By: Hartnett H.B. No. 3080
A BILL TO BE ENTITLED
AN ACT
relating to guardianships and other matters relating to
incapacitated persons.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 665, Texas Probate Code, is amended by
amending Subsections (a), (b), (c), and (d) and adding Subsections
(a-1) and (d-1) to read as follows:
(a) The court may authorize compensation for a guardian or a
temporary guardian serving as a guardian of the person alone from
available funds of the ward's estate or other funds available for
that purpose. The court may [shall] set the compensation in an
amount not exceeding five percent of the ward's gross income.
(a-1) In determining whether to authorize compensation for
a guardian under this section, the court shall consider the ward's
monthly income from all sources and whether the ward receives
medical assistance under the state Medicaid program.
(b) The guardian or temporary guardian of an estate is
entitled to reasonable compensation on application to the court at
the time the court approves any annual accounting or final
accounting filed by the guardian or temporary guardian under this
chapter. A fee of five percent of the gross income of the ward's
estate and five percent of all money paid out of the estate, subject
to the award of an additional amount under Subsection (c) of this
section following a review under Subsection (c)(1) of this section,
is considered reasonable under this subsection if the court finds
that the guardian or temporary guardian has taken care of and
managed the estate in compliance with the standards of this
chapter.
(c) On application of an interested person or on its own
motion, the court may:
(1) review and modify the amount of compensation
authorized under Subsection (a) or [Subsection] (b) of this section
if the court finds that the amount is unreasonably low when
considering the services rendered as guardian or temporary
guardian; and
(2) authorize compensation for the guardian or
temporary guardian in an estimated amount the court finds
reasonable that is to be paid on a quarterly basis before the
guardian or temporary guardian files an annual or final accounting
if the court finds that delaying the payment of compensation until
the guardian or temporary guardian files an accounting would create
a hardship for the guardian or temporary guardian.
(d) A finding of unreasonably low compensation may not be
established under Subsection (c) of this section solely because the
amount of compensation is less than the usual and customary charges
of the person or entity serving as guardian or temporary guardian.
A court that authorizes payment of estimated quarterly compensation
under Subsection (c) of this section may later reduce or eliminate
the guardian's or temporary guardian's compensation if, on review
of an annual or final accounting or otherwise, the court finds that
the guardian or temporary guardian:
(1) received compensation in excess of the amount
permitted under this section;
(2) has not adequately performed the duties required
of a guardian or temporary guardian under this chapter; or
(3) has been removed for cause.
(d-1) If a court reduces or eliminates a guardian's or
temporary guardian's compensation as provided by Subsection (d) of
this section, the guardian or temporary guardian and the surety on
the guardian's or temporary guardian's bond are liable to the
guardianship estate for any excess compensation received.
SECTION 2. The heading to Section 665B, Texas Probate Code,
is amended to read as follows:
Sec. 665B. COMPENSATION OF ATTORNEY REPRESENTING APPLICANT
[CERTAIN ATTORNEYS].
SECTION 3. Section 665B(a), Texas Probate Code, is amended
to read as follows:
(a) A court that creates a guardianship or creates a
management trust under Section 867 of this code for a ward under
this chapter, on request of a person who filed an application to be
appointed guardian of the proposed ward, an application [or] for
the appointment of another suitable person as guardian of the
proposed ward, or an application for the creation of the management
trust, may authorize compensation of an attorney who represents the
person who filed the application at the application hearing,
regardless of whether the person is appointed the ward's guardian
or whether a management trust is created, from:
(1) available funds of the ward's estate or management
trust, if created; or
(2) the county treasury if:
(A) the ward's estate or, if created, management
trust, is insufficient to pay for the services provided by the
attorney; and
(B) funds in the county treasury are budgeted for
that purpose.
SECTION 4. Subpart H, Part 2, Chapter XIII, Texas Probate
Code, is amended by adding Section 665D to read as follows:
Sec. 665D. COMPENSATION AND PAYMENT OF ATTORNEY'S FEES OF
ATTORNEY SERVING AS GUARDIAN. (a) Notwithstanding any other
provision of this subpart, an attorney who serves as guardian and
who also provides legal services in connection with the
guardianship is not entitled to compensation for the guardianship
services or payment of attorney's fees for the legal services from
the ward's estate or other funds available for that purpose unless
the attorney files with the court a detailed description of the
services performed that identifies which of the services provided
were guardianship services and which were legal services.
(b) An attorney described by Subsection (a) of this section
is not entitled to payment of attorney's fees for guardianship
services that are not legal services.
(c) The court shall set the compensation of an attorney
described by Subsection (a) of this section for the performance of
guardianship services in accordance with Section 665 of this code.
The court shall set attorney's fees for an attorney described by
Subsection (a) of this section for legal services provided in
accordance with Sections 665A, 665B, and 666 of this code.
SECTION 5. Section 677A, Texas Probate Code, is amended by
amending Subsection (g) and adding Subsections (i) and (j) to read
as follows:
(g) A declaration and affidavit may be in any form adequate
to clearly indicate the declarant's intention to designate a
guardian for the declarant's child. The following form may, but
need not, be used:
DECLARATION OF APPOINTMENT OF GUARDIAN FOR MY CHILDREN IN THE EVENT
OF MY DEATH OR INCAPACITY
I, __________, make this Declaration to appoint as guardian
for my child or children, listed as follows, in the event of my
death or incapacity:
____________________________________________________________
____________________________________________________________
____________________________________________________________
(add blanks as appropriate)
I designate __________ to serve as guardian of the person of
my (child or children), __________ as first alternate guardian of
the person of my (child or children), __________ as second
alternate guardian of the person of my (child or children), and
__________ as third alternate guardian of the person of my (child or
children).
I direct that the guardian of the person of my (child or
children) serve (with or without) bond.
(If applicable) I designate __________ to serve as guardian
of the estate of my (child or children), __________ as first
alternate guardian of the estate of my (child or children),
__________ as second alternate guardian of the estate of my (child
or children), and __________ as third alternate guardian of the
estate of my (child or children).
If any guardian or alternate guardian dies, does not qualify,
or resigns, the next named alternate guardian becomes guardian of
my (child or children).
Signed this __________ day of __________, 20__.
______________________________
Declarant
____________________________________________________________
Witness Witness
SELF-PROVING AFFIDAVIT
Before me, the undersigned authority, on this date personally
appeared __________, the declarant, and __________ and __________
as witnesses, and all being duly sworn, the declarant said that the
above instrument was his or her Declaration of Appointment of
Guardian for the Declarant's Children in the Event of Declarant's
Death or Incapacity and that the declarant had made and executed it
for the purposes expressed in the declaration. The witnesses
declared to me that they are each 14 years of age or older, that they
saw the declarant sign the declaration, that they signed the
declaration as witnesses, and that the declarant appeared to them
to be of sound mind.
______________________________
Declarant
____________________________________________________________
Affiant Affiant
Subscribed and sworn to before me by __________, the above
named declarant, and ___________________ (names of affiants)
affiants, on this ___ day of __________, 20__.
___________________________
Notary Public in and for the
State of Texas
My Commission expires:
___________________________
(i) As an alternative to the self-proving affidavit
authorized by Subsection (g) of this section, a declaration of
appointment of a guardian for the declarant's children in the event
of the declarant's death or incapacity may be simultaneously
executed, attested, and made self-proved by including the following
in substantially the same form and with substantially the same
contents:
I, _________________________, as declarant, after being duly
sworn, declare to the undersigned witnesses and to the undersigned
authority that this instrument is my Declaration of Appointment of
Guardian for My Children in the Event of My Death or Incapacity, and
that I have made and executed it for the purposes expressed in the
declaration. I now sign this declaration in the presence of the
attesting witnesses and the undersigned authority on this ____ day
of ________, 20__.
_____________________________
Declarant
The undersigned, _____________________ and
___________________, each being 14 years of age or older, after
being duly sworn, declare to the declarant and to the undersigned
authority that the declarant declared to us that this instrument is
the declarant's Declaration of Appointment of Guardian for the
Declarant's Children in the Event of Declarant's Death or
Incapacity and that the declarant executed it for the purposes
expressed in the declaration. The declarant then signed this
declaration and we believe the declarant to be of sound mind. We now
sign our names as attesting witnesses on this _____ day of
___________, 20___.
_____________________________
Witness
_____________________________
Witness
Subscribed and sworn to before me by the above named
declarant, and affiants, this ____ day of __________________, 20__.
___________________________________________
Notary Public in and for the State of Texas
My Commission Expires:________________
(j) A declaration that is executed as provided by Subsection
(i) of this section is considered self-proved to the same extent a
declaration executed with a self-proving affidavit under
Subsection (g) of this section is considered self-proved.
SECTION 6. Section 679, Texas Probate Code, is amended by
amending Subsection (i) and adding Subsections (k) and (l) to read
as follows:
(i) A declaration and affidavit may be in any form adequate
to clearly indicate the declarant's intention to designate a
guardian. The following form may, but need not, be used:
DECLARATION OF GUARDIAN IN THE EVENT OF LATER INCAPACITY OR NEED OF
GUARDIAN
I, __________, make this Declaration of Guardian, to operate
if the need for a guardian for me later arises.
1. I designate __________ to serve as guardian of my person,
__________ as first alternate guardian of my person, __________ as
second alternate guardian of my person, and __________ as third
alternate guardian of my person.
2. I designate __________ to serve as guardian of my estate,
__________ as first alternate guardian of my estate, __________ as
second alternate guardian of my estate, and __________ as third
alternate guardian of my estate.
3. If any guardian or alternate guardian dies, does not
qualify, or resigns, the next named alternate guardian becomes my
guardian.
4. I expressly disqualify the following persons from serving
as guardian of my person: __________, __________, and __________.
5. I expressly disqualify the following persons from serving
as guardian of my estate: __________, __________, and __________.
Signed this ___ day of __________, 20__.
______________________________
Declarant
____________________________________________________________
Witness Witness
SELF-PROVING AFFIDAVIT
Before me, the undersigned authority, on this date personally
appeared __________, the declarant, and ____________ and
____________ as witnesses, and all being duly sworn, the declarant
said that the above instrument was his or her Declaration of
Guardian and that the declarant had made and executed it for the
purposes expressed in the declaration. The witnesses declared to
me that they are each 14 years of age or older, that they saw the
declarant sign the declaration, that they signed the declaration as
witnesses, and that the declarant appeared to them to be of sound
mind.
______________________________
Declarant
____________________________________________________________
Affiant Affiant
Subscribed and sworn to before me by the above named
declarant and affiants on this ____ day of __________, 20__.
___________________________
Notary Public in and for the
State of Texas
My Commission expires:
___________________________
(k) As an alternative to the self-proving affidavit
authorized by Subsection (i) of this section, a Declaration of
Guardian in the Event of Later Incapacity or Need of Guardian may be
simultaneously executed, attested, and made self-proved by
including the following in substantially the same form and with
substantially the same contents:
I, _________________________, as declarant, after being duly
sworn, declare to the undersigned witnesses and to the undersigned
authority that this instrument is my Declaration of Guardian in the
Event of Later Incapacity or Need of Guardian, and that I have made
and executed it for the purposes expressed in the declaration. I now
sign this declaration in the presence of the attesting witnesses
and the undersigned authority on this ____ day of ________, 20__.
_____________________________
Declarant
The undersigned, _____________________ and
___________________, each being 14 years of age or older, after
being duly sworn, declare to the declarant and to the undersigned
authority that the declarant declared to us that this instrument is
the declarant's Declaration of Guardian in the Event of Later
Incapacity or Need of Guardian and that the declarant executed it
for the purposes expressed in the declaration. The declarant then
signed this declaration and we believe the declarant to be of sound
mind. We now sign our names as attesting witnesses on this _____ day
of ___________, 20___.
_____________________________
Witness
_____________________________
Witness
Subscribed and sworn to before me by the above named
declarant, and affiants, this ____ day of __________________, 20__.
___________________________________________
Notary Public in and for the State of Texas
My Commission Expires:___________________
(l) A declaration that is executed as provided by Subsection
(k) of this section is considered self-proved to the same extent a
declaration executed with a self-proving affidavit under
Subsection (i) of this section is considered self-proved.
SECTION 7. Section 767(b), Texas Probate Code, is amended
to read as follows:
(b) Notwithstanding Subsection (a)(4) of this section, a
guardian of the person of a ward has the power to personally
transport the ward or to direct the ward's transport by emergency
medical services or other means to an inpatient mental health
facility for a preliminary examination in accordance with
Subchapters A and C, Chapter 573, Health and Safety Code.
SECTION 8. Sections 867(b-3), (c), (d), and (e), Texas
Probate Code, are amended to read as follows:
(b-3) The court shall conduct a hearing to determine
incapacity under Subsection (b-1) of this section using the same
procedures and evidentiary standards as required in a hearing for
the appointment of a guardian for a proposed ward. The court shall
appoint an attorney ad litem and, if necessary, may appoint a
guardian ad litem, to represent the interests of the alleged
incapacitated person in the proceeding.
(c) Subject to Subsection (d) of this section, [If the value
of the trust's principal is $50,000 or less, the court may appoint a
person other than a financial institution to serve as trustee of the
trust only] if the court finds that it is [the appointment to be] in
the ward's or incapacitated person's best interests, the court may
appoint a person or entity that meets the requirements of
Subsection (e) of this section to serve as trustee of the trust
instead of appointing a financial institution to serve in that
capacity.
(d) If the value of the trust's principal is more than
$150,000 [$50,000], the court may appoint a person or entity other
than a financial institution in accordance with Subsection (c) of
this section to serve as trustee of the trust only if the court, in
addition to the finding required by that subsection, finds that the
applicant for the creation of the trust, after the exercise of due
diligence, has been unable to find a[:
[(1) no] financial institution in the geographic area
[is] willing to serve as trustee[; and
[(2) the appointment is in the ward's or incapacitated
person's best interests].
(e) The following are eligible for appointment as trustee
under Subsection (c) or (d) of this section:
(1) an individual, including an individual who is
certified as a private professional guardian;
(2) a nonprofit corporation qualified to serve as a
guardian; and
(3) a guardianship program [Before making a finding
that there is no financial institution willing to serve as trustee
under Subsection (d)(1) of this section, the court must check any
list of corporate fiduciaries located in this state that is
maintained at the office of the presiding judge of the statutory
probate courts or at the principal office of the Texas Bankers
Association].
SECTION 9. Section 868(a), Texas Probate Code, is amended
to read as follows:
(a) Except as provided by Subsection (d) of this section, a
trust created under Section 867 of this code must provide that:
(1) the ward or incapacitated person is the sole
beneficiary of the trust;
(2) the trustee may disburse an amount of the trust's
principal or income as the trustee determines is necessary to
expend for the health, education, support, or maintenance of the
ward or incapacitated person;
(3) the income of the trust that the trustee does not
disburse under Subdivision (2) of this subsection must be added to
the principal of the trust;
(4) if the trustee is a corporate fiduciary, the
trustee serves without giving a bond; and
(5) the trustee, [on annual application to the court
and] subject to the court's approval, is entitled to receive
reasonable compensation for services that the trustee provided to
the ward or incapacitated person as the ward's or incapacitated
person's trustee that is:
(A) to be paid from the trust's income,
principal, or both; and
(B) determined, paid, reduced, and eliminated in
the same manner as compensation of a guardian of an estate under
Section 665 of this code.
SECTION 10. Subpart N, Part 4, Chapter XIII, Texas Probate
Code, is amended by adding Section 868C to read as follows:
Sec. 868C. TRANSFER OF MANAGEMENT TRUST PROPERTY TO POOLED
TRUST. (a) If the court determines that it is in the ward's or
incapacitated person's best interests, the court may order the
transfer of all property in a management trust created under
Section 867 of this code to a subaccount of a pooled trust
established in accordance with Subpart I, Part 5, of this chapter.
The transfer of property from the management trust to the
subaccount of the pooled trust shall be treated as a continuation of
the management trust and may not be treated as the establishment of
a new trust for purposes of 42 U.S.C. Section 1396p(d)(4)(A) or (C)
or otherwise for purposes of the ward's or incapacitated person's
eligibility for medical assistance under Chapter 32, Human
Resources Code.
(b) The court may not allow termination of the management
trust created under Section 867 of this code from which property is
transferred under this section until all of the property in the
management trust has been transferred to the subaccount of the
pooled trust.
SECTION 11. Section 870(b), Texas Probate Code, is amended
to read as follows:
(b) If the ward or incapacitated person is not a minor, the
trust terminates on the date the court determines that continuing
the trust is no longer in the ward's or incapacitated person's best
interests, subject to Section 868C(b) of this code, or on the death
of the ward or incapacitated person.
SECTION 12. Section 875(k), Texas Probate Code, is amended
to read as follows:
(k) If an application for a temporary guardianship, for the
conversion of a temporary guardianship to a permanent guardianship,
or for a permanent guardianship is challenged or contested, the
court, on the court's own motion or on the motion of any interested
party, may appoint a [new] temporary guardian or grant a temporary
restraining order under Rule 680, Texas Rules of Civil Procedure,
or both, without issuing additional citation if the court finds
that the appointment or the issuance of the order is necessary to
protect the proposed ward or the proposed ward's estate.
SECTION 13. Part 5, Chapter XIII, Texas Probate Code, is
amended by adding Subpart I to read as follows:
SUBPART I. ESTABLISHMENT OF POOLED TRUST SUBACCOUNTS; TRANSFERS
Sec. 910. DEFINITIONS. In this subpart:
(1) "Beneficiary" means a minor, a disabled person, or
any other incapacitated person for whom a subaccount is
established.
(2) "Medical assistance" means benefits and services
under the medical assistance program administered under Chapter 32,
Human Resources Code.
(3) "Pooled trust" means a trust that meets the
requirements of 42 U.S.C. Section 1396p(d)(4)(C) for purposes of
exempting the trust from the applicability of 42 U.S.C. Section
1396p(d) in determining the eligibility of a person who is disabled
for medical assistance.
(4) "Subaccount" means an account in a pooled trust
established solely for the benefit of a beneficiary.
Sec. 911. APPLICATION. A person interested in the welfare
of a minor, a disabled person, or any other incapacitated person may
apply to the court for the establishment of a subaccount for the
benefit of the minor, disabled person, or other incapacitated
person as the beneficiary.
Sec. 912. APPOINTMENT OF ATTORNEY AD LITEM. The court shall
appoint an attorney ad litem for a person who is a minor or has a
mental disability and who is the subject of an application under
Section 911 of this code. The attorney ad litem is entitled to a
reasonable fee and reimbursement of expenses to be paid from the
person's property.
Sec. 913. TRANSFER. If the court finds that it is in the
best interests of a person who is the subject of an application
under Section 911 of this code, the court may order:
(1) the establishment of a subaccount of which the
person is the beneficiary; and
(2) the transfer to the subaccount of any of the
person's property on hand or accruing to the person.
Sec. 914. TERMS OF SUBACCOUNT. Unless the court orders
otherwise, the terms governing the subaccount must provide that:
(1) the subaccount terminates on the earliest of the
date of:
(A) the beneficiary's 18th birthday, if the
beneficiary is not disabled on that date and was a minor at the time
the subaccount was established;
(B) the beneficiary's death; or
(C) an order of the court terminating the
subaccount; and
(2) on termination, any property remaining in the
beneficiary's subaccount after making any required payments to
satisfy the amounts of medical assistance reimbursement claims for
medical assistance provided to the beneficiary under this state's
medical assistance program and other states' medical assistance
programs shall be distributed to:
(A) the beneficiary, if on the date of
termination the beneficiary is living and is not incapacitated;
(B) the beneficiary's guardian, if on the date of
termination the beneficiary is living and is incapacitated; or
(C) the personal representative of the
beneficiary's estate, if the beneficiary is deceased on the date of
termination.
Sec. 915. JURISDICTION EXCLUSIVE. Notwithstanding any
other law, the court that orders the establishment of a subaccount
for a beneficiary has exclusive jurisdiction of a subsequent
proceeding or action that relates to both the beneficiary and the
subaccount, and the proceeding or action may only be brought in that
court.
Sec. 916. FEES AND ACCOUNTING. (a) The manager or trustee
of a pooled trust may:
(1) assess fees against a subaccount of that pooled
trust established under this subpart in accordance with the
manager's or trustee's standard fee structure; and
(2) pay those fees from the subaccount.
(b) If required by the court, the manager or trustee of the
pooled trust shall file a copy of the annual report of account with
the court clerk.
SECTION 14. (a) Except as otherwise provided by this
section, the changes in law made by this Act apply to:
(1) a guardianship created before, on, or after the
effective date of this Act; and
(2) an application for a guardianship pending on, or
filed on or after, the effective date of this Act.
(b) Sections 665, 665B, and 868, Texas Probate Code, as
amended by this Act, and Section 665D, Texas Probate Code, as added
by this Act, apply to the payment, reduction, or elimination of
compensation for services performed on or after the effective date
of this Act. Payment, reduction, or elimination of compensation for
services performed before the effective date of this Act is
governed by the law in effect on the date the services were
performed, and the former law is continued in effect for that
purpose.
(c) Sections 867 and 870, Texas Probate Code, as amended by
this Act, and Section 868C, Texas Probate Code, as added by this
Act, apply to an application for the creation, modification, or
termination of a management trust under Subpart N, Part 4, Chapter
XIII, Texas Probate Code, that is filed on or after the effective
date of this Act. An application for the creation, modification, or
termination of a management trust filed before the effective date
of this Act is governed by the law in effect on the date the
application was filed, and the former law is continued in effect for
that purpose.
(d) Subpart I, Part 5, Chapter XIII, Texas Probate Code, as
added by this Act, applies to an application for the establishment
of a subaccount of a pooled trust that is filed on or after the
effective date of this Act.
SECTION 15. This Act takes effect September 1, 2009.