Texas 2009 - 81st Regular

Texas House Bill HB889 Compare Versions

The same version is selected twice. Please select two different versions to compare.

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	81R27045 KLA-D
2	2	By: Naishtat H.B. No. 889
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to examination requirements in certain guardianship
8	8	matters concerning persons with mental retardation.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 687, Texas Probate Code, is amended to
11	11	read as follows:
12	12	Sec. 687. EXAMINATIONS AND REPORTS. (a) Except as provided
13	13	by Subsection (c) of this section, the [The] court may not grant an
14	14	application to create a guardianship for an incapacitated person,
15	15	other than a minor[, person whose alleged incapacity is mental
16	16	retardation,] or person for whom it is necessary to have a guardian
17	17	appointed only to receive funds from a governmental source, unless
18	18	the applicant presents to the court a written letter or certificate
19	19	from a physician licensed in this state that is dated not earlier
20	20	than the 120th day before the date of the filing of the application
21	21	and based on an examination the physician performed not earlier
22	22	than the 120th day before the date of the filing of the application.
23	23	The letter or certificate must:
24	24	(1) describe the nature, [and] degree, and severity of
25	25	incapacity, including functional deficits, if any, regarding the
26	26	proposed ward's ability to:
27	27	(A) handle business and managerial matters;
28	28	(B) manage financial matters;
29	29	(C) operate a motor vehicle;
30	30	(D) make personal decisions regarding residence,
31	31	voting, and marriage; and
32	32	(E) consent to medical, dental, psychological,
33	33	or psychiatric treatment [the medical history if reasonably
34	34	available];
35	35	(2) provide an evaluation of the proposed ward's
36	36	physical condition and mental function and summarize the proposed
37	37	ward's medical history if reasonably available [a medical prognosis
38	38	specifying the estimated severity of the incapacity];
39	39	(3) state how or in what manner the proposed ward's
40	40	ability to make or communicate responsible decisions concerning
41	41	himself or herself is affected by the person's physical or mental
42	42	health, including the proposed ward's ability to:
43	43	(A) understand or communicate;
44	44	(B) recognize familiar objects and individuals;
45	45	(C) perform simple calculations;
46	46	(D) reason logically; and
47	47	(E) administer to daily life activities;
48	48	(4) state whether any current medication affects the
49	49	demeanor of the proposed ward or the proposed ward's ability to
50	50	participate fully in a court proceeding;
51	51	(5) describe the precise physical and mental
52	52	conditions underlying a diagnosis of a mental disability, and state
53	53	whether the proposed ward would benefit from supports and services
54	54	that would allow the individual to live in the least restrictive
55	55	setting [senility, if applicable];
56	56	(6) in providing a description under Subdivision (1)
57	57	of this subsection regarding the proposed ward's ability to operate
58	58	a motor vehicle and make personal decisions regarding voting, state
59	59	whether in the physician's opinion the proposed ward:
60	60	(A) has the mental capacity to vote in a public
61	61	election; and
62	62	(B) has the ability to safely operate a motor
63	63	vehicle; and
64	64	(7) include any other information required by the
65	65	court.
66	66	(b) If [Except as provided by Subsection (c) of this
67	67	section, if] the court determines it is necessary, the court may
68	68	appoint the necessary physicians to examine the proposed ward. The
69	69	court must make its determination with respect to the necessity for
70	70	a physician's examination of the proposed ward at a hearing held for
71	71	that purpose. Not later than the fourth day before the date of the
72	72	hearing, the applicant shall give to the proposed ward and the
73	73	proposed ward's attorney ad litem written notice specifying the
74	74	purpose and the date and time of the hearing. A physician who
75	75	examines the proposed ward, other than a physician or psychologist
76	76	who examines the proposed ward under Subsection (c)(2) [(c)] of
77	77	this section, shall make available to an attorney ad litem
78	78	appointed to represent the proposed ward, for inspection, a written
79	79	letter or certificate from the physician that complies with the
80	80	requirements of Subsection (a) of this section.
81	81	(c) If the basis of the proposed ward's alleged incapacity
82	82	is mental retardation, the court may not grant an application to
83	83	create a guardianship for the proposed ward unless the applicant
84	84	presents to the court:
85	85	(1) a written letter or certificate that:
86	86	(A) complies with Subsection (a) of this section;
87	87	and
88	88	(B) states that the physician has made a
89	89	determination of mental retardation in accordance with Section
90	90	593.005, Health and Safety Code; or
91	91	(2) both:
92	92	(A) [shall be examined by a physician or
93	93	psychologist licensed in this state or certified by the Texas
94	94	Department of Mental Health and Mental Retardation to perform the
95	95	examination, unless there is] written documentation showing [filed
96	96	with the court that shows] that, not earlier than 24 months before
97	97	the date of the hearing, the proposed ward has been examined by a
98	98	physician or psychologist licensed in this state or certified by
99	99	the Department of Aging and Disability Services to perform the
100	100	examination, in accordance with rules of the executive commissioner
101	101	of the Health and Human Services Commission governing examinations
102	102	of that kind; and
103	103	(B) the physician's or psychologist's [according
104	104	to the rules adopted by the Texas Department of Mental Health and
105	105	Mental Retardation not earlier than 24 months before the date of a
106	106	hearing to appoint a guardian for the proposed ward. The physician
107	107	or psychologist shall conduct the examination according to the
108	108	rules adopted by the Texas Department of Mental Health and Mental
109	109	Retardation and shall submit] written findings and
110	110	recommendations, including a statement as to whether the physician
111	111	or psychologist has made a determination of mental retardation in
112	112	accordance with Section 593.005, Health and Safety Code [to the
113	113	court].
114	114	SECTION 2. The changes in law made by this Act to Section
115	115	687, Texas Probate Code, apply only to an application for the
116	116	creation of a guardianship filed on or after the effective date of
117	117	this Act. An application for the creation of a guardianship filed
118	118	before the effective date of this Act is governed by the law in
119	119	effect on the date the application was filed, and the former law is
120	120	continued in effect for that purpose.
121	121	SECTION 3. This Act takes effect September 1, 2009.