HB 1431

1
A bill to be entitled
2An act relating to adult guardianship; redesignating part
3II of ch. 744, F.S., as "Venue and Jurisdiction"; creating
4ss. 744.211, 744.2112, 744.2113, 744.2114, 744.2115,
5744.2123, 744.2126, 744.2127, and 744.2129, F.S.;
6providing purposes for and construction of jurisdictional
7provisions; providing definitions; providing for treatment
8of foreign countries for specified purposes; providing for
9communication and cooperation between courts; providing
10for jurisdiction; providing for determination of whether a
11court is an appropriate forum; authorizing a court to
12decline jurisdiction due to certain conduct; providing for
13assessment of costs and expenses against certain parties
14engaging in unjustifiable conduct that caused the court to
15acquire jurisdiction; providing for proceedings in more
16than one state; providing for applicability of specified
17provisions; amending s. 744.202, F.S.; requiring a court
18to determine whether it has jurisdiction; amending s.
19744.3201, F.S.; requiring that a petition to determine
20incapacity of a person be executed by an adult; requiring
21that factual information included in a petition alleging
22incapacity not include any information that is
23confidential or for which the alleged incapacitated person
24maintains a right to privacy; requires that additional
25information be provided in such petitions; providing for a
26court to request additional information; providing a
27continuing duty of interested persons to inform the court
28of certain information; providing an effective date.
29
30Be It Enacted by the Legislature of the State of Florida:
31
32     Section 1.  The Division of Statutory Revision is directed
33to redesignate part II of chapter 744, Florida Statutes, as
34"Venue and Jurisdiction."
35     Section 2.  Sections 744.211, 744.2112, 744.2113, 744.2114,
36744.2115, 744.2123, 744.2126, 744.2127, and 744.2129, Florida
37Statutes, are created to read:
38     744.211  Purposes; construction.-The general purposes of
39ss. 744.211-744.2129 are to:
40     (1)  Avoid jurisdictional competition and conflict with
41courts of other states in matters of guardianship that have in
42the past resulted in the relocation of alleged incapacitated
43persons from state to state with harmful effects on their well-
44being.
45     (2)  Promote cooperation with the courts of other states so
46that guardianship proceedings are heard by the state that can
47best decide if a person is incapacitated and in need of the
48appointment of a guardian.
49     (3)  Deter relocations of alleged incapacitated persons to
50avoid this state from determining if a person is incapacitated
51and needs a guardian.
52     (4)  Promote and expand the exchange of information and
53other forms of mutual assistance between the courts of this
54state and those of other states concerned with the same alleged
55incapacitated person.
56     744.2112  Definitions.-As used in ss. 744.211-744.2129, the
57term:
58     (1)  "Home state" means the state in which the alleged
59incapacitated person was domiciled or resided for at least 6
60consecutive months immediately prior to the filing of a petition
61to determine incapacity or petition to appoint a guardian for an
62incapacitated person.
63     (2)  "Proceeding" means the initiation of a case by the
64filing of a petition to determine incapacity or a petition to
65appoint a guardian for an incapacitated person.
66     (3)  "State" means a state of the United States, the
67District of Columbia, Puerto Rico, the United States Virgin
68Islands, a federally recognized Indian tribe, or any territory
69or insular possession subject to the jurisdiction of the United
70States.
71     744.2113  International application.-A court of this state
72may treat a foreign country as if it were a state for the
73purpose of applying ss. 744.211-744.2129.
74     744.2114  Communication between courts.-A court of this
75state may communicate with a court in another state concerning a
76proceeding arising under ss. 744.211-744.2129. The court shall
77allow interested persons to participate in the communication.
78     744.2115  Cooperation between courts.-
79     (1)  In a proceeding in this state, a court of this state
80may request the appropriate court of another state to do any of
81the following:
82     (a)  Hold an evidentiary hearing.
83     (b)  Order a person in that state to produce evidence or
84give testimony pursuant to procedures of that state.
85     (c)  Order that an evaluation or assessment be made of the
86alleged incapacitated person.
87     (d)  Order any appropriate investigation of an interested
88person involved in a proceeding.
89     (e)  Forward to the court of this state a certified copy of
90the transcript or other record of a hearing under paragraph (a)
91or any other proceeding, any evidence otherwise produced under
92paragraph (b), and any evaluation or assessment prepared
93compliance with an order under paragraph (c) or paragraph (d).
94     (f)  Issue any order necessary to ensure the appearance in
95the proceeding of an interested person whose presence is
96necessary for the court to make a determination.
97     (2)  If a court of another state in which a proceeding is
98pending requests assistance as provided in subsection (1), a
99court of this state has jurisdiction for the purpose of granting
100the request or making reasonable efforts to comply with the
101request.
102     744.2123  Jurisdiction.-A court of this state has
103jurisdiction to determine incapacity or appoint a guardian for
104an alleged incapacitated person if:
105     (1)  This state is the alleged incapacitated person's home
106state;
107     (2)  On the date the petition is filed, this state is
108determined to be an appropriate forum and:
109     1.  The alleged incapacitated person does not have a home
110state or a court of the alleged incapacitated person's home
111state has declined to exercise jurisdiction because this state
112is a more appropriate forum; or
113     2.  The alleged incapacitated person has a home state, a
114petition for determination of incapacity or for appointment of a
115guardian for an incapacitated person is not pending in a court
116of the home state, an objection to the court's jurisdiction is
117not filed by an interested person required to be notified of the
118proceeding, and the court in this state concludes that it is an
119appropriate forum under s. 744.2126; or
120     (3)  This state has jurisdiction under subsection (1) or
121subsection (2), the alleged incapacitated person's home state
122has declined jurisdiction because this state is the more
123appropriate forum, and jurisdiction in this state is consistent
124with the State Constitution and the Constitution and laws of the
125United States.
126     744.2126  Appropriate forum.-
127     (1)  A court of this state having venue and jurisdiction in
128a proceeding may decline to exercise its jurisdiction if it
129determines at any time that a court of another state is a more
130appropriate forum.
131     (2)  If a court of this state declines to exercise its
132jurisdiction under subsection (1), it shall stay the proceeding.
133The court shall require that a proceeding be filed in another
134state within 30 days after entering the stay. If a proceeding is
135not filed in another state within 30 days, a court of this state
136shall remove the stay and assume jurisdiction of the proceeding.
137     (3)  In determining whether it is an appropriate forum, the
138court shall consider all relevant factors, including, but not
139limited to, the following:
140     (a)  Any expressed preference of the alleged incapacitated
141person.
142     (b)  Whether abuse, neglect, or exploitation of the alleged
143incapacitated person has occurred or is likely to occur and
144which state could best protect the alleged incapacitated person
145from the abuse, neglect, or exploitation.
146     (c)  The length of time the alleged incapacitated person
147was physically present in or was a legal resident of this or
148another state.
149     (d)  The state in which the alleged incapacitated person
150has established a domicile or intended to establish a domicile.
151     (e)  The distance of the alleged incapacitated person from
152the court in each state.
153     (f)  The financial circumstances of the alleged
154incapacitated person's estate.
155     (g)  The nature and location of the evidence.
156     744.2127  Jurisdiction declined because of conduct.-
157     (1)  If at any time a court of this state determines that
158it acquired jurisdiction in a proceeding because of
159unjustifiable conduct, the court may:
160     (a)  Decline to exercise jurisdiction;
161     (b)  Exercise jurisdiction for the limited purpose of
162fashioning an appropriate remedy to ensure the health, safety,
163and welfare of the alleged incapacitated person or the
164protection of the alleged incapacitated person's property or
165prevent a repetition of the unjustifiable conduct, including
166staying the proceeding until a proceeding is filed in a court of
167another state having jurisdiction; or
168     (c)  Continue to exercise jurisdiction after considering:
169     1.  The extent to which the alleged incapacitated person
170and all interested persons have acquiesced in the exercise of
171the court's jurisdiction;
172     2.  Whether a court of this state is a more appropriate
173forum than the court of any other state pursuant to the factors
174set forth in s. 744.2126(3); and
175     3.  Whether the court of any other state would have
176jurisdiction under factual circumstances in substantial
177conformity with the jurisdictional standards of s. 744.2123.
178     (2)  If a court of this state determines that it acquired
179jurisdiction in a proceeding because an interested person
180seeking to invoke its jurisdiction engaged in unjustifiable
181conduct, it may assess against that party necessary and
182reasonable expenses, including attorney's fees, investigative
183fees, court costs, communication expenses, witness fees and
184expenses, and travel expenses. The court may not assess fees,
185costs, or expenses of any kind against this state or a
186governmental subdivision, agency, or instrumentality of this
187state unless authorized by law other than this part.
188     744.2129  Proceedings in more than one state.-Except for a
189petition for the appointment of an emergency temporary guardian
190under s. 744.3031, if a proceeding is filed in this state and in
191another state and neither proceeding is dismissed or withdrawn,
192the court shall determine which state has priority. A court of
193this state shall enter any order necessary pursuant to s.
194744.3031 to protect the alleged incapacitated person pending
195final determination of the state to assume jurisdiction of the
196proceeding.
197     Section 3.  Sections 744.211, 744.2112, 744.2113, 744.2114,
198744.2115, 744.2123, 744.2126, 744.2127, and 744.2129, Florida
199Statutes, as created by this act, apply to proceedings begun on
200or after October 1, 2010.
201     Section 4.  Subsection (5) is added to section 744.202,
202Florida Statutes, to read:
203     744.202  Venue; jurisdiction determination.-
204     (5)  A court shall also determine if it has jurisdiction
205pursuant to this part.
206     Section 5.  Section 744.3201, Florida Statutes, is amended
207to read:
208     744.3201  Petition to determine incapacity.-
209     (1)  A petition to determine incapacity of a person must
210may be executed by an adult person.
211     (2)  The petition must be verified and must:
212     (a)  State the name, age, and present address of the
213petitioner and his or her relationship to the alleged
214incapacitated person.;
215     (b)  State the name, age, county of residence, and present
216address of the alleged incapacitated person.;
217     (c)  Specify the primary language spoken by the alleged
218incapacitated person, if known.;
219     (d)  Allege that the petitioner believes the alleged
220incapacitated person to be incapacitated and specify the factual
221information on which such belief is based without stating any
222confidential information or information for which the alleged
223incapacitated person maintains a right to privacy and the names
224and addresses of all persons known to the petitioner who have
225knowledge of such facts through personal observations.;
226     (e)  State the name and address of the alleged
227incapacitated person's attending or family physician, if known.;
228     (f)  State which rights enumerated in s. 744.3215 the
229alleged incapacitated person is incapable of exercising, to the
230best of petitioner's knowledge. If the petitioner has
231insufficient experience to make such judgments, the petition
232must so state.; and
233     (g)  State the names, relationships, and addresses of the
234next of kin of the alleged incapacitated person, so far as are
235known, specifying the dates of birth of any who are minors.
236     (h)  State all addresses at which the alleged incapacitated
237person has lived for the 6 months prior to the filing of the
238petition.
239     (i)  State whether the petitioner has participated, as a
240party or witness or in any other capacity, in any other
241proceeding concerning the alleged incapacitated person being
242declared incapacitated or seeking the appointment of a guardian
243and, if so, identify the court, the case number, and the date of
244any determination.
245     (j)  State whether there is any other pending proceeding to
246determine the capacity of the alleged incapacitated person or
247seeking the appointment of a guardian for an alleged
248incapacitated person that could affect the current proceeding,
249and, if so, identify the court, the case number, and the nature
250of the proceeding.
251     (3)  A copy of any petition for appointment of guardian or
252emergency temporary guardian, if applicable, shall be filed with
253the petition to determine incapacity.
254     (4)  If the information as to any of the items described in
255paragraph (2)(i) or paragraph (2)(j) is in the affirmative, the
256petitioner shall give additional information concerning those
257items under oath as required by the court. The court may examine
258the petitioner and interested persons under oath as to details
259of the information furnished and other matters pertinent to the
260court's jurisdiction and the disposition of the case.
261     (5)  Each interested person has a continuing duty to inform
262the court of any proceeding for the determination of capacity of
263the alleged incapacitated person or seeking the appointment of a
264guardian for an alleged incapacitated person in this or any
265other state that could affect the current proceeding.
266     Section 6.  This act shall take effect October 1, 2010.


CODING: Words stricken are deletions; words underlined are additions.