By: Uresti S.B. No. 2344
A BILL TO BE ENTITLED
AN ACT
relating to examination requirements in certain guardianship
matters concerning persons with mental retardation.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 687, Texas Probate Code, is amended to
read as follows:
Sec. 687. EXAMINATIONS AND REPORTS. (a) Except as
provided by Subsection (c) of this section, the [The] court may not
grant an application to create a guardianship for an incapacitated
person, other than a minor[, person whose alleged incapacity is
mental retardation,] or person for whom it is necessary to have a
guardian appointed only to receive funds from a governmental
source, unless the applicant presents to the court a written letter
or certificate from a physician licensed in this state that is dated
not earlier than the 120th day before the date of the filing of the
application and based on an examination the physician performed not
earlier than the 120th day before the date of the filing of the
application. The letter or certificate must:
(1) describe the nature, [and] degree, and severity of
incapacity, including functional deficits, if any, regarding the
proposed ward's ability to:
(A) handle business and managerial matters;
(B) manage financial matters;
(C) operate a motor vehicle;
(D) make personal decisions regarding residence,
voting, and marriage; and
(E) consent to medical, dental, psychological,
or psychiatric treatment [the medical history if reasonably
available];
(2) provide an evaluation of the proposed ward's
physical condition and mental function and summarize the proposed
ward's medical history if reasonably available [a medical prognosis
specifying the estimated severity of the incapacity];
(3) state how or in what manner the proposed ward's
ability to make or communicate responsible decisions concerning
himself or herself is affected by the person's physical or mental
health, including the proposed ward's ability to:
(A) understand or communicate;
(B) recognize familiar objects and individuals;
(C) perform simple calculations;
(D) reason logically; and
(E) administer to daily life activities;
(4) state whether any current medication affects the
demeanor of the proposed ward or the proposed ward's ability to
participate fully in a court proceeding;
(5) describe the precise physical and mental
conditions underlying a diagnosis of a mental disability, and state
whether the proposed ward would benefit from supports and services
that would allow the individual to live in the least restrictive
setting [senility, if applicable];
(6) in providing a description under Subdivision (1)
of this subsection regarding the proposed ward's ability to operate
a motor vehicle and make personal decisions regarding voting, state
whether in the physician's opinion the proposed ward:
(A) has the mental capacity to vote in a public
election; and
(B) has the ability to safely operate a motor
vehicle; and
(7) include any other information required by the
court.
(b) If [Except as provided by Subsection (c) of this
section, if] the court determines it is necessary, the court may
appoint the necessary physicians to examine the proposed ward. The
court must make its determination with respect to the necessity for
a physician's examination of the proposed ward at a hearing held for
that purpose. Not later than the fourth day before the date of the
hearing, the applicant shall give to the proposed ward and the
proposed ward's attorney ad litem written notice specifying the
purpose and the date and time of the hearing. A physician who
examines the proposed ward, other than a physician or psychologist
who examines the proposed ward under Subsection (c)(2) [(c)] of
this section, shall make available to an attorney ad litem
appointed to represent the proposed ward, for inspection, a written
letter or certificate from the physician that complies with the
requirements of Subsection (a) of this section.
(c) If the basis of the proposed ward's alleged incapacity
is mental retardation, the court may not grant an application to
create a guardianship for the proposed ward unless the applicant
presents to the court:
(1) a written letter or certificate that:
(A) complies with Subsection (a) of this section;
and
(B) states that the physician has made a
determination of mental retardation in accordance with Section
593.005, Health and Safety Code; or
(2) both:
(A) [shall be examined by a physician or
psychologist licensed in this state or certified by the Texas
Department of Mental Health and Mental Retardation to perform the
examination, unless there is] written documentation showing [filed
with the court that shows] that, not earlier than 24 months before
the date of the hearing, the proposed ward has been examined by a
physician or psychologist licensed in this state or certified by
the Department of Aging and Disability Services to perform the
examination, in accordance with rules of the executive commissioner
of the Health and Human Services Commission governing examinations
of that kind; and
(B) the physician's or psychologist's [according
to the rules adopted by the Texas Department of Mental Health and
Mental Retardation not earlier than 24 months before the date of a
hearing to appoint a guardian for the proposed ward. The physician
or psychologist shall conduct the examination according to the
rules adopted by the Texas Department of Mental Health and Mental
Retardation and shall submit] written findings and
recommendations, including a statement as to whether the physician
or psychologist has made a determination of mental retardation in
accordance with Section 593.005, Health and Safety Code [to the
court].
SECTION 2. The changes in law made by this Act to Section
687, Texas Probate Code, apply only to an application for the
creation of a guardianship filed on or after the effective date of
this Act. An application for the creation of a guardianship 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.
SECTION 3. This Act takes effect September 1, 2009.