From SFAA:
Rhode Island House Bill 7985 would allow the courts to waive the guardian bond for minors. SFAA will work with AIA to oppose this legislation.
Our perspective is that the surety bond is an inexpensive way to protect minors with guardians. The bond premium is not large. With a bond, the court appoints the guardian knowing that the surety, an objective third party, has checked out the guardian to assure that the guardian can perform the required functions. If the guardian is not bondable, the surety may be able to find a solution. If the guardian does not qualify for the bond individually, the surety may issue a bond only if there is a lawyer involved with joint control over the assets. That is, the surety can work to put some other form of control in place to assure that the minor’s estate will be administered for the benefit of the minor. If there are funds from the minor’s estate that disappear, the surety pays a claim and puts the money back into the estate and pursues the guardian for recovery. The surety also has the incentive to investigate if problems arise, and many times the surety will investigate before a lot of money is lost.
A copy of the bill is attached.
Bill key:
2007 RI H 7985
Version:
Introduced
Version date:
02/26/2008
Author:
Jackson
2008 — H 7985
LC02297
STATE OF RHODE ISLAND
IN GENERAL ASSEMBLY
JANUARY SESSION, A.D. 2008
Rhode Island 2007-2008 Legislative Session
\~21~\~1~HIST \~11~ Introduced By: Representatives Jackson, Lewiss, and Scott
Introduced By: Representatives Jackson, Lewiss, and Scott
Date Introduced: February 26, 2008
Referred To: House Judiciary
EXPLANATION BY THE LEGISLATIVE COUNCIL OF
AN ACT
RELATING TO PROBATE PRACTICE AND PROCEDURE – GUARDIANSHIP OF MINORS
***
This act would repeal provisions for the waiver of a guardian ad litem
report when a parent is petitioning for guardianship of a minor or adult
child. It would allow for the waiver of surety on the guardian’s bond
regardless of the value of the ward’s estate. It would eliminate the
requirement that the probate court prepare the forms for a “good samaritan”
guardianship and allows for service by the guardian ad litem for “good
samaritan” guardianship. The act would also eliminate the need for further
service of notice to respondents upon continuance of hearing date by the
probate court.
This act would take effect upon passage.
AN ACT
RELATING TO PROBATE PRACTICE AND PROCEDURE – GUARDIANSHIP OF MINORS
It is enacted by the General Assembly as follows:
SECTION 1. Section 33-15.1-4.1 of the General Laws in Chapter 33-15.1
entitled “Guardianship of Minors” is hereby repealed.
33-15.1-4.1. Waiver of guardian ad litem report — Parent as
petitioner. — Pursuant to a petition by a parent for guardianship of a minor
or adult child, the requirement that a guardian ad litem file a report shall
be waived unless specifically ordered by the probate court.
SECTION 2. Section 33-15.1-27 of the General Laws in Chapter 33-15.1
entitled “Guardianship of Minors” is hereby amended to read as follows:
33-15.1-27. Investment of surplus funds — Relief from bond requirements.
– Guardians may be authorized to invest any money in their hands, not needed
for the payment of debts, or for the support or education of their wards, in
notes secured by mortgage upon unincumbered unencumbered ,
improved real estate situated in this state, or in the bonds or other
indebtedness of the United States, or of this state, or in the bonds or notes
of any city or town in this state, or in the stock of any domestic building
and loan association or federal savings and loan association doing business
in this state approved by the probate court, or to make deposits of money in
any savings bank or trust company in this state approved by the probate
court, as he or she shall deem best for the interest of his or her ward; and
may also, under the direction of the probate court, invest any money in real
estate or bank stocks in this state or in other safe income producing
securities as the probate court may approve; and if a guardian has so
deposited any money in any savings bank or trust company or invested the
money in stock of any association and deposited with the clerk of the probate
court the savings bankbook, share certificate or other evidence of the
deposit or investment, to be held subject to the order of the court, the
probate court in its discretion may relieve the guardian of the requirement
of surety on his or her bond . if the deposit or investment is
not in excess of ten thousand dollars ($10,000) and constitutes all of the
property of his or her ward, or if there be other property, reduce the amount
of his or her bond by the amount of the deposit or investment, but by not in
excess of ten thousand dollars ($10,000).
SECTION 3. Sections 33-15-4.1 and 33-15-17.1 of the General Laws in
Chapter 33-15 entitled “Limited Guardianship and Guardianship of Adults” are
hereby amended to read as follows:
33-15-4.1. Good Samaritan guardians. — (a) Any person who files a
petition for a guardianship of the person pursuant to the provisions of this
chapter may also file to be qualified as a good Samaritan guardian. A good
Samaritan guardian may be appointed by the probate court in those instances
where the court determines that the estate of a proposed ward is insufficient
to pay for the services of a guardian and that such an appointment would
otherwise be in the best interests of the individual for whom the guardianship
is proposed.
(b) A person filing for appointment of a good Samaritan guardianship
shall file all the forms required by this chapter to initiate a guardianship
petition and shall file an additional form setting forth the qualifications
of the proposed guardian to serve as a good Samaritan guardian. Such forms
shall be prepared by the probate court and shall include, but not be
limited to, the following information:
(1) The experience, if applicable, of the proposed guardian;
(2) The willingness of the proposed guardian to serve as said good
Samaritan guardian; and
(3) A statement that if appointed as a good Samaritan guardian, such
person shall not seek any fees and/or monetary compensation for their
services as a good Samaritan; provided, that this shall not be construed to
prohibit the good Samaritan guardian from soliciting and/or utilizing
charitable donations for and on behalf of the individual under guardianship.
(c) The appointment of a good Samaritan guardian shall be in the
discretion of the probate court.
(d) Except as otherwise provided for herein, hearings on and notice of
the application for and appointment of a good Samaritan guardianship shall
proceed in the same manner as any other petition for guardianship pursuant to
the provisions of this chapter.
33-15-17.1. Notice. — (a) Except for the appointment of a temporary
guardian, no petition for limited guardian or guardian shall be heard and no
person shall be appointed limited guardian or guardian of an individual unless
notice of the petition for appointment of a limited guardian or guardian and a
copy of the petition itself shall be served upon the respondent in person at
least fourteen (14) days prior to any hearing on the petition. If the
hearing date is continued by the probate court for any reason after service on
the respondent and no objection to the petition is filed by or on behalf of
the respondent, no further service on the respondent shall be required. The
probate court, in its discretion, may require further notice to the respondent
in such manner as prescribed by the court.
In the case of a petition for the appointment of a temporary guardian,
such fourteen (14) day notice period shall be reduced to five (5) days,
unless a shorter period is ordered by the court.
(b) This notice shall be in plain language, large type and shall include
the time and place of the hearing, the possible loss of liberty if the
petition is granted, and shall inform the respondent of his or her rights
including: the court appointment of a guardian ad litem, the right to a
hearing and to be present at the hearing to confront witnesses, present
evidence, contest the petition, object to the appointment of a particular
individual as guardian, request that limits be placed on the guardian’s
powers, and the right to counsel. Notice shall be served upon the
respondent by a process server duly authorized and licensed under Rhode
Island law, except for “Good Samaritan” guardianships under section 33-15-4.1
in which case notice may be served upon the respondent by the guardian ad
litem appointed by the court (hereinafter referred to as “court officer”).
(c) The court officer that serves this notice shall be dressed in plain
clothes. He or she shall have experience dealing with individuals who may
lack decision making ability.
(d) The court officer shall present the written notice and shall also
read the notice to the respondent.
(e) Except for a petition for the appointment of a temporary guardian,
notice shall be given by the petitioner, or his or her attorney, at least ten
(10) days before the date set for hearing on the petition by regular mail,
postage prepaid, addressed to (1) the respondent’s spouse and heirs at law
(under the rules of descent) as set forth in section 33-1-1 only at their
last known addresses; and (2) the administrator of any care and treatment
facility where the respondent resides or receives primary services; and (3)
any individual or entity known or reasonably known to the petitioner to be
regularly providing protective services to the respondent. In the case of a
petition for the appointment of a temporary guardian, such ten (10) day
notice period is reduced to five (5) days, unless a shorter period is ordered
by the court, with the petitioner required to use reasonable efforts in
identifying and noticing those individuals described in the immediately
preceding sentence within the limitations of investigation of identity of
addresses of such individuals inherent in a temporary guardianship
proceeding. The petitioner or his or her attorney, shall at or prior to the
hearing file or leave to be filed an affidavit that notice was given setting
forth the names and post office addresses of the persons to whom the notice
was sent and the date of mailing, together with a copy of the notice.
(f) Should the petitioner have no knowledge of the existence or
whereabouts of any of the persons required to be notified pursuant to
subparagraph (e) above, an affidavit to that effect filed with the court
shall satisfy this notice requirement.
(g) Notwithstanding any notice requirement of the petitioner, and except
for a petition for appointment of a temporary guardian the court shall give
notice of the petition by advertisement.
SECTION 4. This act shall take effect upon passage.
Filed under: Commercial Surety, Surety Legal Issues, Surety Legislation
