STAND. COM. REP. 2971

Honolulu, Hawaii

, 2004

RE: H.B. No. 2297

H.D. 1

S.D. 1

 

 

Honorable Robert Bunda

President of the Senate

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Committee on Judiciary and Hawaiian Affairs, to which was referred H.B. No. 2297, H.D. 1, entitled:

"A BILL FOR AN ACT RELATING TO GUARDIANSHIP AND PROTECTIVE PROCEEDINGS,"

begs leave to report as follows:

The purpose of this measure is to adopt the Uniform Guardianship and Protective Proceedings Act in place of existing Parts I through IV of Article V of Chapter 560, Hawaii Revised Statutes (HRS), the Hawaii Uniform Probate Code, relating to guardianship of persons and property of minors and incapacitated persons. This measure also makes conforming amendments to other statutory sections.

Testimony in support of this measure was submitted by the State Council on Developmental Disabilities, Department of Health, Judiciary, Hawaii Commission to Promote Uniform Legislation, and Hawaiian Disability Rights Center. Testimony in opposition to this measure was submitted by the Department of the Attorney General.

Your Committee finds that the current Hawaii Uniform Probate Code relating to the guardianship of persons and property need revisions to better clarify guardianships over property, minors, and incapacitated adults. This measure specifically:

(1) Stresses the importance of using full guardianships and conservatorships as the last resort, making limited guardianships and conservatorships the preferred choice between the two;

(2) Makes the guardian or conservator consult the ward or the protected person, when feasible, to make decisions, and requires the guardian or conservator to follow the ward's or protected person's expressed desires and personal values in making decisions; and

(3) Implements the concept of a "standby" guardian, which is a person that a parent or spouse may appoint to be a future guardian when the need for a guardian is appropriate.

Your Committee noted concerns expressed by the Department of the Attorney General (AG). As such, your Committee adopted the amendments suggested by the AG. Your Committee further notes that both the AG and the Judiciary conferred on the amendments and agree on the changes. Specifically, this measure was amended by:

(1) Amending venue for an emergency or a temporary substitute guardian of an incapacitated person to be the "circuit in which the respondent is present";

(2) Amending notice requirements to allow a court to waive notice for good cause as an exception to requiring notice of the petition to a particular person;

(3) Clarifying that a guardian of a minor or incapacitated person shall be entitled to reasonable compensation from the ward's estate for services as guardian or for reimbursement of other relevant expenses;

(4) Clarifying that any owner, operator, or employee of a long-term institution or other care settings at which the respondent is receiving care may not be appointed as a guardian, unless that person is related to the respondent;

(5) Clarifying that notice for a guardianship of a minor is only required for living legal parents of the minor whose parental rights have not been terminated pursuant to chapter 571 or 587, HRS;

(6) Clarifying that a court may appoint a guardian or place limitations on guardianships, except where a guardian was appointed subsequent to parental rights terminated under chapter 571 or 587;

(7) Allowing the courts to waive notice to any person other than the respondent if all reasonable efforts were made to identify or find a person on which to serve notice; and

(8) Making technical, nonsubstantive amendments for clarity, consistency, and style.

As affirmed by the record of votes of the members of your Committee on Judiciary and Hawaiian Affairs that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 2297, H.D. 1, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 2297, H.D. 1, S.D. 1, and be referred to the Committee on Ways and Means.

Respectfully submitted on behalf of the members of the Committee on Judiciary and Hawaiian Affairs,

____________________________

COLLEEN HANABUSA, Chair