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A BILL TO BE ENTITLED
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AN ACT
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relating to a determination of whether a probate court of this state |
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is a more appropriate forum than a court of another state with |
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respect to guardianship proceedings involving adults. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Sections 894(a) and (d), Texas Probate Code, are |
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amended to read as follows: |
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(a) A court in which a guardianship proceeding is filed for |
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a minor and in which venue of the proceeding is proper may delay |
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further action in the proceeding in that court if: |
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(1) another guardianship proceeding involving a |
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matter at issue in the proceeding filed in the court is subsequently |
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filed in a court in a foreign jurisdiction; and |
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(2) venue of the proceeding in the foreign court is |
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proper. |
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(d) The court shall resume the guardianship proceeding |
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involving a minor if the court determines that venue is more |
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suitable in that court. If the court determines that venue is more |
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suitable in the foreign court, the court shall, with the consent of |
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the foreign court, transfer the proceeding to the foreign court. |
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SECTION 2. Subpart G, Part 5, Chapter XIII, Texas Probate |
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Code, is amended by adding Section 895 to read as follows: |
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Sec. 895. DETERMINATION OF MOST APPROPRIATE FORUM FOR |
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GUARDIANSHIP PROCEEDINGS FOR ADULTS. (a) This section applies |
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only to a guardianship proceeding in which an order for the |
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appointment of a guardian for an adult is sought or has been issued. |
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(b) In this section, "incapacitated adult" means an adult |
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ward or an adult for whom the appointment of a guardian is sought, |
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as applicable. |
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(c) A court of this state having jurisdiction under this |
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chapter or venue under Section 610 of this code to appoint a |
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guardian shall decline to exercise its jurisdiction if the court |
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determines at any time that a court of another state is a more |
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appropriate forum. |
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(d) If a court of this state declines to exercise its |
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jurisdiction under Subsection (c) of this section, the court shall |
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either dismiss or stay the guardianship proceeding. The court may |
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impose any condition the court considers just and proper, including |
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the condition that a petition for the appointment of a guardian or |
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issuance of a protective order be filed promptly in another state. |
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(e) In determining whether it is an appropriate forum, a |
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court of this state shall consider all relevant factors, including: |
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(1) any expressed preference of the incapacitated |
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adult; |
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(2) whether abuse, neglect, or exploitation of the |
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incapacitated adult has occurred or is likely to occur and which |
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state could best protect the adult from the abuse, neglect, or |
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exploitation; |
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(3) the length of time the incapacitated adult was |
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physically present in or was a legal resident of this or another |
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state; |
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(4) the distance of the incapacitated adult from the |
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court in each state; |
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(5) the financial circumstances of the incapacitated |
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adult's estate; |
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(6) the nature and location of the evidence; |
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(7) the ability of the court in each state to decide |
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the issue expeditiously and the procedures necessary to present |
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evidence; |
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(8) the familiarity of the court of each state with the |
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facts and issues in the proceeding; and |
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(9) if an appointment were made, the court's ability to |
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monitor the conduct of the guardian of the person or estate, or |
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both. |
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(f) If at any time a court of this state determines that it |
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acquired jurisdiction to appoint a guardian of the person or |
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estate, or both, of an adult ward because of unjustifiable conduct, |
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the court may: |
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(1) decline to exercise jurisdiction; |
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(2) exercise jurisdiction for the limited purpose of |
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fashioning an appropriate remedy to ensure the health, safety, and |
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welfare of the incapacitated adult or the protection of the |
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incapacitated adult's property or prevent a repetition of the |
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unjustifiable conduct, including staying the proceeding until a |
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petition for the appointment of a guardian or issuance of a |
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protective order is filed in a court of another state having |
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jurisdiction; or |
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(3) continue to exercise jurisdiction after |
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considering: |
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(A) the extent to which the incapacitated adult |
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and all persons required to be notified of the proceedings have |
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acquiesced in the exercise of the court's jurisdiction; |
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(B) whether the court of this state is a more |
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appropriate forum than the court of any other state under the |
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factors set forth in Subsection (e) of this section; and |
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(C) whether the court of any other state would |
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have jurisdiction under the factual circumstances of the matter. |
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(g) If a court of this state determines that it acquired |
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jurisdiction to appoint a guardian of the person or estate, or both, |
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of an adult ward because a party seeking to invoke its jurisdiction |
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engaged in unjustifiable conduct, it may assess against that party |
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necessary and reasonable expenses, including attorney's fees, |
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investigative fees, court costs, communication expenses, witness |
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fees and expenses, and travel expenses. The court may not assess |
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fees, costs, or expenses of any kind against this state or a |
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governmental subdivision, agency, or instrumentality of this state |
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unless authorized by other law. |
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SECTION 3. The changes in law made by this Act apply only to |
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a guardianship proceeding filed on or after the effective date of |
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this Act. A guardianship proceeding filed before the effective |
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date of this Act is governed by the law in effect on the date the |
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proceeding was filed, and the former law is continued in effect for |
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that purpose. |
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SECTION 4. This Act takes effect September 1, 2009. |