HB99

ENROLLED, An Act,

To amend Section 26-2A-108 of the Code of Alabama 1975 and Division 2A, commencing with Section 26-2A-112, is added to Article 2, Chapter 2A of Title 26 of the Code of Alabama 1975; to establish a procedure by which a relative who has been isolated from a family member who is the subject of a guardianship may petition for reasonable visitation rights.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Section 26-2A-108 of the Code of Alabama 1975, is amended to read as follows:

§26-2A-108.

"(a) Except as limited pursuant to Section 26-2A-105(c), a guardian of an incapacitated person is responsible for health, support, education, or maintenance of the ward, but is not liable to third persons by reason of that responsibility for acts of the ward. In particular and without qualifying the foregoing, a guardian has the same duties, powers, and responsibilities as a guardian for a minor as described in Section 26-2A-78(b), (c), and (d).

"(b) Except as provided in Division 2A, in addition to the duties, powers, and responsibilities of a guardian described in subsection (a), a guardian of an incapacitated person has the power to limit or enforce the ward's right to visitation or communication with anyone, including the right to receive visitors, telephone calls, and personal mail."

Section 2. Division 2A, commencing with Section 26-2A-112, is added to Article 2, Chapter 2A of Title 26 of the Code of Alabama 1975, as follows:

Division 2A. Visitation with Incapacitated Persons.

§26-2A-112.

For the purposes of this division, the following terms have the following meanings:

(1) RELATIVE. A sibling, child, parent, grandparent, or grandchild of a ward or a person who shares this same relationship through adoption or a spouse of the ward.

(2) VISITATION. Any in-person meeting or any telephonic mail or electronic communication between a ward and his or her relative.

(3) VISITATION ORDER. An order issued by the court after notice and hearing regarding the visitation with a ward by his or her relative specifying the approval or disapproval of any visitation and the specifics of that visitation including, but not limited to, the time, place, and manner of the visitation.

(4) WARD. An adult who is a ward as defined in Section 26-2A-20.

§26-2A-113.

(a) A relative may file a petition with the court to compel visitation with a ward from whom he or she has been isolated.

(b) The petition shall be filed in the court having jurisdiction over the guardianship of the ward.

(c) On motion of either the petitioner or the guardian or the court, the petition shall be transferred to the circuit court for the sole purpose of a determination of any relief under this division.

(d) The petition shall state all of the following information:

(1) The condition of the wards's physical and mental health, to the extent known by the petitioner.

(2) The efforts to obtain visitation with the ward.

(3) The proposed visitation that is sought.

(4) The deficit or deficits, if any, in the ward's mental functions that are impaired and an identification of a link between the deficit or deficits and the ward's inability to respond knowingly and intelligently to queries about the requested visitation.

(5) The names and addresses, so far as they are known to the petitioner, of the spouse and relatives of the first degree of the ward.

(e) The court shall provide notice not less than 14 days before the hearing in the manner specified in Section 26-2A-103, Code of Alabama 1975, unless the hearing is an emergency hearing pursuant to subsection (g), in which case, notice shall be given as soon as practicable.

(f) A determination by the court regarding capacity under this section may not be used as evidence of capacity in any other proceeding.

(g) If the petition filed under subsection (a) states that the ward's health is in significant decline or that the ward's death may be imminent, the court shall conduct an emergency hearing as soon as practicable, but not later than 10 days after the date the petition is filed under subsection (a).

§26-2A-114.

Before ruling on the petition, the court may order the Department of Human Resources or the court representative to do any or all of the following:

(1) Conduct interviews with the following:

a. The ward

b. All petitioners.

c. The relatives of the ward.

d. To the extent practical, neighbors and, if known, close friends of the ward.

(2) Inform the ward of the contents of the petition.

(3) Determine whether the ward has the capacity to consent to the requested visitation.

(4) Determine whether the ward desires the proposed visitation.

(5) Report to the court in writing, at least seven days before the hearing, concerning subdivisions (1) to (4), inclusive.

(6) Mail, at least seven days before the hearing, a copy of the report referred to in subdivision (5) to all of the following:

a. The petitioner or his or her attorney, if any.

b. The guardian ad litem appointed to represent the ward for purposes of the petition for visitation.

c. The guardian.

d. Any other person as the court orders.

(7) The report required by this section is confidential and shall be made available only to the parties, persons described in subdivision (6), persons given notice of the petition who have requested this report or who have appeared in the proceedings, their attorneys, and the court.

(8) If the court investigator has performed an investigation within the preceding 12 months and furnished a report thereon to the court, the court may order, upon good cause shown, that another investigation is not necessary or that a more limited investigation may be performed.

§26-2A-115.

(a) In ruling on the petition, the court shall conduct a hearing to determine whether the ward has sufficient capacity to make a knowing and intelligent visitation decision based on evidence presented.

(b) If court determines that the ward has sufficient capacity to make a knowing and intelligent visitation decision and the ward expresses a desire for visitation with the petitioner, the court shall order visitation.

(c) If the court determines that the ward has sufficient capacity to make a knowing and intelligent visitation decision, but does not desire visitation with the petitioner, the court shall not order visitation.

(d) If the court determines that the ward does not have capacity to make a knowing and intelligent visitation decision, the court shall determine whether to order visitation based on the best interest of the ward as determined by the evidence presented to the court.

(e) The court shall order the petitioner to pay the court costs and reasonable fees and expenses of any attorney or court representative appointed under this act.

§26-2A-116.

(a) Except as provided under subsection (b), provided the relative has supplied the guardian with his or her current contact information, the guardian shall as soon as practicable inform relatives of any of the following:

(1) The ward dies.

(2) The ward is admitted to a medical facility for acute or chronic care for a period of three days or more.

(3) The ward's residence has changed.

(4) The ward is staying at a location other than the ward's residence for a period that exceeds one calendar week.

(5) In the case of the ward's death, the guardian shall inform relatives of any funeral arrangements and the location of the ward's final resting place.

(b) The court shall relieve a guardian of the duty to provide notice to a relative under this division, if the court finds that:

(1) The relative entitled to notice about the ward has submitted a written request to the guardian electing not to receive notice about a ward's health and residence.

(2) A protective order was issued against the relative to protect the ward.

(3) The court ordered that the relative not be given this information.

§26-2A-117.

The court has continuing jurisdiction to revoke or modify an order made pursuant to this division upon a petition filed, noticed, and heard in the same manner as the original petition was filed.

Section 3. This act shall become effective January 1, 2017.

Family Law

Elderly

Visitation

Conservators

Human Resources Department

Parents

Code Added

Code Amended