Florida Senate - 2019                                    SB 1168
       
       
        
       By Senator Gruters
       
       
       
       
       
       23-00531A-19                                          20191168__
    1                        A bill to be entitled                      
    2         An act relating to guardianships and protective
    3         proceedings; providing a directive to the Division of
    4         Law Revision to create part IX of ch. 744, F.S.,
    5         entitled “Florida Guardianship and Protective
    6         Proceedings Jurisdiction Act”; creating s. 744.74,
    7         F.S.; providing a short title; creating s. 744.75,
    8         F.S.; providing purpose and construction; creating s.
    9         744.76, F.S.; defining terms; creating s. 744.77,
   10         F.S.; providing that a foreign country is to be
   11         treated as a state; creating s. 744.78, F.S.;
   12         authorizing a court of this state to communicate with
   13         a court of another state for specified purposes;
   14         creating s. 744.79, F.S.; authorizing a court of this
   15         state to request a court of another state to conduct
   16         certain activities; creating s. 744.80, F.S.;
   17         providing that a witness located in another state may
   18         be deposed or may testify by certain means; creating
   19         s. 744.81, F.S.; providing factors for a court to
   20         consider in determining a significant connection with
   21         another state; creating s. 744.82, F.S.; providing
   22         that a court has special jurisdiction to undertake
   23         certain activities; creating s. 744.83, F.S.;
   24         providing when a court has exclusive and continuing
   25         jurisdiction over the proceeding; creating ss. 744.84
   26         and 744.85, F.S.; providing when a court may decline
   27         jurisdiction; creating s. 744.86, F.S.; requiring
   28         notice to specified parties; creating s. 744.87, F.S.;
   29         providing rules for when a petition for the
   30         appointment of a guardian is filed in this state and
   31         in another state; creating s. 744.88, F.S.; providing
   32         for the transfer of a guardianship to another state;
   33         creating s. 744.89, F.S.; providing procedures for
   34         accepting transfer of a guardianship into this state;
   35         creating s. 744.90, F.S.; providing for the uniform
   36         application and construction of the part; creating s.
   37         744.91, F.S.; providing that the part modifies,
   38         limits, and supersedes certain federal laws; creating
   39         s. 744.92, F.S.; providing applicability; providing an
   40         effective date.
   41          
   42  Be It Enacted by the Legislature of the State of Florida:
   43  
   44         Section 1. The Division of Law Revision is directed to
   45  create part IX of chapter 744, Florida Statutes, consisting of
   46  ss. 744.74-744.92, Florida Statutes, to be entitled “Florida
   47  Guardianship and Protective Proceedings Jurisdiction Act.”
   48         Section 2. Section 744.74, Florida Statutes, is created to
   49  read:
   50         744.74Short title.—This act may be cited as the “Florida
   51  Guardianship and Protective Proceedings Jurisdiction Act.”
   52         Section 3. Section 744.75, Florida Statutes, is created to
   53  read:
   54         744.75Purpose; construction.—The purpose of this part is
   55  to provide clear direction to the courts, attorneys, guardians,
   56  and individuals about the proper jurisdiction for guardianship
   57  proceedings. This part is intended to supplement but not replace
   58  the current system for determining incompetency, appointing
   59  guardians, managing estates, and other procedures as governed by
   60  this chapter. The general purposes of this part are to:
   61         (1)Avoid jurisdictional competition and conflict with
   62  courts of other states in matters of guardianship.
   63         (2)Establish procedures for transferring guardianship from
   64  one state to another state when the incapacitated adult moves.
   65         (3)Avoid relitigating the guardianship decisions of other
   66  states in this state.
   67         (4)Discourage the use of the interstate system for
   68  continuing controversies over guardianship.
   69         (5)Provide a uniform national system for registration and
   70  enforcement of out-of-state guardianship orders.
   71         Section 4. Section 744.76, Florida Statutes, is created to
   72  read:
   73         744.76Definitions.—As used in this part, the term:
   74         (1)“Adult” means an individual who has attained 18 years
   75  of age.
   76         (2)“Emergency” means a circumstance that will likely
   77  result in substantial harm to a respondent’s health, safety, or
   78  welfare, and for which the appointment of a guardian is
   79  necessary because no other person has authority or is willing to
   80  act on the respondent’s behalf.
   81         (3)“Guardian” means a person who has been appointed by the
   82  court to act on behalf of a ward’s person or property, or both.
   83         (4)“Guardianship order” means an order appointing a
   84  guardian.
   85         (5)“Guardianship proceeding” means a judicial proceeding
   86  in which an order for the appointment of a guardian is sought or
   87  has been issued.
   88         (6)“Home state” means the state in which the respondent
   89  was physically present, including any period of temporary
   90  absence, for at least 6 consecutive months immediately before
   91  the filing of a petition for a protective order or the
   92  appointment of a guardian. If no such state exists, then the
   93  home state is the state in which the respondent was physically
   94  present, including any period of temporary absence, for at least
   95  6 consecutive months ending within the 6 months immediately
   96  before the filing of the petition.
   97         (7)“Incapacitated person” means a person who has been
   98  adjudicated by a court of competent jurisdiction to lack the
   99  capacity to manage at least some of his or her property or to
  100  meet at least some of his or her essential health and safety
  101  requirements and for whom a guardian has been appointed.
  102         (8)“Interested person” has the same meaning as in s.
  103  731.201.
  104         (9)“Party” means the respondent, the petitioner, the
  105  guardian, the conservator, or any other person allowed by the
  106  court to participate in a guardianship or a protective
  107  proceeding.
  108         (10)“Person,” except when used in the terms “incapacitated
  109  person” or “protected person,” includes individuals, children,
  110  firms, associations, joint adventures, partnerships, estates,
  111  trusts, business trusts, syndicates, fiduciaries, corporations,
  112  and all other groups or combinations as defined in s. 1.01.
  113         (11)“Protected person” means an adult for whom a
  114  protective order has been issued.
  115         (12)“Protective order” means an order appointing a
  116  guardian or other order related to protection or management of
  117  an adult’s property, including, but not limited to, an
  118  injunction for protection against exploitation of a vulnerable
  119  adult issued under s. 825.1035.
  120         (13)“Protective proceeding” means a judicial proceeding in
  121  which a protective order is sought or has been issued.
  122         (14)“Record” means information that is inscribed on a
  123  tangible medium or that is stored in an electronic or other
  124  medium and is retrievable in perceivable form.
  125         (15)“Respondent” means an adult for whom a protective
  126  order or the appointment of a guardian is sought.
  127         (16)“Significant-connection state” means a state, other
  128  than the home state, with which a respondent has a significant
  129  connection other than mere physical presence and in which
  130  substantial evidence concerning the respondent is available.
  131         (17)“State” means a state of the United States, the
  132  District of Columbia, Puerto Rico, the United States Virgin
  133  Islands, a federally recognized Indian tribe, or any territory
  134  or insular possession subject to the jurisdiction of the United
  135  States.
  136         (18)“Ward” means a person for whom a guardian or a
  137  conservator has been appointed.
  138         Section 5. Section 744.77, Florida Statutes, is created to
  139  read:
  140         744.77International application of part.—A court of this
  141  state shall treat a foreign country as if it were a state of the
  142  United States for purposes of applying this part.
  143         Section 6. Section 744.78, Florida Statutes, is created to
  144  read:
  145         744.78Communication between courts.—
  146         (1)A court of this state may communicate with a court in
  147  another state concerning a proceeding arising under this part.
  148         (2)Courts may communicate concerning schedules, calendars,
  149  court records, and other administrative matters without making a
  150  record.
  151         Section 7. Section 744.79, Florida Statutes, is created to
  152  read:
  153         744.79Cooperation between courts.—
  154         (1)In a guardianship proceeding in this state, a court of
  155  this state may request the appropriate court of another state to
  156  do any of the following:
  157         (a)Hold a hearing;
  158         (b)Order that an evaluation or an assessment be made of
  159  the respondent; or
  160         (c)Order any appropriate investigation of a person
  161  involved in a proceeding.
  162         (2)If a court of another state, in which a guardianship
  163  proceeding is pending, requests the kind of assistance described
  164  in subsection (1), a court of this state has jurisdiction for
  165  the limited purpose of granting the request or for making
  166  reasonable efforts to comply with the request.
  167         Section 8. Section 744.80, Florida Statutes, is created to
  168  read:
  169         744.80Taking testimony in another state.—
  170         (1)In a guardianship proceeding or protective proceeding,
  171  upon agreement of all the parties, a court of this state may
  172  permit a witness located in another state to be deposed or to
  173  testify by telephone, audiovisual, or other electronic means.
  174         (2)Documentary evidence transmitted from another state to
  175  a court of this state by technological means that does not
  176  produce an original writing may be excluded from evidence on an
  177  objection based on the best evidence rule.
  178         Section 9. Section 744.81, Florida Statutes, is created to
  179  read:
  180         744.81Significant connection factors.—In determining
  181  whether a respondent has a significant connection with a
  182  particular state, the court shall consider the following:
  183         (1)The location of the respondent’s family and other
  184  persons required to be notified of the guardianship proceeding
  185  or the protective proceeding.
  186         (2)The length of time that the respondent was physically
  187  present in the state at any point in time and the duration of
  188  any absence.
  189         (3)The location of the respondent’s property.
  190         (4)The extent to which the respondent has ties to the
  191  state, such as voting registration, state or local tax return
  192  filing, vehicle registration, driver license, social
  193  relationships, and receipt of services.
  194         Section 10. Section 744.82, Florida Statutes, is created to
  195  read:
  196         744.82Special jurisdiction.—
  197         (1)A court of this state has jurisdiction to do the
  198  following:
  199         (a)Appoint a temporary guardian in an emergency for the
  200  person who is physically present in this state in accordance
  201  with this chapter.
  202         (b)Appoint a guardian for an incapacitated person for whom
  203  a provisional order to transfer the proceeding from another
  204  state has been issued.
  205         (2)If a petition for the appointment of an emergency
  206  temporary guardian is brought in this state and this state was
  207  not the respondent’s home state on the date that the petition
  208  was filed, the court shall dismiss the proceeding at the request
  209  of the court of the home state, if any, whether dismissal is
  210  requested before or after the emergency appointment.
  211         Section 11. Section 744.83, Florida Statutes, is created to
  212  read:
  213         744.83Exclusive and continuing jurisdiction.—Except as
  214  otherwise provided in s. 744.82, a court that has appointed a
  215  guardian or issued a protective order consistent with this part
  216  has exclusive and continuing jurisdiction over the proceeding
  217  until it is terminated by the court or the appointment or order
  218  expires by its own terms.
  219         Section 12. Section 744.84, Florida Statutes, is created to
  220  read:
  221         744.84Appropriate forum.—
  222         (1)A court of this state having jurisdiction to appoint a
  223  guardian may decline to exercise its jurisdiction if it
  224  determines at any time that a court of another state is a more
  225  appropriate forum.
  226         (2)If a court of this state declines to exercise its
  227  jurisdiction under subsection (1), it shall dismiss or stay the
  228  proceeding. The court may impose any condition that the court
  229  considers just and proper, including requiring that a petition
  230  for the appointment of a guardian or issuance of a protective
  231  order be filed promptly in another state.
  232         Section 13. Section 744.85, Florida Statutes, is created to
  233  read:
  234         744.85Jurisdiction declined by reason of conduct.—
  235         (1)If at any time a court of this state determines that it
  236  acquired jurisdiction to appoint a guardian because a person
  237  seeking to invoke its jurisdiction engaged in unjustifiable
  238  conduct, the court may:
  239         (a)Decline to exercise jurisdiction; or
  240         (b)Exercise jurisdiction for the limited purposes of
  241  fashioning an appropriate remedy to ensure the health, safety,
  242  and welfare of the respondent, of protecting the respondent’s
  243  property, or of preventing a repetition of the unjustifiable
  244  conduct, including staying the proceeding until a petition for
  245  the appointment of a guardian is filed in a court of another
  246  state having jurisdiction.
  247         (2)If a court of this state determines that it acquired
  248  jurisdiction to appoint a guardian because a person seeking to
  249  invoke its jurisdiction engaged in unjustifiable conduct, it may
  250  assess that person necessary and reasonable expenses, including
  251  attorney fees, investigative fees, court costs, communication
  252  expenses, witness fees and expenses, and travel expenses. The
  253  court may not assess fees, costs, or expenses of any kind
  254  against this state or a governmental subdivision, agency, or
  255  instrumentality of this state unless authorized by law other
  256  than this part.
  257         Section 14. Section 744.86, Florida Statutes, is created to
  258  read:
  259         744.86Notice of proceeding.—If a petition for the
  260  appointment of a guardian is brought in this state and this
  261  state was not the respondent’s home state on the date that the
  262  petition was filed, notice of the petition must be given to
  263  those persons who would be entitled to notice of the petition in
  264  this state.
  265         Section 15. Section 744.87, Florida Statutes, is created to
  266  read:
  267         744.87Proceedings in more than one state.—Except for a
  268  petition for the appointment of a guardian in an emergency, if a
  269  petition for the appointment of a guardian is filed in this
  270  state and in another state and neither petition has been
  271  dismissed or withdrawn, the following rules apply:
  272         (1)If the court of this state has jurisdiction under this
  273  chapter, it may proceed with the case unless a court of another
  274  state acquires jurisdiction before the appointment of the
  275  guardian or issuance of the order.
  276         (2)If the court of this state does not have jurisdiction
  277  under this chapter, whether at the time the petition is filed or
  278  at any time before the appointment of a guardian or issuance of
  279  an order, the court shall stay the proceeding and communicate
  280  with the court of the other state. If the court of the other
  281  state has jurisdiction, the court of this state shall dismiss
  282  the petition unless the court of the other state determines that
  283  the court of this state is a more appropriate forum.
  284         Section 16. Section 744.88, Florida Statutes, is created to
  285  read:
  286         744.88Transfer of guardianship to another state.—
  287         (1)A guardian appointed in this state, or any other
  288  interested person, may petition the court to transfer the
  289  guardianship to another state.
  290         (2)Notice of a petition under subsection (1) must be given
  291  to all parties who would be entitled to notice of a petition in
  292  this state for the appointment of a guardian or a petition for a
  293  change of residence of the ward.
  294         (3)On the court’s own motion or upon request of the
  295  guardian, the incapacitated or the protected person, or other
  296  person required to be notified of the petition, the court shall
  297  hold a hearing on a petition filed under subsection (1).
  298         (4)The court may issue an order provisionally granting a
  299  petition to transfer a guardianship and shall direct the
  300  guardian to petition for guardianship in the other state if the
  301  court is satisfied that the guardianship will likely be accepted
  302  by the court of the other state and the court finds that:
  303         (a)The incapacitated person is physically present in or is
  304  reasonably expected to move permanently to the other state.
  305         (b)An objection to the transfer has not been made or, if
  306  an objection has been made, the objector has not established
  307  that the transfer would be contrary to the interests of the
  308  incapacitated person.
  309         (c)Plans for care and services for the incapacitated
  310  person in the other state are reasonable and sufficient.
  311         (5)The court shall issue a final order confirming the
  312  transfer and terminating the guardianship upon its receipt of:
  313         (a)A provisional order accepting the proceeding from the
  314  court to which the proceeding is to be transferred which is
  315  issued under provisions similar to s. 744.89.
  316         (b)The documents required, including any required
  317  accountings, to terminate a guardianship in this state.
  318         (6)The guardian of the ward in this state shall file a
  319  petition for discharge within 60 days after receipt of an order
  320  confirming the transfer of the guardianship to another
  321  jurisdiction in compliance with part VII of this chapter.
  322         Section 17. Section 744.89, Florida Statutes, is created to
  323  read:
  324         744.89Accepting guardianship transferred from another
  325  state.—
  326         (1)Within 60 days after the residence of a ward of a
  327  foreign guardian is moved to this state, the foreign guardian
  328  appointed in another state must file a petition to determine
  329  incapacity and a petition to appoint a guardian with the clerk
  330  of court in the county in which the ward resides. The petitions
  331  must include a certified copy of the other state’s provisional
  332  order of transfer in addition to a certified copy of the
  333  guardian’s letters of guardianship or the equivalent.
  334         (2)Notice of the petitions under subsection (1) must be
  335  given to those persons who would be entitled to notice in this
  336  state in the same manner as notice is required to be given in
  337  this state.
  338         (3)The court shall hold a hearing on the petitions filed
  339  pursuant to the procedures set forth in this chapter.
  340         (4)The court shall issue orders on the petitions unless:
  341         (a)An objection is made and the objector establishes that
  342  transfer of the proceeding would be contrary to the best
  343  interests of the ward; or
  344         (b)The guardian is ineligible for appointment in this
  345  state.
  346         (5)Until such time as a guardian is appointed in this
  347  state for the ward or the ward is determined to not require a
  348  guardian in this state, the foreign guardian’s authority is
  349  recognized and given full faith and credit in the courts of this
  350  state, provided that the guardian is qualified to serve as the
  351  guardian of the ward in this state. A foreign guardian who fails
  352  to comply with the requirements of this section has no authority
  353  to act on behalf of the ward in this state.
  354         (6)After appointment of a guardian in this state, the
  355  court may issue such orders as are necessary to complete the
  356  transfer of the foreign guardianship to this state or the
  357  termination of the foreign guardianship, as may be required.
  358         (7)The authority of the guardian of a nonresident ward
  359  shall be recognized and given full faith and credit in the
  360  courts of this state. A guardian appointed in another state or
  361  country may maintain or defend any action in this state as a
  362  representative of the ward unless a guardian has been appointed
  363  in this state.
  364         Section 18. Section 744.90, Florida Statutes, is created to
  365  read:
  366         744.90Uniformity of application and construction.—In
  367  applying and construing this part, consideration must be given
  368  to the need to promote uniformity of the law with respect to its
  369  subject matter among states that enact it.
  370         Section 19. Section 744.91, Florida Statutes, is created to
  371  read:
  372         744.91Relation to Electronic Signatures in Global and
  373  National Commerce Act.—This part modifies, limits, and
  374  supersedes the federal Electronic Signatures in Global and
  375  National Commerce Act, 15 U.S.C. ss. 7001, et seq., but does not
  376  modify, limit, or supersede s. 101(c) of that act, 15 U.S.C. s.
  377  7001(c), or authorize electronic delivery of any of the notices
  378  described in s. 103(b) of that act, 15 U.S.C. s. 7003(b).
  379         Section 20. Section 744.92, Florida Statutes, is created to
  380  read:
  381         744.92Application.—This part applies to guardianship and
  382  protective proceedings that are filed on or after July 1, 2019.
  383         Section 21. This act shall take effect July 1, 2019.