81R28056 CLG-D
By: Truitt H.B. No. 2260
Substitute the following for H.B. No. 2260:
By: Madden C.S.H.B. No. 2260
A BILL TO BE ENTITLED
AN ACT
relating to a determination of whether a probate court of this state
is a more appropriate forum than a court of another state with
respect to guardianship proceedings involving adults.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 894(a) and (d), Texas Probate Code, are
amended to read as follows:
(a) A court in which a guardianship proceeding is filed for
a minor and in which venue of the proceeding is proper may delay
further action in the proceeding in that court if:
(1) another guardianship proceeding involving a
matter at issue in the proceeding filed in the court is subsequently
filed in a court in a foreign jurisdiction; and
(2) venue of the proceeding in the foreign court is
proper.
(d) The court shall resume the guardianship proceeding
involving a minor if the court determines that venue is more
suitable in that court. If the court determines that venue is more
suitable in the foreign court, the court shall, with the consent of
the foreign court, transfer the proceeding to the foreign court.
SECTION 2. Subpart G, Part 5, Chapter XIII, Texas Probate
Code, is amended by adding Section 895 to read as follows:
Sec. 895. DETERMINATION OF MOST APPROPRIATE FORUM FOR
GUARDIANSHIP PROCEEDINGS FOR ADULTS. (a) This section applies
only to a guardianship proceeding in which an order for the
appointment of a guardian for an adult is sought or has been issued.
(b) In this section, "incapacitated adult" means an adult
ward or an adult for whom the appointment of a guardian is sought,
as applicable.
(c) A court of this state having jurisdiction under this
chapter or venue under Section 610 of this code to appoint a
guardian shall decline to exercise its jurisdiction if the court
determines at any time that a court of another state is a more
appropriate forum.
(d) If a court of this state declines to exercise its
jurisdiction under Subsection (c) of this section, the court shall
either dismiss or stay the guardianship 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.
(e) In determining whether it is an appropriate forum, a
court of this state shall consider all relevant factors, including:
(1) any expressed preference of the incapacitated
adult;
(2) whether abuse, neglect, or exploitation of the
incapacitated adult has occurred or is likely to occur and which
state could best protect the adult from the abuse, neglect, or
exploitation;
(3) the length of time the incapacitated adult was
physically present in or was a legal resident of this or another
state;
(4) the distance of the incapacitated adult from the
court in each state;
(5) the financial circumstances of the incapacitated
adult'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 of the person or estate, or
both.
(f) If at any time a court of this state determines that it
acquired jurisdiction to appoint a guardian of the person or
estate, or both, of an adult ward 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 incapacitated adult or the protection of the
incapacitated adult'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 incapacitated adult
and all persons required to be notified of the proceedings have
acquiesced in the exercise of the court's jurisdiction;
(B) whether the court of this state is a more
appropriate forum than the court of any other state under the
factors set forth in Subsection (e) of this section; and
(C) whether the court of any other state would
have jurisdiction under the factual circumstances of the matter.
(g) If a court of this state determines that it acquired
jurisdiction to appoint a guardian of the person or estate, or both,
of an adult ward 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 other law.
SECTION 3. The changes in law made by this Act apply only to
a guardianship proceeding filed on or after the effective date of
this Act. A guardianship proceeding filed before the effective
date of this Act is governed by the law in effect on the date the
proceeding was filed, and the former law is continued in effect for
that purpose.
SECTION 4. This Act takes effect September 1, 2009.