Haw. Prob. R. 105

As amended through September 30, 2024

Rule 105 - Methods of Providing Notice

(a) Generally. Except as provided in paragraph (b) below, notice in protective proceedings shall be provided by any method permitted under HRS §560:1-401 by which the person notified signs a receipt therefor. Whenever the statute or an order of court requires or permits service by publication of notice, any publication pursuant thereto shall be made at least once a week for three consecutive weeks, the last date of publication being at least ten days prior to the date set for the hearing, in a newspaper of general circulation in the judicial circuit in which the petition is brought, pursuant to the provisions of Rule 9.

(b) Personal Service. Pleadings to initiate a protective proceeding shall be personally served on the respondent as provided for by HRS §560:5-309 or 560:5-404, whichever is applicable, and a return of service filed with the court. The pleadings shall be personally served by any person who is not a party and not less than 18 years of age.

Haw. Prob. R. 105

Amended November 12, 1997, effective 12/15/1997; further amended April 28, 2006, effective 7/1/2006.

COMMENTARY:

HRS §560:5-309(a) provides that notice of a hearing on the petition for guardianship "shall be served personally on the respondent." HRS §560:5-404 provides that "notice of hearing on a petition for conservatorship or other protective order shall be served personally on the respondent, if the respondent has attained fourteen years of age." The meaning of the phrase "shall be served personally" has not been defined, and this has led to confusion about whether notice must be served by a sheriff or police officer, or whether the method can be "any method by which the person entitled to notice receipts for a copy thereof," as provided by HRS §560:1-401(1). It would appear that if it can be shown that the individuals entitled to notice actually did receive notice and signed a receipt therefor, the expense and sometimes intimidating circumstances of having a public officer formally serve process is unnecessary.

This rule clarifies the method of notice required in conservatorship or guardianship proceedings. The rule tracks the Rules of Civil Procedure. The individual regarding whom the action is brought should be served if at all possible (and effective), given the person's mental capacity, but otherwise service may be made on other persons, in the priority stated in the rule. All other individuals who are entitled to notice by statute or court order may be served in person, by mail, or by any other method allowed by HRS §560:1-401, and need not be served by sheriff or other official.

The rule requires formal service of process on the respondent only at the initiation of a protective proceeding. Notice by mail or hand delivery is sufficient for proceedings after the guardianship, conservatorship or protective arrangement has been established.