louisiana law,
25 and, second, whether the guardian or conservator meets the eligibility requirements
26 established by Louisiana law for that office.
27
28 (c) In the part of the final order contemplated by Subsection E in which the
29 court purports to "appoint [ ] the guardian or conservator as guardian or conservator
30 in this state", the court should refer to the person so appointed not as "guardian" or
31 "conservator", but rather as "curator" or "continuing tutor", as the case may be. As
32 is explained in the Louisiana Prefatory Note to the Act and in numerous comments
33 to other Sections of the Act, this Act does not change the domestic substantive or
34 procedural law of Louisiana regarding the protection of adults in need of care; to be
35 more precise, it does not establish any new or additional mode of protecting adults
36 in need of care alongside those of curatorship ("interdiction") and continuing
37 tutorship. Consequently, any orders issued by a Louisiana court under this Act must
38 use terms drawn from one or the other of those two domestic legal institutions.
39
40 (d) The expression "modified to conform to the law of this state" as used in
41 Subsection F must be understood expansively. The modifications envisioned may be
42 as minor as changing the out-of-state order so that it uses Louisiana legal
43 terminology, for example, changing the terms of a "limited guardianship" to "limited
44 interdiction" or re-naming the former "guardian" as "curator." Likewise possible are
45 more substantive modifications, such as changing a limited guardianship or
46 conservatorship to a full interdiction (or vice versa) if warranted, or naming a
47 different person as the guardian or curator if the person in the out-of-state order does
48 not qualify for that office under Louisiana law.
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1 (e) The ninety-day deadline established in Subsection F of this Section is
2 intended to serve merely as a "prompt" to encourage interested parties, sooner rather
3 than later, to examine the guardianship or conservatorship to determine whether it
4 needs to be modified to conform to Louisiana law. The deadline is not intended to
5 serve as a "prescriptive period" after which such modifications may no longer be
6 made. Once a Louisiana court finally accepts a transfer of a guardianship or
7 conservatorship, the court has full discretion to make any modifications necessary
8 to bring it into compliance with Louisiana law, just as it would in a local case of
9 interdiction or continuing tutorship. This is true whether the problem is discovered
10 within the initial ninety-day period or later.
11
12 (f) The term "recognize," as used in Subsection G of this Section, has its
13 everyday, ordinary meaning, that is, "take cognizance of." It follows that the
14 "recognition" of a foreign judgment of guardianship or conservatorship does not
15 require any "formal" court action, such as a judgment or even a minute entry.
16
17 PART IV. REGISTRATION AND RECOG NITION OF ORDERS
18 FROM OTHER STATES
19
20 §4251.401. Registration of guardianship orders
21 If a guardian has been appointed in another state and a petition for the
22 appointment of a guardian is not pending in this state, the guardian appointed
23 in the other state, after giving notice to the appointing court of an intent to
24 register, may register the guardianship order in this state by filing certified
25 copies of the order and letters of office in the mortgage and conveyance records
26 of any appropriate parish of this state.
27 2016 Louisiana Comment
28
29 The phrase "appropriate parish of this state" as used in this Section refers to
30 the parish (or parishes) where the guardian intends to exercise his authority. For
31 example, if the guardianship order is registered to allow the guardian to commit the
32 adult to the care of some medical or nursing facility, the appropriate parish is the
33 parish where that facility is located.
34
35 §4251.402. Registration of protective orders
36 If a conservator has been appointed in another state and a petition for
37 a protective order is not pending in this state, the conservator appointed in the
38 other state, after giving notice to the appointing court of an intent to register,
39 may register the protective order in this state by filing certified copies of the
40 order and letters of office and of any bond in the mortgage and conveyance
41 records of any parish in which property belonging to the protected person is
42 located.
43 §4251.403. Effect of registration
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1 A. Upon registration of a guardianship or protective order from another
2 state, except as prohibited under the laws of this state, the guardian or
3 conservator may exercise in this state all powers authorized in the order of
4 appointment, subject to the provisions of Code of Civil Procedure Article 4556,
5 including representing the incapacitated or protected person in actions and
6 proceedings in this state and, if the guardian or conservator is not a resident of
7 this state, subject to any conditions imposed upon nonresident parties.
8 B. A court of this state may grant any relief available under this Chapter
9 and other law of this state to enforce a registered order.
10 PART V. MISCELLANEOUS P ROVISIONS
11 §4251.501. Uniformity of application and construction
12 In applying and construing this uniform act, consideration must be given
13 to the need to promote uniformity of the law with respect to its subject matter
14 among states that enact it.
15 §4251.502. Relation to Electronic Signatures in Global and National Commerce
16 Act
17 This Chapter modifies, limits, and supersedes the federal Electronic
18 Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et
19 seq., but does not modify, limit, or supersede Section 101(c) of that act, 15
20 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices
21 described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).
22 §4251.503. [Reserved.]
23 §4251.504. Transitional provision
24 A. This Chapter applies to guardianship and protective proceedings
25 begun on or after the effective date.
26 B. Parts I, III, and IV and Sections 4251.501 and 502 apply to
27 proceedings begun before the effective date, regardless of whether a
28 guardianship or protective order has been issued.
29 §4251.505. [Reserved.]
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1 Section 2. Code of Civil Procedure Arts. 10(A)(3) and (4) and 4556 are hereby
2 amended and reenacted to read as follows:
3 Art. 10. Jurisdiction over status
4 A. A court which is otherwise competent under the laws of this state has
5 jurisdiction of the following actions or proceedings only under the following
6 conditions:
7 * * *
8 (3) An interdiction proceeding if the person sought to be interdicted is
9 domiciled in this state, or is in this state and has property herein brought pursuant
10 to the provisions of the Louisiana Uniform Adult Guardianship Protective
11 Proceedings Jurisdiction Act.
12 (4) A tutorship or curatorship proceeding if the minor, interdict, or absentee,
13 as the case may be, is domiciled in this state or has property herein.
14 * * *
15 Art. 4556. Ancillary interdiction procedure
16 A. Upon producing proof of his appointment, a conservator of a ward
17 residing outside Louisiana who was appointed by a court outside of Louisiana may
18 appear in court on behalf of the ward protected person without qualifying as a
19 curator according to the law of Louisiana when no curator has been appointed in this
20 state. In accordance with the authority set forth in his letters, such a conservator may
21 perform acts affecting the ward's protected person's property in Louisiana when
22 authorized by the court of the parish in which the property is located. Once so
23 authorized, the conservator shall act in the same manner and in accordance with the
24 same procedures as a curator appointed by a court in Louisiana. Whenever the action
25 of an undercurator would be necessary, the court shall appoint an undercurator ad
26 hoc.
27 B. In order to take possession of the ward's protected person's property, or
28 to remove any of it from the state, a conservator appointed by a court outside
29 Louisiana shall file a petition for authority to do so in the court of the parish in which
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1 any of the property is located. The court shall render a judgment granting the
2 authority prayed for if the foreign conservator alleges in the petition that there are
3 no Louisiana creditors of the ward protected person, or that all such known
4 creditors have been paid, and if the foreign conservator attaches to the petition an
5 irrevocable power of attorney appointing a resident of this state to receive service of
6 process in any action or proceeding brought in Louisiana to enforce a claim against
7 the ward protected person, or against any of the ward's protected person's property
8 located in this state.
9 * * *
10 Section 3. The Louisiana State Law Institute is hereby directed to note where
11 appropriate in the Louisiana Uniform Adult Guardianship Protective Proceedings
12 Jurisdiction Act the uniform commentary and prefatory notes of the Uniform Adult
13 Guardianship Protective Proceedings Jurisdiction Act.
14 Section 4. This Act shall become effective on August 1, 2016.
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Jerry G. Jones.
DIGEST
SB 94 Engrossed 2016 Regular Session Colomb
Proposed law enacts the Louisiana Uniform Adult Guardianship and Protective Proceedings
Jurisdiction Act.
Proposed law provides new procedures, largely drawn from a uniform act, for foreign
curatorships and guardianships to be recognized and exercised in Louisiana.
Present law provides that a state court has jurisdiction for an interdiction proceeding if the
person sought to be interdicted is domiciled in this state, or is in this state and has property
herein.
Proposed law provides that a state court has jurisdiction for an interdiction proceeding
brought pursuant to the provisions of the proposed law.
Present law provides that a state court has jurisdiction for a tutorship or curatorship
proceeding if the minor, interdict, or absentee, is domiciled in or owns property in the state.
Proposed law denies a state court jurisdiction over a tutorship or curatorship proceeding for
interdicts who are either domiciled in or own property in the state.
Present law provides for a conservator, who has produced proof of his appointment, of a
ward residing outside of the state to appear in court on behalf of the ward without qualifying
as a curator in Louisiana when no curator has been appointed in the state. This conservator
can perform acts that affect the ward's property in Louisiana when authorized by the court
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in the parish where the property is located. If the foreign curator wants to take possession
of the ward's property or to remove any of it from the state, then he must file a petition for
authority to do so in the court of the parish where the property is located. The court shall
render a judgment granting the authority requested if the foreign conservator alleges in the
petition that there are no Louisiana creditors of the ward or that all such known creditors
have been paid and if the foreign conservator attaches to the petition an irrevocable power
of attorney appointing a resident of this state to receive service of process in any action or
proceeding brought in Louisiana to enforce a claim against the ward or against any of the
ward's property in Louisiana.
Proposed law removes the qualification that the ward reside outside of Louisiana and
replaces the term "ward" with the term "protected person".
Effective August 1, 2016.
(Amends C.C.P. Art. 10(A)(3) and (4) and Art. 4556; adds R.S. 13:4251.101-4251.505)
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