Bill Text: FL S2626 | 2010 | Regular Session | Introduced
Bill Title: Adult Guardianship [SPSC]
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2010-04-30 - Died in Committee on Judiciary [S2626 Detail]
Download: Florida-2010-S2626-Introduced.html
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. 32 33 Be It Enacted by the Legislature of the State of Florida: 34 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 mustmay213 be executed by an adultperson. 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.; and236 (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.
