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A BILL TO BE ENTITLED
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AN ACT
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relating to adoption of the Uniform Adult Guardianship and |
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Protective Proceedings Jurisdiction Act. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Part 5, Chapter XIII, Texas Probate Code, is |
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amended by adding Subpart I to read as follows: |
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SUBPART I. UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS |
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JURISDICTION ACT |
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ARTICLE 1. GENERAL PROVISIONS |
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Sec. 1001. SHORT TITLE. This subpart may be cited as the |
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Uniform Adult Guardianship and Protective Proceedings Jurisdiction |
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Act. |
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Sec. 1002. DEFINITIONS. In this subpart: |
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(1) "Adult" means an individual who is 18 years of age |
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or older. |
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(2) "Conservator" means a person appointed by the |
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court to administer the property of an adult, including a person |
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appointed under Section 693 of this code. |
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(3) "Guardian" means a person appointed by the court |
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to make decisions regarding the person of an adult, including a |
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person appointed under Section 693 of this code. |
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(4) "Guardianship order" means an order appointing a |
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guardian. |
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(5) "Guardianship proceeding" means a judicial |
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proceeding in which an order for the appointment of a guardian is |
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sought or has been issued. |
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(6) "Incapacitated person" means an adult for whom a |
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guardian has been appointed. |
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(7) "Party" means the respondent, petitioner, |
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guardian, conservator, or any other person allowed by the court to |
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participate in a guardianship or protective proceeding. |
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(8) "Person," except in the term incapacitated person |
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or protected person, means an individual, corporation, business |
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trust, estate, trust, partnership, limited liability company, |
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association, joint venture, public corporation, government or |
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governmental subdivision, agency, or instrumentality, or other |
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legal or commercial entity. |
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(9) "Protected person" means an adult for whom a |
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protective order has been issued. |
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(10) "Protective order" means an order appointing a |
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conservator or other order related to management of an adult's |
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property. |
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(11) "Protective proceeding" means a judicial |
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proceeding in which a protective order is sought or has been issued. |
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(12) "Record" means information that is inscribed on a |
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tangible medium or that is stored in an electronic or other medium |
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and is retrievable in perceivable form. |
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(13) "Respondent" means an adult for whom a protective |
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order or the appointment of a guardian is sought. |
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(14) "State" means a state of the United States, the |
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District of Columbia, Puerto Rico, the United States Virgin |
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Islands, a federally recognized Indian tribe, or any territory or |
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insular possession subject to the jurisdiction of the United |
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States. |
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Sec. 1003. INTERNATIONAL APPLICATION OF SUBPART. A court of |
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this state may treat a foreign country as if it were a state for the |
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purpose of applying this article and Articles 2, 3, and 5 of this |
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subpart. |
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Sec. 1004. COMMUNICATION BETWEEN COURTS. (a) A court of |
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this state may communicate with a court in another state concerning |
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a proceeding arising under this subpart. The court may allow the |
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parties to participate in the communication. Except as otherwise |
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provided in Subsection (b) of this section, the court shall make a |
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record of the communication. The record may be limited to the fact |
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that the communication occurred. |
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(b) Courts may communicate concerning schedules, calendars, |
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court records, and other administrative matters without making a |
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record. |
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Sec. 1005. COOPERATION BETWEEN COURTS. (a) In a |
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guardianship or protective proceeding in this state, a court of |
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this state may request the appropriate court of another state to do |
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any of the following: |
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(1) hold an evidentiary hearing; |
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(2) order a person in that state to produce evidence or |
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give testimony pursuant to procedures of that state; |
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(3) order that an evaluation or assessment be made of |
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the respondent; |
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(4) order any appropriate investigation of a person |
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involved in a proceeding; |
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(5) forward to the court of this state a certified copy |
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of the transcript or other record of a hearing under Subdivision (1) |
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of this subsection or any other proceeding, any evidence otherwise |
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produced under Subdivision (2) of this subsection, and any |
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evaluation or assessment prepared in compliance with an order under |
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Subdivision (3) or (4) of this subsection; |
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(6) issue any order necessary to assure the appearance |
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in the proceeding of a person whose presence is necessary for the |
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court to make a determination, including the respondent or the |
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incapacitated or protected person; or |
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(7) issue an order authorizing the release of medical, |
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financial, criminal, or other relevant information in that state, |
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including protected health information as defined in 45 C.F.R. |
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Section 164.504. |
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(b) If a court of another state in which a guardianship or |
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protective proceeding is pending requests assistance of the kind |
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provided in Subsection (a) of this section, a court of this state |
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has jurisdiction for the limited purpose of granting the request or |
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making reasonable efforts to comply with the request. |
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Sec. 1006. TAKING TESTIMONY IN ANOTHER STATE. (a) In a |
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guardianship or protective proceeding, in addition to other |
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procedures that may be available, testimony of a witness who is |
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located in another state may be offered by deposition or other means |
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allowable in this state for testimony taken in another state. The |
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court on its own motion may order that the testimony of a witness be |
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taken in another state and may prescribe the manner in which and the |
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terms on which the testimony is to be taken. |
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(b) In a guardianship or protective proceeding, a court in |
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this state may permit a witness located in another state to be |
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deposed or to testify by telephone or audiovisual or other |
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electronic means. A court of this state shall cooperate with the |
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court of the other state in designating an appropriate location for |
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the deposition or testimony. |
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(c) Documentary evidence transmitted from another state to |
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a court of this state by technological means that do not produce an |
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original writing may not be excluded from evidence on an objection |
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based on the best evidence rule. |
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ARTICLE 2. JURISDICTION |
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Sec. 1051. DEFINITIONS; SIGNIFICANT CONNECTION FACTORS. |
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(a) In this article: |
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(1) "Emergency" means a circumstance that likely will |
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result in substantial harm to a respondent's health, safety, or |
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welfare, and for which the appointment of a guardian is necessary |
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because no other person has authority and is willing to act on the |
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respondent's behalf. |
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(2) "Home state" means the state in which the |
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respondent was physically present, including any period of |
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temporary absence, for at least six consecutive months immediately |
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before the filing of a petition for a protective order or the |
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appointment of a guardian; or if none, the state in which the |
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respondent was physically present, including any period of |
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temporary absence, for at least six consecutive months ending |
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within the six months prior to the filing of the petition. |
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(3) "Significant-connection state" means a state, |
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other than the home state, with which a respondent has a significant |
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connection other than mere physical presence and in which |
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substantial evidence concerning the respondent is available. |
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(b) In determining under Sections 1053 and 1101(e) of this |
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code whether a respondent has a significant connection with a |
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particular state, the court shall consider: |
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(1) the location of the respondent's family and other |
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persons required to be notified of the guardianship or protective |
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proceeding; |
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(2) the length of time the respondent at any time was |
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physically present in the state and the duration of any absence; |
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(3) the location of the respondent's property; and |
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(4) the extent to which the respondent has ties to the |
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state such as voting registration, state or local tax return |
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filing, vehicle registration, driver's license, social |
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relationship, and receipt of services. |
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Sec. 1052. EXCLUSIVE BASIS. This article provides the |
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exclusive jurisdictional basis for a court of this state to appoint |
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a guardian or issue a protective order for an adult. |
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Sec. 1053. JURISDICTION. A court of this state has |
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jurisdiction to appoint a guardian or issue a protective order for a |
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respondent if: |
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(1) this state is the respondent's home state; |
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(2) on the date the petition is filed, this state is a |
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significant-connection state and: |
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(A) the respondent does not have a home state or a |
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court of the respondent's home state has declined to exercise |
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jurisdiction because this state is a more appropriate forum; or |
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(B) the respondent has a home state, a petition |
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for an appointment or order is not pending in a court of that state |
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or another significant-connection state, and, before the court |
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makes the appointment or issues the order: |
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(i) a petition for an appointment or order |
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is not filed in the respondent's home state; |
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(ii) an objection to the court's |
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jurisdiction is not filed by a person required to be notified of the |
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proceeding; and |
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(iii) the court in this state concludes |
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that it is an appropriate forum under the factors set forth in |
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Section 1056 of this code; |
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(3) this state does not have jurisdiction under either |
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Subdivision (1) or (2) of this section, the respondent's home state |
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and all significant-connection states have declined to exercise |
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jurisdiction because this state is the more appropriate forum, and |
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jurisdiction in this state is consistent with a provision of the |
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Texas Constitution or the United States Constitution; or |
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(4) the requirements for special jurisdiction under |
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Section 1054 of this code are met. |
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Sec. 1054. SPECIAL JURISDICTION. (a) A court of this state |
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lacking jurisdiction under Section 1053(1), (2), or (3) of this |
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code has special jurisdiction to do any of the following: |
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(1) appoint a guardian in an emergency for a term not |
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to exceed 90 days for a respondent who is physically present in this |
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state; |
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(2) issue a protective order with respect to real or |
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tangible personal property located in this state; or |
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(3) appoint a guardian or conservator for an |
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incapacitated or protected person for whom a provisional order to |
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transfer the proceeding from another state has been issued under |
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procedures similar to Section 1101 of this code. |
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(b) If a petition for the appointment of a guardian in an |
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emergency is brought in this state and this state was not the |
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respondent's home state on the date the petition was filed, the |
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court shall dismiss the proceeding at the request of the court of |
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the home state, if any, whether dismissal is requested before or |
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after the emergency appointment. |
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Sec. 1055. EXCLUSIVE AND CONTINUING JURISDICTION. Except |
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as otherwise provided in Section 1054 of this code, a court that has |
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appointed a guardian or issued a protective order consistent with |
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this subpart has exclusive and continuing jurisdiction over the |
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proceeding until it is terminated by the court or the appointment or |
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order expires by its own terms. |
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Sec. 1056. APPROPRIATE FORUM. (a) A court of this state |
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having jurisdiction under Section 1053 of this code to appoint a |
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guardian or issue a protective order may decline to exercise its |
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jurisdiction if it determines at any time that a court of another |
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state is a more appropriate forum. |
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(b) If a court of this state declines to exercise its |
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jurisdiction under Subsection (a) of this section, it shall either |
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dismiss or stay the proceeding. The court may impose any condition |
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the court considers just and proper, including the condition that a |
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petition for the appointment of a guardian or issuance of a |
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protective order be filed promptly in another state. |
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(c) In determining whether it is an appropriate forum, the |
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court shall consider all relevant factors, including: |
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(1) any expressed preference of the respondent; |
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(2) whether abuse, neglect, or exploitation of the |
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respondent has occurred or is likely to occur and which state could |
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best protect the respondent from the abuse, neglect, or |
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exploitation; |
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(3) the length of time the respondent was physically |
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present in or was a legal resident of this or another state; |
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(4) the distance of the respondent from the court in |
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each state; |
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(5) the financial circumstances of the respondent's |
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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 or conservator. |
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Sec. 1057. JURISDICTION DECLINED BY REASON OF CONDUCT. (a) |
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If at any time a court of this state determines that it acquired |
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jurisdiction to appoint a guardian or issue a protective order |
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because of unjustifiable conduct, 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 respondent or the protection of the respondent's |
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property or prevent a repetition of the unjustifiable conduct, |
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including staying the proceeding until a petition for the |
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appointment of a guardian or issuance of a protective order is filed |
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in a court of another state having 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 respondent and all |
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persons required to be notified of the proceedings have acquiesced |
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in the exercise of the court's jurisdiction; |
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(B) whether it is a more appropriate forum than |
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the court of any other state under the factors set forth in Section |
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1056(c) of this code; and |
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(C) whether the court of any other state would |
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have jurisdiction under factual circumstances in substantial |
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conformity with the jurisdictional standards of Section 1053 of |
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this code. |
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(b) If a court of this state determines that it acquired |
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jurisdiction to appoint a guardian or issue a protective order |
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because a party seeking to invoke its jurisdiction engaged in |
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unjustifiable conduct, it may assess against that party necessary |
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and reasonable expenses, including attorney's fees, investigative |
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fees, court costs, communication expenses, witness fees and |
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expenses, and travel expenses. The court may not assess fees, |
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costs, or expenses of any kind against this state or a governmental |
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subdivision, agency, or instrumentality of this state unless |
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authorized by law other than this subpart. |
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Sec. 1058. NOTICE OF PROCEEDING. If a petition for the |
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appointment of a guardian or issuance of a protective order is |
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brought in this state and this state was not the respondent's home |
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state on the date the petition was filed, in addition to complying |
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with the notice requirements of this state, notice of the petition |
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must be given to those persons who would be entitled to notice of |
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the petition if a proceeding were brought in the respondent's home |
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state. The notice must be given in the same manner as notice is |
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required to be given in this state. |
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Sec. 1059. PROCEEDINGS IN MORE THAN ONE STATE. Except for a |
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petition for the appointment of a guardian in an emergency or |
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issuance of a protective order limited to property located in this |
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state under Section 1054(a)(1) or (2) of this code, if a petition |
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for the appointment of a guardian or issuance of a protective order |
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is filed in this state and in another state and neither petition has |
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been dismissed or withdrawn, the following rules apply: |
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(1) If the court in this state has jurisdiction under |
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Section 1053 of this code, it may proceed with the case unless a |
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court in another state acquires jurisdiction under provisions |
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similar to Section 1053 of this code before the appointment or |
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issuance of the order. |
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(2) If the court in this state does not have |
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jurisdiction under Section 1053 of this code, whether at the time |
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the petition is filed or at any time before the appointment or |
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issuance of the order, the court shall stay the proceeding and |
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communicate with the court in the other state. If the court in the |
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other state has jurisdiction, the court in this state shall dismiss |
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the petition unless the court in the other state determines that the |
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court in this state is a more appropriate forum. |
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ARTICLE 3. TRANSFER OF GUARDIANSHIP OR |
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CONSERVATORSHIP |
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Sec. 1101. TRANSFER OF GUARDIANSHIP OR CONSERVATORSHIP TO |
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ANOTHER STATE. (a) A guardian or conservator appointed in this |
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state may petition the court to transfer the guardianship or |
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conservatorship to another state. |
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(b) Notice of a petition under Subsection (a) of this |
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section must be given to the persons that would be entitled to |
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notice of a petition in this state for the appointment of a guardian |
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or conservator. |
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(c) On the court's own motion or on request of the guardian |
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or conservator, the incapacitated or protected person, or another |
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person required to be notified of the petition, the court shall hold |
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a hearing on a petition filed pursuant to Subsection (a) of this |
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section. |
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(d) The court shall issue an order provisionally granting a |
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petition to transfer a guardianship and shall direct the guardian |
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to petition for guardianship in the other state if the court is |
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satisfied that the guardianship will be accepted by the court in the |
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other state and the court finds that: |
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(1) the incapacitated person is physically present in |
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or is reasonably expected to move permanently to the other state; |
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(2) an objection to the transfer has not been made or, |
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if an objection has been made, the objector has not established that |
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the transfer would be contrary to the interests of the |
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incapacitated person; and |
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(3) plans for care and services for the incapacitated |
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person in the other state are reasonable and sufficient. |
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(e) The court shall issue a provisional order granting a |
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petition to transfer a conservatorship and shall direct the |
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conservator to petition for conservatorship in the other state if |
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the court is satisfied that the conservatorship will be accepted by |
|
|
the court of the other state and the court finds that: |
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(1) the protected person is physically present in or |
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is reasonably expected to move permanently to the other state, or |
|
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the protected person has a significant connection to the other |
|
|
state considering the factors in Section 1051(b) of this code; |
|
|
(2) an objection to the transfer has not been made or, |
|
|
if an objection has been made, the objector has not established that |
|
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the transfer would be contrary to the interests of the protected |
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person; and |
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(3) adequate arrangements will be made for management |
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of the protected person's property. |
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(f) The court shall issue a final order confirming the |
|
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transfer and terminating the guardianship or conservatorship upon |
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its receipt of: |
|
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(1) a provisional order accepting the proceeding from |
|
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the court to which the proceeding is to be transferred which is |
|
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issued under provisions similar to Section 1102 of this code; and |
|
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(2) the documents required to terminate a guardianship |
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or conservatorship in this state. |
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Sec. 1102. ACCEPTING GUARDIANSHIP OR CONSERVATORSHIP |
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TRANSFERRED FROM ANOTHER STATE. (a) To confirm transfer of a |
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guardianship or conservatorship transferred to this state under |
|
|
provisions similar to Section 1101 of this code, the guardian or |
|
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conservator must petition the court in this state to accept the |
|
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guardianship or conservatorship. The petition must include a |
|
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certified copy of the other state's provisional order of transfer. |
|
|
(b) Notice of a petition under Subsection (a) of this |
|
|
section must be given to those persons that would be entitled to |
|
|
notice if the petition were a petition for the appointment of a |
|
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guardian or issuance of a protective order in both the transferring |
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state and this state. The notice must be given in the same manner as |
|
|
notice is required to be given in this state. |
|
|
(c) On the court's own motion or on request of the guardian |
|
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or conservator, the incapacitated or protected person, or another |
|
|
person required to be notified of the proceeding, the court shall |
|
|
hold a hearing on a petition filed pursuant to Subsection (a) of |
|
|
this section. |
|
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(d) The court shall issue an order provisionally granting a |
|
|
petition filed under Subsection (a) of this section unless: |
|
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(1) an objection is made and the objector establishes |
|
|
that transfer of the proceeding would be contrary to the interests |
|
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of the incapacitated or protected person; or |
|
|
(2) the guardian or conservator is ineligible for |
|
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appointment in this state. |
|
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(e) The court shall issue a final order accepting the |
|
|
proceeding and appointing the guardian or conservator as guardian |
|
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or conservator in this state on its receipt from the court from |
|
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which the proceeding is being transferred of a final order issued |
|
|
under provisions similar to Section 1101 of this code transferring |
|
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the proceeding to this state. |
|
|
(f) Not later than 90 days after issuance of a final order |
|
|
accepting transfer of a guardianship or conservatorship, the court |
|
|
shall determine whether the guardianship or conservatorship needs |
|
|
to be modified to conform to the law of this state. |
|
|
(g) In granting a petition under this section, the court |
|
|
shall recognize a guardianship or conservatorship order from the |
|
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other state, including the determination of the incapacitated or |
|
|
protected person's incapacity and the appointment of the guardian |
|
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or conservator. |
|
|
(h) The denial by a court of this state of a petition to |
|
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accept a guardianship or conservatorship transferred from another |
|
|
state does not affect the ability of the guardian or conservator to |
|
|
seek appointment as guardian or conservator in this state under |
|
|
Section 682 of this code if the court has jurisdiction to make an |
|
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appointment other than by reason of the provisional order of |
|
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transfer. |
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ARTICLE 4. REGISTRATION AND RECOGNITION OF ORDERS FROM OTHER STATES |
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Sec. 1151. REGISTRATION OF GUARDIANSHIP ORDERS. If a |
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guardian has been appointed in another state and a petition for the |
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appointment of a guardian is not pending in this state, the guardian |
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appointed in the other state, after giving notice to the appointing |
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court of an intent to register, may register the guardianship order |
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in this state by filing as a foreign judgment in a court, in any |
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appropriate county of this state, certified copies of the order and |
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letters of office. |
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Sec. 1152. REGISTRATION OF PROTECTIVE ORDERS. If a |
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conservator has been appointed in another state and a petition for a |
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protective order is not pending in this state, the conservator |
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appointed in the other state, after giving notice to the appointing |
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court of an intent to register, may register the protective order in |
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this state by filing as a foreign judgment in a court of this state, |
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in any county in which property belonging to the protected person is |
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located, certified copies of the order and letters of office and of |
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any bond. |
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Sec. 1153. EFFECT OF REGISTRATION. (a) On registration of a |
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guardianship or protective order from another state, the guardian |
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or conservator may exercise in this state all powers authorized in |
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the order of appointment except as prohibited under the laws of this |
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state, including maintaining actions and proceedings in this state |
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and, if the guardian or conservator is not a resident of this state, |
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subject to any conditions imposed on nonresident parties. |
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(b) A court of this state may grant any relief available |
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under this subpart and other laws of this state to enforce a |
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registered order. |
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ARTICLE 5. MISCELLANEOUS PROVISIONS |
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Sec. 1201. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In |
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applying and construing this subpart, consideration must be given |
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to the need to promote uniformity of the law with respect to the |
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subject matter of this subpart among states that enact a law |
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substantially similar to this subpart. |
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Sec. 1202. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND |
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NATIONAL COMMERCE ACT. This subpart modifies, limits, and |
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supersedes the federal Electronic Signatures in Global and National |
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Commerce Act (15 U.S.C. Section 7001 et seq.) but does not modify, |
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limit, or supersede Section 101(c) of that Act (15 U.S.C. Section |
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7001(c)) or authorize electronic delivery of any of the notices |
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described in Section 103(b) of that Act (15 U.S.C. Section |
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7003(b)). |
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SECTION 2. (a) Subpart I, Part 5, Chapter XIII, Texas |
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Probate Code, as added by this Act, applies to guardianship and |
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protective proceedings instituted on or after the effective date of |
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this Act. |
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(b) Articles 1, 3, 4, and 5, Subpart I, Part 5, Chapter XIII, |
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Texas Probate Code, as added by this Act, apply to proceedings |
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instituted before the effective date of this Act, regardless of |
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whether a guardianship or protective order has been issued by a |
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court. |
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SECTION 3. This Act takes effect September 1, 2009. |