Florida Senate - 2010                                    SB 2626
       By Senator Aronberg
       27-01869A-10                                          20102626__
    1                        A bill to be entitled                      
    2         An act relating to adult guardianship; redesignating
    3         part II of ch. 744, F.S., as “Venue and Jurisdiction”;
    4         creating ss. 744.211, 744.2112, 744.2113, 744.2114,
    5         744.2115, 744.2123, 744.2126, 744.2127, and 744.2129,
    6         F.S.; providing purposes for and construction of
    7         jurisdictional provisions; providing definitions;
    8         providing for treatment of foreign countries for
    9         specified purposes; providing for communication and
   10         cooperation between courts; providing for
   11         jurisdiction; providing for determination of whether a
   12         court is an appropriate forum; authorizing a court to
   13         decline jurisdiction due to certain conduct; providing
   14         for assessment of costs and expenses against certain
   15         parties engaging in unjustifiable conduct that caused
   16         the court to acquire jurisdiction; providing for
   17         proceedings in more than one state; providing for
   18         applicability of specified provisions; amending s.
   19         744.202, F.S.; requiring a court to determine whether
   20         it has jurisdiction; amending s. 744.3201, F.S.;
   21         requiring that a petition to determine incapacity of a
   22         person be executed by an adult; requiring that factual
   23         information included in a petition alleging incapacity
   24         not include any information that is confidential or
   25         for which the alleged incapacitated person maintains a
   26         right to privacy; requiring that additional
   27         information be provided in such petitions; providing
   28         for a court to request additional information;
   29         providing a continuing duty of interested persons to
   30         inform the court of certain information; providing an
   31         effective date.
   33  Be It Enacted by the Legislature of the State of Florida:
   35         Section 1. The Division of Statutory Revision is directed
   36  to redesignate part II of chapter 744, Florida Statutes, as
   37  “Venue and Jurisdiction.”
   38         Section 2. Sections 744.211, 744.2112, 744.2113, 744.2114,
   39  744.2115, 744.2123, 744.2126, 744.2127, and 744.2129, Florida
   40  Statutes, are created to read:
   41         744.211 Purposes; construction.—The general purposes of ss.
   42  744.211-744.2129 are to:
   43         (1) Avoid jurisdictional competition and conflict with
   44  courts of other states in matters of guardianship that have in
   45  the past resulted in the relocation of alleged incapacitated
   46  persons from state to state with harmful effects on their well
   47  being.
   48         (2) Promote cooperation with the courts of other states so
   49  that guardianship proceedings are heard by the state that can
   50  best decide if a person is incapacitated and in need of the
   51  appointment of a guardian.
   52         (3) Deter relocations of alleged incapacitated persons to
   53  avoid this state from determining if a person is incapacitated
   54  and needs a guardian.
   55         (4) Promote and expand the exchange of information and
   56  other forms of mutual assistance between the courts of this
   57  state and those of other states concerned with the same alleged
   58  incapacitated person.
   59         744.2112 Definitions.—As used in ss. 744.211-744.2129, the
   60  term:
   61         (1) “Home state” means the state in which the alleged
   62  incapacitated person was domiciled or resided for at least 6
   63  consecutive months immediately prior to the filing of a petition
   64  to determine incapacity or petition to appoint a guardian for an
   65  incapacitated person.
   66         (2) “Proceeding” means the initiation of a case by the
   67  filing of a petition to determine incapacity or a petition to
   68  appoint a guardian for an incapacitated person.
   69         (3) “State” means a state of the United States, the
   70  District of Columbia, Puerto Rico, the United States Virgin
   71  Islands, a federally recognized Indian tribe, or any territory
   72  or insular possession subject to the jurisdiction of the United
   73  States.
   74         744.2113 International application.—A court of this state
   75  may treat a foreign country as if it were a state for the
   76  purpose of applying ss. 744.211-744.2129.
   77         744.2114 Communication between courts.—A court of this
   78  state may communicate with a court in another state concerning a
   79  proceeding arising under ss. 744.211-744.2129. The court shall
   80  allow interested persons to participate in the communication.
   81         744.2115 Cooperation between courts.—
   82         (1) In a proceeding in this state, a court of this state
   83  may request the appropriate court of another state to do any of
   84  the following:
   85         (a) Hold an evidentiary hearing.
   86         (b) Order a person in that state to produce evidence or
   87  give testimony pursuant to procedures of that state.
   88         (c) Order that an evaluation or assessment be made of the
   89  alleged incapacitated person.
   90         (d) Order any appropriate investigation of an interested
   91  person involved in a proceeding.
   92         (e) Forward to the court of this state a certified copy of
   93  the transcript or other record of a hearing under paragraph (a)
   94  or any other proceeding, any evidence otherwise produced under
   95  paragraph (b), and any evaluation or assessment prepared
   96  compliance with an order under paragraph (c) or paragraph (d).
   97         (f) Issue any order necessary to ensure the appearance in
   98  the proceeding of an interested person whose presence is
   99  necessary for the court to make a determination.
  100         (2) If a court of another state in which a proceeding is
  101  pending requests assistance as provided in subsection (1), a
  102  court of this state has jurisdiction for the purpose of granting
  103  the request or making reasonable efforts to comply with the
  104  request.
  105         744.2123 Jurisdiction.—A court of this state has
  106  jurisdiction to determine incapacity or appoint a guardian for
  107  an alleged incapacitated person if:
  108         (1) This state is the alleged incapacitated person’s home
  109  state;
  110         (2) On the date the petition is filed, this state is
  111  determined to be an appropriate forum and:
  112         1. The alleged incapacitated person does not have a home
  113  state or a court of the alleged incapacitated person’s home
  114  state has declined to exercise jurisdiction because this state
  115  is a more appropriate forum; or
  116         2. The alleged incapacitated person has a home state, a
  117  petition for determination of incapacity or for appointment of a
  118  guardian for an incapacitated person is not pending in a court
  119  of the home state, an objection to the court’s jurisdiction is
  120  not filed by an interested person required to be notified of the
  121  proceeding, and the court in this state concludes that it is an
  122  appropriate forum under s. 744.2126; or
  123         (3) This state has jurisdiction under subsection (1) or
  124  subsection (2), the alleged incapacitated person’s home state
  125  has declined jurisdiction because this state is the more
  126  appropriate forum, and jurisdiction in this state is consistent
  127  with the State Constitution and the Constitution and laws of the
  128  United States.
  129         744.2126 Appropriate forum.—
  130         (1) A court of this state having venue and jurisdiction in
  131  a proceeding may decline to exercise its jurisdiction if it
  132  determines at any time that a court of another state is a more
  133  appropriate forum.
  134         (2) If a court of this state declines to exercise its
  135  jurisdiction under subsection (1), it shall stay the proceeding.
  136  The court shall require that a proceeding be filed in another
  137  state within 30 days after entering the stay. If a proceeding is
  138  not filed in another state within 30 days, a court of this state
  139  shall remove the stay and assume jurisdiction of the proceeding.
  140         (3) In determining whether it is an appropriate forum, the
  141  court shall consider all relevant factors, including, but not
  142  limited to, the following:
  143         (a) Any expressed preference of the alleged incapacitated
  144  person.
  145         (b) Whether abuse, neglect, or exploitation of the alleged
  146  incapacitated person has occurred or is likely to occur and
  147  which state could best protect the alleged incapacitated person
  148  from the abuse, neglect, or exploitation.
  149         (c) The length of time the alleged incapacitated person was
  150  physically present in or was a legal resident of this or another
  151  state.
  152         (d) The state in which the alleged incapacitated person has
  153  established a domicile or intended to establish a domicile.
  154         (e) The distance of the alleged incapacitated person from
  155  the court in each state.
  156         (f) The financial circumstances of the alleged
  157  incapacitated person’s estate.
  158         (g) The nature and location of the evidence.
  159         744.2127 Jurisdiction declined because of conduct.—
  160         (1) If at any time a court of this state determines that it
  161  acquired jurisdiction in a proceeding because of unjustifiable
  162  conduct, the court may:
  163         (a) Decline to exercise jurisdiction;
  164         (b) Exercise jurisdiction for the limited purpose of
  165  fashioning an appropriate remedy to ensure the health, safety,
  166  and welfare of the alleged incapacitated person or the
  167  protection of the alleged incapacitated person’s property or
  168  prevent a repetition of the unjustifiable conduct, including
  169  staying the proceeding until a proceeding is filed in a court of
  170  another state having jurisdiction; or
  171         (c) Continue to exercise jurisdiction after considering:
  172         1. The extent to which the alleged incapacitated person and
  173  all interested persons have acquiesced in the exercise of the
  174  court’s jurisdiction;
  175         2. Whether a court of this state is a more appropriate
  176  forum than the court of any other state pursuant to the factors
  177  set forth in s. 744.2126(3); and
  178         3. Whether the court of any other state would have
  179  jurisdiction under factual circumstances in substantial
  180  conformity with the jurisdictional standards of s. 744.2123.
  181         (2) If a court of this state determines that it acquired
  182  jurisdiction in a proceeding because an interested person
  183  seeking to invoke its jurisdiction engaged in unjustifiable
  184  conduct, it may assess against that party necessary and
  185  reasonable expenses, including attorney’s fees, investigative
  186  fees, court costs, communication expenses, witness fees and
  187  expenses, and travel expenses. The court may not assess fees,
  188  costs, or expenses of any kind against this state or a
  189  governmental subdivision, agency, or instrumentality of this
  190  state unless authorized by law other than this part.
  191         744.2129 Proceedings in more than one state.—Except for a
  192  petition for the appointment of an emergency temporary guardian
  193  under s. 744.3031, if a proceeding is filed in this state and in
  194  another state and neither proceeding is dismissed or withdrawn,
  195  the court shall determine which state has priority. A court of
  196  this state shall enter any order necessary pursuant to s.
  197  744.3031 to protect the alleged incapacitated person pending
  198  final determination of the state to assume jurisdiction of the
  199  proceeding.
  200         Section 3. Sections 744.211, 744.2112, 744.2113, 744.2114,
  201  744.2115, 744.2123, 744.2126, 744.2127, and 744.2129, Florida
  202  Statutes, as created by this act, apply to proceedings begun on
  203  or after October 1, 2010.
  204         Section 4. Subsection (5) is added to section 744.202,
  205  Florida Statutes, to read:
  206         744.202 Venue; jurisdiction determination.—
  207         (5) A court shall also determine if it has jurisdiction
  208  pursuant to this part.
  209         Section 5. Section 744.3201, Florida Statutes, is amended
  210  to read:
  211         744.3201 Petition to determine incapacity.—
  212         (1) A petition to determine incapacity of a person must may
  213  be executed by an adult person.
  214         (2) The petition must be verified and must:
  215         (a) State the name, age, and present address of the
  216  petitioner and his or her relationship to the alleged
  217  incapacitated person.;
  218         (b) State the name, age, county of residence, and present
  219  address of the alleged incapacitated person.;
  220         (c) Specify the primary language spoken by the alleged
  221  incapacitated person, if known.;
  222         (d) Allege that the petitioner believes the alleged
  223  incapacitated person to be incapacitated and specify the factual
  224  information on which such belief is based without stating any
  225  confidential information or information for which the alleged
  226  incapacitated person maintains a right to privacy and the names
  227  and addresses of all persons known to the petitioner who have
  228  knowledge of such facts through personal observations.;
  229         (e) State the name and address of the alleged incapacitated
  230  person’s attending or family physician, if known.;
  231         (f) State which rights enumerated in s. 744.3215 the
  232  alleged incapacitated person is incapable of exercising, to the
  233  best of petitioner’s knowledge. If the petitioner has
  234  insufficient experience to make such judgments, the petition
  235  must so state.; and
  236         (g) State the names, relationships, and addresses of the
  237  next of kin of the alleged incapacitated person, so far as are
  238  known, specifying the dates of birth of any who are minors.
  239         (h) State all addresses at which the alleged incapacitated
  240  person has lived for the 6 months prior to the filing of the
  241  petition.
  242         (i) State whether the petitioner has participated, as a
  243  party or witness or in any other capacity, in any other
  244  proceeding concerning the alleged incapacitated person being
  245  declared incapacitated or seeking the appointment of a guardian
  246  and, if so, identify the court, the case number, and the date of
  247  any determination.
  248         (j) State whether there is any other pending proceeding to
  249  determine the capacity of the alleged incapacitated person or
  250  seeking the appointment of a guardian for an alleged
  251  incapacitated person that could affect the current proceeding,
  252  and, if so, identify the court, the case number, and the nature
  253  of the proceeding.
  254         (3) A copy of any petition for appointment of guardian or
  255  emergency temporary guardian, if applicable, shall be filed with
  256  the petition to determine incapacity.
  257         (4) If the information as to any of the items described in
  258  paragraph (2)(i) or paragraph (2)(j) is in the affirmative, the
  259  petitioner shall give additional information concerning those
  260  items under oath as required by the court. The court may examine
  261  the petitioner and interested persons under oath as to details
  262  of the information furnished and other matters pertinent to the
  263  court’s jurisdiction and the disposition of the case.
  264         (5) Each interested person has a continuing duty to inform
  265  the court of any proceeding for the determination of capacity of
  266  the alleged incapacitated person or seeking the appointment of a
  267  guardian for an alleged incapacitated person in this or any
  268  other state that could affect the current proceeding.
  269         Section 6. This act shall take effect October 1, 2010.

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