| 1 | A bill to be entitled |
| 2 | An act relating to adult guardianship; redesignating part |
| 3 | II of ch. 744, F.S., as "Venue and Jurisdiction"; creating |
| 4 | ss. 744.211, 744.2112, 744.2113, 744.2114, 744.2115, |
| 5 | 744.2123, 744.2126, 744.2127, and 744.2129, F.S.; |
| 6 | providing purposes for and construction of jurisdictional |
| 7 | provisions; providing definitions; providing for treatment |
| 8 | of foreign countries for specified purposes; providing for |
| 9 | communication and cooperation between courts; providing |
| 10 | for jurisdiction; providing for determination of whether a |
| 11 | court is an appropriate forum; authorizing a court to |
| 12 | decline jurisdiction due to certain conduct; providing for |
| 13 | assessment of costs and expenses against certain parties |
| 14 | engaging in unjustifiable conduct that caused the court to |
| 15 | acquire jurisdiction; providing for proceedings in more |
| 16 | than one state; providing for applicability of specified |
| 17 | provisions; amending s. 744.202, F.S.; requiring a court |
| 18 | to determine whether it has jurisdiction; amending s. |
| 19 | 744.3201, F.S.; requiring that a petition to determine |
| 20 | incapacity of a person be executed by an adult; requiring |
| 21 | that factual information included in a petition alleging |
| 22 | incapacity not include any information that is |
| 23 | confidential or for which the alleged incapacitated person |
| 24 | maintains a right to privacy; requires that additional |
| 25 | information be provided in such petitions; providing for a |
| 26 | court to request additional information; providing a |
| 27 | continuing duty of interested persons to inform the court |
| 28 | of certain information; providing an effective date. |
| 29 |
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| 30 | Be It Enacted by the Legislature of the State of Florida: |
| 31 |
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| 32 | Section 1. The Division of Statutory Revision is directed |
| 33 | to 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, |
| 36 | 744.2115, 744.2123, 744.2126, 744.2127, and 744.2129, Florida |
| 37 | Statutes, are created to read: |
| 38 | 744.211 Purposes; construction.-The general purposes of |
| 39 | ss. 744.211-744.2129 are to: |
| 40 | (1) Avoid jurisdictional competition and conflict with |
| 41 | courts of other states in matters of guardianship that have in |
| 42 | the past resulted in the relocation of alleged incapacitated |
| 43 | persons from state to state with harmful effects on their well- |
| 44 | being. |
| 45 | (2) Promote cooperation with the courts of other states so |
| 46 | that guardianship proceedings are heard by the state that can |
| 47 | best decide if a person is incapacitated and in need of the |
| 48 | appointment of a guardian. |
| 49 | (3) Deter relocations of alleged incapacitated persons to |
| 50 | avoid this state from determining if a person is incapacitated |
| 51 | and needs a guardian. |
| 52 | (4) Promote and expand the exchange of information and |
| 53 | other forms of mutual assistance between the courts of this |
| 54 | state and those of other states concerned with the same alleged |
| 55 | incapacitated person. |
| 56 | 744.2112 Definitions.-As used in ss. 744.211-744.2129, the |
| 57 | term: |
| 58 | (1) "Home state" means the state in which the alleged |
| 59 | incapacitated person was domiciled or resided for at least 6 |
| 60 | consecutive months immediately prior to the filing of a petition |
| 61 | to determine incapacity or petition to appoint a guardian for an |
| 62 | incapacitated person. |
| 63 | (2) "Proceeding" means the initiation of a case by the |
| 64 | filing of a petition to determine incapacity or a petition to |
| 65 | appoint a guardian for an incapacitated person. |
| 66 | (3) "State" means a state of the United States, the |
| 67 | District of Columbia, Puerto Rico, the United States Virgin |
| 68 | Islands, a federally recognized Indian tribe, or any territory |
| 69 | or insular possession subject to the jurisdiction of the United |
| 70 | States. |
| 71 | 744.2113 International application.-A court of this state |
| 72 | may treat a foreign country as if it were a state for the |
| 73 | purpose of applying ss. 744.211-744.2129. |
| 74 | 744.2114 Communication between courts.-A court of this |
| 75 | state may communicate with a court in another state concerning a |
| 76 | proceeding arising under ss. 744.211-744.2129. The court shall |
| 77 | allow 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 |
| 80 | may request the appropriate court of another state to do any of |
| 81 | the following: |
| 82 | (a) Hold an evidentiary hearing. |
| 83 | (b) Order a person in that state to produce evidence or |
| 84 | give testimony pursuant to procedures of that state. |
| 85 | (c) Order that an evaluation or assessment be made of the |
| 86 | alleged incapacitated person. |
| 87 | (d) Order any appropriate investigation of an interested |
| 88 | person involved in a proceeding. |
| 89 | (e) Forward to the court of this state a certified copy of |
| 90 | the transcript or other record of a hearing under paragraph (a) |
| 91 | or any other proceeding, any evidence otherwise produced under |
| 92 | paragraph (b), and any evaluation or assessment prepared |
| 93 | compliance with an order under paragraph (c) or paragraph (d). |
| 94 | (f) Issue any order necessary to ensure the appearance in |
| 95 | the proceeding of an interested person whose presence is |
| 96 | necessary for the court to make a determination. |
| 97 | (2) If a court of another state in which a proceeding is |
| 98 | pending requests assistance as provided in subsection (1), a |
| 99 | court of this state has jurisdiction for the purpose of granting |
| 100 | the request or making reasonable efforts to comply with the |
| 101 | request. |
| 102 | 744.2123 Jurisdiction.-A court of this state has |
| 103 | jurisdiction to determine incapacity or appoint a guardian for |
| 104 | an alleged incapacitated person if: |
| 105 | (1) This state is the alleged incapacitated person's home |
| 106 | state; |
| 107 | (2) On the date the petition is filed, this state is |
| 108 | determined to be an appropriate forum and: |
| 109 | 1. The alleged incapacitated person does not have a home |
| 110 | state or a court of the alleged incapacitated person's home |
| 111 | state has declined to exercise jurisdiction because this state |
| 112 | is a more appropriate forum; or |
| 113 | 2. The alleged incapacitated person has a home state, a |
| 114 | petition for determination of incapacity or for appointment of a |
| 115 | guardian for an incapacitated person is not pending in a court |
| 116 | of the home state, an objection to the court's jurisdiction is |
| 117 | not filed by an interested person required to be notified of the |
| 118 | proceeding, and the court in this state concludes that it is an |
| 119 | appropriate forum under s. 744.2126; or |
| 120 | (3) This state has jurisdiction under subsection (1) or |
| 121 | subsection (2), the alleged incapacitated person's home state |
| 122 | has declined jurisdiction because this state is the more |
| 123 | appropriate forum, and jurisdiction in this state is consistent |
| 124 | with the State Constitution and the Constitution and laws of the |
| 125 | United States. |
| 126 | 744.2126 Appropriate forum.- |
| 127 | (1) A court of this state having venue and jurisdiction in |
| 128 | a proceeding may decline to exercise its jurisdiction if it |
| 129 | determines at any time that a court of another state is a more |
| 130 | appropriate forum. |
| 131 | (2) If a court of this state declines to exercise its |
| 132 | jurisdiction under subsection (1), it shall stay the proceeding. |
| 133 | The court shall require that a proceeding be filed in another |
| 134 | state within 30 days after entering the stay. If a proceeding is |
| 135 | not filed in another state within 30 days, a court of this state |
| 136 | shall remove the stay and assume jurisdiction of the proceeding. |
| 137 | (3) In determining whether it is an appropriate forum, the |
| 138 | court shall consider all relevant factors, including, but not |
| 139 | limited to, the following: |
| 140 | (a) Any expressed preference of the alleged incapacitated |
| 141 | person. |
| 142 | (b) Whether abuse, neglect, or exploitation of the alleged |
| 143 | incapacitated person has occurred or is likely to occur and |
| 144 | which state could best protect the alleged incapacitated person |
| 145 | from the abuse, neglect, or exploitation. |
| 146 | (c) The length of time the alleged incapacitated person |
| 147 | was physically present in or was a legal resident of this or |
| 148 | another state. |
| 149 | (d) The state in which the alleged incapacitated person |
| 150 | has established a domicile or intended to establish a domicile. |
| 151 | (e) The distance of the alleged incapacitated person from |
| 152 | the court in each state. |
| 153 | (f) The financial circumstances of the alleged |
| 154 | incapacitated 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 |
| 158 | it acquired jurisdiction in a proceeding because of |
| 159 | unjustifiable conduct, the court may: |
| 160 | (a) Decline to exercise jurisdiction; |
| 161 | (b) Exercise jurisdiction for the limited purpose of |
| 162 | fashioning an appropriate remedy to ensure the health, safety, |
| 163 | and welfare of the alleged incapacitated person or the |
| 164 | protection of the alleged incapacitated person's property or |
| 165 | prevent a repetition of the unjustifiable conduct, including |
| 166 | staying the proceeding until a proceeding is filed in a court of |
| 167 | another state having jurisdiction; or |
| 168 | (c) Continue to exercise jurisdiction after considering: |
| 169 | 1. The extent to which the alleged incapacitated person |
| 170 | and all interested persons have acquiesced in the exercise of |
| 171 | the court's jurisdiction; |
| 172 | 2. Whether a court of this state is a more appropriate |
| 173 | forum than the court of any other state pursuant to the factors |
| 174 | set forth in s. 744.2126(3); and |
| 175 | 3. Whether the court of any other state would have |
| 176 | jurisdiction under factual circumstances in substantial |
| 177 | conformity with the jurisdictional standards of s. 744.2123. |
| 178 | (2) If a court of this state determines that it acquired |
| 179 | jurisdiction in a proceeding because an interested person |
| 180 | seeking to invoke its jurisdiction engaged in unjustifiable |
| 181 | conduct, it may assess against that party necessary and |
| 182 | reasonable expenses, including attorney's fees, investigative |
| 183 | fees, court costs, communication expenses, witness fees and |
| 184 | expenses, and travel expenses. The court may not assess fees, |
| 185 | costs, or expenses of any kind against this state or a |
| 186 | governmental subdivision, agency, or instrumentality of this |
| 187 | state unless authorized by law other than this part. |
| 188 | 744.2129 Proceedings in more than one state.-Except for a |
| 189 | petition for the appointment of an emergency temporary guardian |
| 190 | under s. 744.3031, if a proceeding is filed in this state and in |
| 191 | another state and neither proceeding is dismissed or withdrawn, |
| 192 | the court shall determine which state has priority. A court of |
| 193 | this state shall enter any order necessary pursuant to s. |
| 194 | 744.3031 to protect the alleged incapacitated person pending |
| 195 | final determination of the state to assume jurisdiction of the |
| 196 | proceeding. |
| 197 | Section 3. Sections 744.211, 744.2112, 744.2113, 744.2114, |
| 198 | 744.2115, 744.2123, 744.2126, 744.2127, and 744.2129, Florida |
| 199 | Statutes, as created by this act, apply to proceedings begun on |
| 200 | or after October 1, 2010. |
| 201 | Section 4. Subsection (5) is added to section 744.202, |
| 202 | Florida Statutes, to read: |
| 203 | 744.202 Venue; jurisdiction determination.- |
| 204 | (5) A court shall also determine if it has jurisdiction |
| 205 | pursuant to this part. |
| 206 | Section 5. Section 744.3201, Florida Statutes, is amended |
| 207 | to read: |
| 208 | 744.3201 Petition to determine incapacity.- |
| 209 | (1) A petition to determine incapacity of a person must |
| 210 | may 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 |
| 213 | petitioner and his or her relationship to the alleged |
| 214 | incapacitated person.; |
| 215 | (b) State the name, age, county of residence, and present |
| 216 | address of the alleged incapacitated person.; |
| 217 | (c) Specify the primary language spoken by the alleged |
| 218 | incapacitated person, if known.; |
| 219 | (d) Allege that the petitioner believes the alleged |
| 220 | incapacitated person to be incapacitated and specify the factual |
| 221 | information on which such belief is based without stating any |
| 222 | confidential information or information for which the alleged |
| 223 | incapacitated person maintains a right to privacy and the names |
| 224 | and addresses of all persons known to the petitioner who have |
| 225 | knowledge of such facts through personal observations.; |
| 226 | (e) State the name and address of the alleged |
| 227 | incapacitated person's attending or family physician, if known.; |
| 228 | (f) State which rights enumerated in s. 744.3215 the |
| 229 | alleged incapacitated person is incapable of exercising, to the |
| 230 | best of petitioner's knowledge. If the petitioner has |
| 231 | insufficient experience to make such judgments, the petition |
| 232 | must so state.; and |
| 233 | (g) State the names, relationships, and addresses of the |
| 234 | next of kin of the alleged incapacitated person, so far as are |
| 235 | known, specifying the dates of birth of any who are minors. |
| 236 | (h) State all addresses at which the alleged incapacitated |
| 237 | person has lived for the 6 months prior to the filing of the |
| 238 | petition. |
| 239 | (i) State whether the petitioner has participated, as a |
| 240 | party or witness or in any other capacity, in any other |
| 241 | proceeding concerning the alleged incapacitated person being |
| 242 | declared incapacitated or seeking the appointment of a guardian |
| 243 | and, if so, identify the court, the case number, and the date of |
| 244 | any determination. |
| 245 | (j) State whether there is any other pending proceeding to |
| 246 | determine the capacity of the alleged incapacitated person or |
| 247 | seeking the appointment of a guardian for an alleged |
| 248 | incapacitated person that could affect the current proceeding, |
| 249 | and, if so, identify the court, the case number, and the nature |
| 250 | of the proceeding. |
| 251 | (3) A copy of any petition for appointment of guardian or |
| 252 | emergency temporary guardian, if applicable, shall be filed with |
| 253 | the petition to determine incapacity. |
| 254 | (4) If the information as to any of the items described in |
| 255 | paragraph (2)(i) or paragraph (2)(j) is in the affirmative, the |
| 256 | petitioner shall give additional information concerning those |
| 257 | items under oath as required by the court. The court may examine |
| 258 | the petitioner and interested persons under oath as to details |
| 259 | of the information furnished and other matters pertinent to the |
| 260 | court's jurisdiction and the disposition of the case. |
| 261 | (5) Each interested person has a continuing duty to inform |
| 262 | the court of any proceeding for the determination of capacity of |
| 263 | the alleged incapacitated person or seeking the appointment of a |
| 264 | guardian for an alleged incapacitated person in this or any |
| 265 | other state that could affect the current proceeding. |
| 266 | Section 6. This act shall take effect October 1, 2010. |