Texas 2009 - 81st Regular

Texas Senate Bill SB2344 Compare Versions

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1	1	81R372 MTB-F
2	2	By: Uresti S.B. No. 2344
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) if applicable, describe the precise physical and
52	52	mental conditions underlying a diagnosis of dementia, and state
53	53	whether the proposed ward:
54	54	(A) would benefit from placement in a facility
55	55	specializing in the care and treatment of individuals with
56	56	dementia;
57	57	(B) would benefit from medications appropriate
58	58	to the care and treatment of dementia; and
59	59	(C) has sufficient capacity to give informed
60	60	consent to the administration of medications for the treatment of
61	61	dementia [senility], if applicable;
62	62	(6) in providing a description under Subdivision (1)
63	63	of this subsection regarding the proposed ward's ability to operate
64	64	a motor vehicle and make personal decisions regarding voting, state
65	65	whether in the physician's opinion the proposed ward:
66	66	(A) has the mental capacity to vote in a public
67	67	election; and
68	68	(B) has the ability to safely operate a motor
69	69	vehicle; [and]
70	70	(7) state whether the proposed ward has a
71	71	developmental disability and, if so, describe the nature of the
72	72	disability; and
73	73	(8) include any other information required by the
74	74	court.
75	75	(b) If [Except as provided by Subsection (c) of this
76	76	section, if] the court determines it is necessary, the court may
77	77	appoint the necessary physicians to examine the proposed ward. The
78	78	court must make its determination with respect to the necessity for
79	79	a physician's examination of the proposed ward at a hearing held for
80	80	that purpose. Not later than the fourth day before the date of the
81	81	hearing, the applicant shall give to the proposed ward and the
82	82	proposed ward's attorney ad litem written notice specifying the
83	83	purpose and the date and time of the hearing. A physician who
84	84	examines the proposed ward, other than a physician or psychologist
85	85	who examines the proposed ward under Subsection (c)(2) [(c)] of
86	86	this section, shall make available to an attorney ad litem
87	87	appointed to represent the proposed ward, for inspection, a written
88	88	letter or certificate from the physician that complies with the
89	89	requirements of Subsection (a) of this section.
90	90	(c) If the basis of the proposed ward's alleged incapacity
91	91	is mental retardation, the court may not grant an application to
92	92	create a guardianship for the proposed ward unless the applicant
93	93	presents to the court:
94	94	(1) a written letter or certificate that complies with
95	95	Subsection (a) of this section; or
96	96	(2) both:
97	97	(A) [shall be examined by a physician or
98	98	psychologist licensed in this state or certified by the Texas
99	99	Department of Mental Health and Mental Retardation to perform the
100	100	examination, unless there is] written documentation showing [filed
101	101	with the court that shows] that, not earlier than 24 months before
102	102	the date of the hearing, the proposed ward has been examined by a
103	103	physician or psychologist licensed in this state or certified by
104	104	the Department of Aging and Disability Services to perform the
105	105	examination, in accordance with rules of the executive commissioner
106	106	of the Health and Human Services Commission governing examinations
107	107	of that kind; and
108	108	(B) the physician's or psychologist's [according
109	109	to the rules adopted by the Texas Department of Mental Health and
110	110	Mental Retardation not earlier than 24 months before the date of a
111	111	hearing to appoint a guardian for the proposed ward. The physician
112	112	or psychologist shall conduct the examination according to the
113	113	rules adopted by the Texas Department of Mental Health and Mental
114	114	Retardation and shall submit] written findings and recommendations
115	115	[to the court].
116	116	SECTION 2. The changes in law made by this Act to Section
117	117	687, Texas Probate Code, apply only to an application for the
118	118	creation of a guardianship filed on or after the effective date of
119	119	this Act. An application for the creation of a guardianship filed
120	120	before the effective date of this Act is governed by the law in
121	121	effect on the date the application was filed, and the former law is
122	122	continued in effect for that purpose.
123	123	SECTION 3. This Act takes effect September 1, 2009.