81R7791 CLG-F
By: Truitt H.B. No. 2260
A BILL TO BE ENTITLED
AN ACT
relating to adoption of the Uniform Adult Guardianship and
Protective Proceedings Jurisdiction Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Part 5, Chapter XIII, Texas Probate Code, is
amended by adding Subpart I to read as follows:
SUBPART I. UNIFORM ADULT GUARDIANSHIP AND PROTECTIVE PROCEEDINGS
JURISDICTION ACT
ARTICLE 1. GENERAL PROVISIONS
Sec. 1001. SHORT TITLE. This subpart may be cited as the
Uniform Adult Guardianship and Protective Proceedings Jurisdiction
Act.
Sec. 1002. DEFINITIONS. In this subpart:
(1) "Adult" means an individual who is 18 years of age
or older.
(2) "Conservator" means a person appointed by the
court to administer the property of an adult, including a person
appointed under Section 693 of this code.
(3) "Guardian" means a person appointed by the court
to make decisions regarding the person of an adult, including a
person appointed under Section 693 of this code.
(4) "Guardianship order" means an order appointing a
guardian.
(5) "Guardianship proceeding" means a judicial
proceeding in which an order for the appointment of a guardian is
sought or has been issued.
(6) "Incapacitated person" means an adult for whom a
guardian has been appointed.
(7) "Party" means the respondent, petitioner,
guardian, conservator, or any other person allowed by the court to
participate in a guardianship or protective proceeding.
(8) "Person," except in the term incapacitated person
or protected person, means an individual, corporation, business
trust, estate, trust, partnership, limited liability company,
association, joint venture, public corporation, government or
governmental subdivision, agency, or instrumentality, or other
legal or commercial entity.
(9) "Protected person" means an adult for whom a
protective order has been issued.
(10) "Protective order" means an order appointing a
conservator or other order related to management of an adult's
property.
(11) "Protective proceeding" means a judicial
proceeding in which a protective order is sought or has been issued.
(12) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium
and is retrievable in perceivable form.
(13) "Respondent" means an adult for whom a protective
order or the appointment of a guardian is sought.
(14) "State" means a state of the United States, the
District of Columbia, Puerto Rico, the United States Virgin
Islands, a federally recognized Indian tribe, or any territory or
insular possession subject to the jurisdiction of the United
States.
Sec. 1003. INTERNATIONAL APPLICATION OF SUBPART. A court of
this state may treat a foreign country as if it were a state for the
purpose of applying this article and Articles 2, 3, and 5 of this
subpart.
Sec. 1004. COMMUNICATION BETWEEN COURTS. (a) A court of
this state may communicate with a court in another state concerning
a proceeding arising under this subpart. The court may allow the
parties to participate in the communication. Except as otherwise
provided in Subsection (b) of this section, the court shall make a
record of the communication. The record may be limited to the fact
that the communication occurred.
(b) Courts may communicate concerning schedules, calendars,
court records, and other administrative matters without making a
record.
Sec. 1005. COOPERATION BETWEEN COURTS. (a) In a
guardianship or protective proceeding in this state, a court of
this state may request the appropriate court of another state to do
any of the following:
(1) hold an evidentiary hearing;
(2) order a person in that state to produce evidence or
give testimony pursuant to procedures of that state;
(3) order that an evaluation or assessment be made of
the respondent;
(4) order any appropriate investigation of a person
involved in a proceeding;
(5) forward to the court of this state a certified copy
of the transcript or other record of a hearing under Subdivision (1)
of this subsection or any other proceeding, any evidence otherwise
produced under Subdivision (2) of this subsection, and any
evaluation or assessment prepared in compliance with an order under
Subdivision (3) or (4) of this subsection;
(6) issue any order necessary to assure the appearance
in the proceeding of a person whose presence is necessary for the
court to make a determination, including the respondent or the
incapacitated or protected person; or
(7) issue an order authorizing the release of medical,
financial, criminal, or other relevant information in that state,
including protected health information as defined in 45 C.F.R.
Section 164.504.
(b) If a court of another state in which a guardianship or
protective proceeding is pending requests assistance of the kind
provided in Subsection (a) of this section, a court of this state
has jurisdiction for the limited purpose of granting the request or
making reasonable efforts to comply with the request.
Sec. 1006. TAKING TESTIMONY IN ANOTHER STATE. (a) In a
guardianship or protective proceeding, in addition to other
procedures that may be available, testimony of a witness who is
located in another state may be offered by deposition or other means
allowable in this state for testimony taken in another state. The
court on its own motion may order that the testimony of a witness be
taken in another state and may prescribe the manner in which and the
terms on which the testimony is to be taken.
(b) In a guardianship or protective proceeding, a court in
this state may permit a witness located in another state to be
deposed or to testify by telephone or audiovisual or other
electronic means. A court of this state shall cooperate with the
court of the other state in designating an appropriate location for
the deposition or testimony.
(c) Documentary evidence transmitted from another state to
a court of this state by technological means that do not produce an
original writing may not be excluded from evidence on an objection
based on the best evidence rule.
ARTICLE 2. JURISDICTION
Sec. 1051. DEFINITIONS; SIGNIFICANT CONNECTION FACTORS.
(a) In this article:
(1) "Emergency" means a circumstance that likely will
result in substantial harm to a respondent's health, safety, or
welfare, and for which the appointment of a guardian is necessary
because no other person has authority and is willing to act on the
respondent's behalf.
(2) "Home state" means the state in which the
respondent was physically present, including any period of
temporary absence, for at least six consecutive months immediately
before the filing of a petition for a protective order or the
appointment of a guardian; or if none, the state in which the
respondent was physically present, including any period of
temporary absence, for at least six consecutive months ending
within the six months prior to the filing of the petition.
(3) "Significant-connection state" means a state,
other than the home state, with which a respondent has a significant
connection other than mere physical presence and in which
substantial evidence concerning the respondent is available.
(b) In determining under Sections 1053 and 1101(e) of this
code whether a respondent has a significant connection with a
particular state, the court shall consider:
(1) the location of the respondent's family and other
persons required to be notified of the guardianship or protective
proceeding;
(2) the length of time the respondent at any time was
physically present in the state and the duration of any absence;
(3) the location of the respondent's property; and
(4) the extent to which the respondent has ties to the
state such as voting registration, state or local tax return
filing, vehicle registration, driver's license, social
relationship, and receipt of services.
Sec. 1052. EXCLUSIVE BASIS. This article provides the
exclusive jurisdictional basis for a court of this state to appoint
a guardian or issue a protective order for an adult.
Sec. 1053. JURISDICTION. A court of this state has
jurisdiction to appoint a guardian or issue a protective order for a
respondent if:
(1) this state is the respondent's home state;
(2) on the date the petition is filed, this state is a
significant-connection state and:
(A) the respondent does not have a home state or a
court of the respondent's home state has declined to exercise
jurisdiction because this state is a more appropriate forum; or
(B) the respondent has a home state, a petition
for an appointment or order is not pending in a court of that state
or another significant-connection state, and, before the court
makes the appointment or issues the order:
(i) a petition for an appointment or order
is not filed in the respondent's home state;
(ii) an objection to the court's
jurisdiction is not filed by a person required to be notified of the
proceeding; and
(iii) the court in this state concludes
that it is an appropriate forum under the factors set forth in
Section 1056 of this code;
(3) this state does not have jurisdiction under either
Subdivision (1) or (2) of this section, the respondent's home state
and all significant-connection states have declined to exercise
jurisdiction because this state is the more appropriate forum, and
jurisdiction in this state is consistent with a provision of the
Texas Constitution or the United States Constitution; or
(4) the requirements for special jurisdiction under
Section 1054 of this code are met.
Sec. 1054. SPECIAL JURISDICTION. (a) A court of this state
lacking jurisdiction under Section 1053(1), (2), or (3) of this
code has special jurisdiction to do any of the following:
(1) appoint a guardian in an emergency for a term not
to exceed 90 days for a respondent who is physically present in this
state;
(2) issue a protective order with respect to real or
tangible personal property located in this state; or
(3) appoint a guardian or conservator for an
incapacitated or protected person for whom a provisional order to
transfer the proceeding from another state has been issued under
procedures similar to Section 1101 of this code.
(b) If a petition for the appointment of a guardian in an
emergency is brought in this state and this state was not the
respondent's home state on the date the petition was filed, the
court shall dismiss the proceeding at the request of the court of
the home state, if any, whether dismissal is requested before or
after the emergency appointment.
Sec. 1055. EXCLUSIVE AND CONTINUING JURISDICTION. Except
as otherwise provided in Section 1054 of this code, a court that has
appointed a guardian or issued a protective order consistent with
this subpart has exclusive and continuing jurisdiction over the
proceeding until it is terminated by the court or the appointment or
order expires by its own terms.
Sec. 1056. APPROPRIATE FORUM. (a) A court of this state
having jurisdiction under Section 1053 of this code to appoint a
guardian or issue a protective order may decline to exercise its
jurisdiction if it determines at any time that a court of another
state is a more appropriate forum.
(b) If a court of this state declines to exercise its
jurisdiction under Subsection (a) of this section, it shall either
dismiss or stay the proceeding. The court may impose any condition
the court considers just and proper, including the condition that a
petition for the appointment of a guardian or issuance of a
protective order be filed promptly in another state.
(c) In determining whether it is an appropriate forum, the
court shall consider all relevant factors, including:
(1) any expressed preference of the respondent;
(2) whether abuse, neglect, or exploitation of the
respondent has occurred or is likely to occur and which state could
best protect the respondent from the abuse, neglect, or
exploitation;
(3) the length of time the respondent was physically
present in or was a legal resident of this or another state;
(4) the distance of the respondent from the court in
each state;
(5) the financial circumstances of the respondent's
estate;
(6) the nature and location of the evidence;
(7) the ability of the court in each state to decide
the issue expeditiously and the procedures necessary to present
evidence;
(8) the familiarity of the court of each state with the
facts and issues in the proceeding; and
(9) if an appointment were made, the court's ability to
monitor the conduct of the guardian or conservator.
Sec. 1057. JURISDICTION DECLINED BY REASON OF CONDUCT. (a)
If at any time a court of this state determines that it acquired
jurisdiction to appoint a guardian or issue a protective order
because of unjustifiable conduct, the court may:
(1) decline to exercise jurisdiction;
(2) exercise jurisdiction for the limited purpose of
fashioning an appropriate remedy to ensure the health, safety, and
welfare of the respondent or the protection of the respondent's
property or prevent a repetition of the unjustifiable conduct,
including staying the proceeding until a petition for the
appointment of a guardian or issuance of a protective order is filed
in a court of another state having jurisdiction; or
(3) continue to exercise jurisdiction after
considering:
(A) the extent to which the respondent and all
persons required to be notified of the proceedings have acquiesced
in the exercise of the court's jurisdiction;
(B) whether it is a more appropriate forum than
the court of any other state under the factors set forth in Section
1056(c) of this code; and
(C) whether the court of any other state would
have jurisdiction under factual circumstances in substantial
conformity with the jurisdictional standards of Section 1053 of
this code.
(b) If a court of this state determines that it acquired
jurisdiction to appoint a guardian or issue a protective order
because a party seeking to invoke its jurisdiction engaged in
unjustifiable conduct, it may assess against that party necessary
and reasonable expenses, including attorney's fees, investigative
fees, court costs, communication expenses, witness fees and
expenses, and travel expenses. The court may not assess fees,
costs, or expenses of any kind against this state or a governmental
subdivision, agency, or instrumentality of this state unless
authorized by law other than this subpart.
Sec. 1058. NOTICE OF PROCEEDING. If a petition for the
appointment of a guardian or issuance of a protective order is
brought in this state and this state was not the respondent's home
state on the date the petition was filed, in addition to complying
with the notice requirements of this state, notice of the petition
must be given to those persons who would be entitled to notice of
the petition if a proceeding were brought in the respondent's home
state. The notice must be given in the same manner as notice is
required to be given in this state.
Sec. 1059. PROCEEDINGS IN MORE THAN ONE STATE. Except for a
petition for the appointment of a guardian in an emergency or
issuance of a protective order limited to property located in this
state under Section 1054(a)(1) or (2) of this code, if a petition
for the appointment of a guardian or issuance of a protective order
is filed in this state and in another state and neither petition has
been dismissed or withdrawn, the following rules apply:
(1) If the court in this state has jurisdiction under
Section 1053 of this code, it may proceed with the case unless a
court in another state acquires jurisdiction under provisions
similar to Section 1053 of this code before the appointment or
issuance of the order.
(2) If the court in this state does not have
jurisdiction under Section 1053 of this code, whether at the time
the petition is filed or at any time before the appointment or
issuance of the order, the court shall stay the proceeding and
communicate with the court in the other state. If the court in the
other state has jurisdiction, the court in this state shall dismiss
the petition unless the court in the other state determines that the
court in this state is a more appropriate forum.
ARTICLE 3. TRANSFER OF GUARDIANSHIP OR
CONSERVATORSHIP
Sec. 1101. TRANSFER OF GUARDIANSHIP OR CONSERVATORSHIP TO
ANOTHER STATE. (a) A guardian or conservator appointed in this
state may petition the court to transfer the guardianship or
conservatorship to another state.
(b) Notice of a petition under Subsection (a) of this
section must be given to the persons that would be entitled to
notice of a petition in this state for the appointment of a guardian
or conservator.
(c) On the court's own motion or on request of the guardian
or conservator, the incapacitated or protected person, or another
person required to be notified of the petition, the court shall hold
a hearing on a petition filed pursuant to Subsection (a) of this
section.
(d) The court shall issue an order provisionally granting a
petition to transfer a guardianship and shall direct the guardian
to petition for guardianship in the other state if the court is
satisfied that the guardianship will be accepted by the court in the
other state and the court finds that:
(1) the incapacitated person is physically present in
or is reasonably expected to move permanently to the other state;
(2) an objection to the transfer has not been made or,
if an objection has been made, the objector has not established that
the transfer would be contrary to the interests of the
incapacitated person; and
(3) plans for care and services for the incapacitated
person in the other state are reasonable and sufficient.
(e) The court shall issue a provisional order granting a
petition to transfer a conservatorship and shall direct the
conservator to petition for conservatorship in the other state if
the court is satisfied that the conservatorship will be accepted by
the court of the other state and the court finds that:
(1) the protected person is physically present in or
is reasonably expected to move permanently to the other state, or
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
the transfer would be contrary to the interests of the protected
person; and
(3) adequate arrangements will be made for management
of the protected person's property.
(f) The court shall issue a final order confirming the
transfer and terminating the guardianship or conservatorship upon
its receipt of:
(1) a provisional order accepting the proceeding from
the court to which the proceeding is to be transferred which is
issued under provisions similar to Section 1102 of this code; and
(2) the documents required to terminate a guardianship
or conservatorship in this state.
Sec. 1102. ACCEPTING GUARDIANSHIP OR CONSERVATORSHIP
TRANSFERRED FROM ANOTHER STATE. (a) To confirm transfer of a
guardianship or conservatorship transferred to this state under
provisions similar to Section 1101 of this code, the guardian or
conservator must petition the court in this state to accept the
guardianship or conservatorship. The petition must include a
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
guardian or issuance of a protective order in both the transferring
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
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.
(d) The court shall issue an order provisionally granting a
petition filed under Subsection (a) of this section unless:
(1) an objection is made and the objector establishes
that transfer of the proceeding would be contrary to the interests
of the incapacitated or protected person; or
(2) the guardian or conservator is ineligible for
appointment in this state.
(e) The court shall issue a final order accepting the
proceeding and appointing the guardian or conservator as guardian
or conservator in this state on its receipt from the court from
which the proceeding is being transferred of a final order issued
under provisions similar to Section 1101 of this code transferring
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
other state, including the determination of the incapacitated or
protected person's incapacity and the appointment of the guardian
or conservator.
(h) The denial by a court of this state of a petition to
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
appointment other than by reason of the provisional order of
transfer.
ARTICLE 4. REGISTRATION AND RECOGNITION OF ORDERS FROM OTHER STATES
Sec. 1151. REGISTRATION OF GUARDIANSHIP ORDERS. If a
guardian has been appointed in another state and a petition for the
appointment of a guardian is not pending in this state, the guardian
appointed in the other state, after giving notice to the appointing
court of an intent to register, may register the guardianship order
in this state by filing as a foreign judgment in a court, in any
appropriate county of this state, certified copies of the order and
letters of office.
Sec. 1152. REGISTRATION OF PROTECTIVE ORDERS. If a
conservator has been appointed in another state and a petition for a
protective order is not pending in this state, the conservator
appointed in the other state, after giving notice to the appointing
court of an intent to register, may register the protective order in
this state by filing as a foreign judgment in a court of this state,
in any county in which property belonging to the protected person is
located, certified copies of the order and letters of office and of
any bond.
Sec. 1153. EFFECT OF REGISTRATION. (a) On registration of a
guardianship or protective order from another state, the guardian
or conservator may exercise in this state all powers authorized in
the order of appointment except as prohibited under the laws of this
state, including maintaining actions and proceedings in this state
and, if the guardian or conservator is not a resident of this state,
subject to any conditions imposed on nonresident parties.
(b) A court of this state may grant any relief available
under this subpart and other laws of this state to enforce a
registered order.
ARTICLE 5. MISCELLANEOUS PROVISIONS
Sec. 1201. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In
applying and construing this subpart, consideration must be given
to the need to promote uniformity of the law with respect to the
subject matter of this subpart among states that enact a law
substantially similar to this subpart.
Sec. 1202. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND
NATIONAL COMMERCE ACT. This subpart modifies, limits, and
supersedes the federal Electronic Signatures in Global and National
Commerce Act (15 U.S.C. Section 7001 et seq.) but does not modify,
limit, or supersede Section 101(c) of that Act (15 U.S.C. Section
7001(c)) or authorize electronic delivery of any of the notices
described in Section 103(b) of that Act (15 U.S.C. Section
7003(b)).
SECTION 2. (a) Subpart I, Part 5, Chapter XIII, Texas
Probate Code, as added by this Act, applies to guardianship and
protective proceedings instituted on or after the effective date of
this Act.
(b) Articles 1, 3, 4, and 5, Subpart I, Part 5, Chapter XIII,
Texas Probate Code, as added by this Act, apply to proceedings
instituted before the effective date of this Act, regardless of
whether a guardianship or protective order has been issued by a
court.
SECTION 3. This Act takes effect September 1, 2009.