SENATE 3rd Reading Unamended April 21, 2016 SENATE Amended 2nd Reading April 20, 2016 Second Regular Session Seventieth General Assembly STATE OF COLORADO REENGROSSED This Version Includes All Amendments Adopted in the House of Introduction LLS NO. 16-0475.01 Richard Sweetman x4333SENATE BILL 16-026 SENATE SPONSORSHIP Woods, HOUSE SPONSORSHIP Melton and Ransom, Senate Committees House Committees Judiciary Appropriations A BILL FOR AN ACT Concerning personal rights of protected persons, and, in connection therewith, limiting the ability of a guardian to isolate a protected person and making an appropriation. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) A guardian or conservator shall not restrict a protected person's right of communication, visitation, or interaction with other persons, including the right to receive visitors, telephone calls, or personal mail, unless such restrictions are authorized by a court order. A court may issue an order restricting the communications, visitations, or interactions that a person may have with a protected person upon a showing of good cause by a guardian or conservator. In determining whether to issue such an order, the court shall consider certain factors. An interested person, including the protected person, who reasonably believes that a guardian or conservator has violated a court order or abused his or her discretion in restricting a protected person's right of communication, visitation, or interaction with other persons may move the court to: Require the guardian or conservator to grant a person access to the protected person; Restrict, or further restrict, a person's access to the protected person; Modify the guardian or conservator's duties; or Remove the guardian or conservator. A guardian or conservator who knowingly isolates a protected person in violation of law or a court order is subject to removal. With certain exceptions, a guardian or conservator shall promptly notify a protected person's closest known family members and any person designated by the protected person to be notified in the event that the protected person: Changes his or her residence; Resides at a location other than the protected person's residence for more than 7 days; Is admitted to a medical facility for acute care or emergency care; or Dies. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, add 15-14-119.5 as follows: 15-14-119.5. Limitations on powers of guardians. (1) The short title of this section is the "Peter Falk Act". (2) (a) Except as described in paragraph (b) of this subsection (2), a guardian shall not restrict a protected person's right of communication, visitation, or interaction with other persons, including the right to receive visitors, telephone calls, or personal mail, unless such restrictions are authorized by a court order. (b) (I) If a protected person is unable to express consent to communication, visitation, or interaction with a person due to a physical or mental condition, then the guardian may presume the protected person's consent to or refusal of the communication, visitation, or interaction based on proof concerning the nature of the protected person's relationship with the person. (II) If a person who wants to communicate, visit, or interact with a protected person presents to the protected person's guardian photos, documents, or other proof concerning the nature of the person's relationship with the protected person, the guardian shall consider such proof. (3) (a) With good cause, a guardian may move the court to restrict a person's ability to communicate, visit, or interact with a protected person. (b) A court may issue an order restricting the communications, visitations, or interactions that a person may have with a protected person upon a showing of good cause by a guardian. In determining whether to issue such an order, a court shall consider the following factors: (I) Whether any protective orders have been issued to protect the protected person from the other person; (II) Whether the other person has been charged with abuse, neglect, or financial exploitation of the protected person; (III) Whether the protected person has expressed a desire to communicate, visit, or interact with the other person or has expressed a desire to not communicate, visit, or interact with the other person; (IV) If the protected person is unable to communicate, whether a properly executed living will, durable power of attorney, or advance directive contains a preference by the protected person with regard to the other person's communication, visitation, or interaction with the protected person; and (V) Any other factors deemed relevant by the court. (c) Before issuing an order pursuant to this subsection (3), the court shall consider imposing the following restrictions in the order listed: (I) Placing reasonable time, manner, or place restrictions on communication, visitation, or interaction between the protected person and the other person based on the history between the protected person and the other person or the protected person's wishes, or both; (II) Requiring that communication, visitation, or interaction between the protected person and the other person be supervised; or (III) Denying communication, visitation, or interaction between the protected person and the other person; except that, unless the court finds that the other person poses a threat to the protected person, the court shall order supervised communication, visitation, or interaction under subparagraph (II) of this paragraph (c) before denying any communication, visitation, or interaction. (4) (a) If any person, including the protected person, reasonably believes that a guardian has violated a court order or abused his or her discretion in applying paragraph (b) of subsection (2) of this section, then the person may move the court to: (I) Require the guardian to grant a person access to the protected person; (II) Restrict, or further restrict, a person's access to the protected person; (III) Modify the guardian's duties; or (IV) Remove the guardian pursuant to section 15-10-503. (b) A guardian who knowingly isolates a protected person and has violated subsection (2) of this section or an order issued pursuant to subsection (3) of this section is subject to removal pursuant to section 15-10-503. (5) (a) Except as provided in paragraph (b) of this subsection (5), the court shall schedule a hearing on a motion filed pursuant to subsection (3) or (4) of this section no later than sixty-three days after the date the motion is filed. The court may, in its discretion, order the parties and the protected person to participate in mediation before the hearing. If mediation results in an agreement between the parties and the protected person, the agreement must be approved and memorialized in an order by the court. (b) (I) If a motion filed pursuant to subsection (3) or (4) of this section states that the protected person's health is in significant decline or that the protected person's death may be imminent, the court shall conduct an emergency hearing as soon as practicable but no later than seven days after the motion is filed. (II) When a court issues an order for an emergency hearing pursuant to subparagraph (I) of this paragraph (b), the court shall also order the guardian to grant the petitioner's supervised communication, visitation, or interaction with the protected person during the period preceding the hearing. (III) Notice of the hearing, a copy of the motion, and a copy of any order issued pursuant to subparagraph (I) of this paragraph (b), if applicable, must be personally served upon the protected person and any person against whom the motion is filed, and nothing in this section affects the protected person's right to appear and be heard in the proceedings. (6) (a) In any action brought under this section, the court may award to the prevailing party costs and reasonable attorney's fees; except that an award of costs or attorney's fees may not be paid out of the protected person's estate. (b) The court, upon motion or upon its own initiative, may impose upon a guardian an appropriate monetary sanction, including, as may be applicable, an order to pay costs and reasonable attorney's fees of another party or parties, if the guardian is found to have knowingly isolated a protected person and to have violated subsection (2) of this section or an order issued pursuant to subsection (3) of this section; except that such a sanction may not be paid out of the protected person's estate. SECTION 2. In Colorado Revised Statutes, add 15-14-119.7 as follows: 15-14-119.7. Guardians required to provide notice - exception. (1) (a) Except as described in subsections (2) and (3) of this section, a guardian shall promptly notify the closest family member of the protected person, all persons of court record, and any other person designated by the protected person to be notified in the event that the protected person: (I) Changes his or her residence, including but not limited to a change of residence to or from one nursing home or assisted care facility to or from another nursing home or assisted care facility; (II) Resides at a location other than the protected person's residence for more than seven days; (III) Is admitted to a medical facility for acute care or for emergency care; or (IV) Dies. The guardian shall notify the closest family member of the protected person in person or by telephone. For all persons of court record and any other person designated by the protected person to be notified, the guardian shall provide notification by written correspondence. (b) A notification provided pursuant to paragraph (a) of this subsection (1) must include the current location of the protected person. (2) A guardian is not required to provide notice to a person in accordance with subsection (1) of this section if: (a) The person informs the guardian in writing that the person does not wish to receive such notice; or (b) The protected person or a court order has expressly prohibited the guardian from providing notice to the person. (3) A guardian shall not provide contact information to any person if an order of protection or a restraining order has been issued against the person on behalf of the protected person. (4) (a) As used in this section, unless the context otherwise requires, "closest family member of the protected person" means, in order: (I) A spouse of the protected person or a partner of the protected person in a civil union; (II) An adult child of the protected person; (III) A parent of the protected person; or (IV) An adult nearest in kinship to the protected person. (b) Notwithstanding paragraph (a) of this subsection (4), "closest family member of the protected person" does not include an individual who is a guardian of the protected person. (c) If more than one person qualifies as the closest family member pursuant to paragraph (a) of this subsection (4), then: (I) If there are two such persons, then notice must be provided to both persons; and (II) If there are more than two such persons, then notice must be provided to the two oldest such persons. SECTION 3. In Colorado Revised Statutes, add 15-14-102.7 as follows: 15-14-102.7. Personal rights of protected persons. (1) Obligation of the courts. The court shall construe and apply this part 1 and parts 3 and 4 of this article, and other provisions of this code as such provisions relate to a protected person, in a manner that maximizes the protection of the personal rights of each protected person. (2) Declaration - uniform law comments. The general assembly declares that the courts should embrace the comments of the uniform law commission that accompanied the reenactment of this article in 2000, which are supportive of the personal rights of a protected person. SECTION 4. In Colorado Revised Statutes, 15-14-102, amend (11); and add (10.5) as follows: 15-14-102. Definitions. In parts 1 to 4 of this article: (10.5) "Personal rights of a protected person" means the right to personal autonomy and other rights that all individuals are entitled to under the constitution and laws of the United States and of this state, which rights include, but are not limited to, equality of justice, freedom of speech, freedom of religion, freedom of association, right to counsel, right to petition, and due process of law for the protection of life, liberty, and property. (11) "Protected person" means a minor or other individual for whom a conservator has been appointed or other protective order has been made, and, as used in sections 15-14-102.7, 15-14-119.5, and 15-14-119.7, includes a ward. SECTION 5. Appropriation. (1) For the 2016-17 state fiscal year, $520,677 is appropriated to the judicial department. This appropriation is from the general fund. To implement this act, the department may use this appropriation as follows: (a) $390,701 for trial court programs, which amount is based on an assumption that the department will require an additional 4.8 FTE; and (b) $129,976 for courthouse capital and infrastructure maintenance. SECTION 6. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.