Texas 2011 - 82nd Regular

Texas House Bill HB1837 Compare Versions

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1	1	82R21792 KLA-F
2	2	By: Hartnett H.B. No. 1837
3	3	Substitute the following for H.B. No. 1837:
4	4	By: Jackson C.S.H.B. No. 1837
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to guardianships and alternatives to guardianship for
10	10	persons who have physical disabilities or who are incapacitated.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 601(25), Texas Probate Code, is amended
13	13	to read as follows:
14	14	(25) The term ["Proceedings in guardianship,"
15	15	"guardianship matter," "guardianship matters,"] "guardianship
16	16	proceeding" means [proceeding," and "proceedings for guardianship"
17	17	are synonymous and include] a matter or proceeding related
18	18	[relating] to a guardianship or any other matter covered
19	19	[addressed] by this chapter, including:
20	20	(A) the appointment of a guardian of a minor or
21	21	other incapacitated person, including an incapacitated adult for
22	22	whom another court obtained continuing, exclusive jurisdiction in a
23	23	suit affecting the parent-child relationship when the person was a
24	24	child;
25	25	(B) an application, petition, or motion
26	26	regarding guardianship or an alternative to guardianship under this
27	27	chapter;
28	28	(C) a mental health action; and
29	29	(D) an application, petition, or motion
30	30	regarding a trust created under Section 867 of this code.
31	31	SECTION 2. Section 605, Texas Probate Code, is amended to
32	32	read as follows:
33	33	Sec. 605. GENERAL PROBATE [COUNTY] COURT JURISDICTION IN
34	34	GUARDIANSHIP PROCEEDINGS; APPEALS. (a) All guardianship
35	35	proceedings must be filed and heard in a court exercising original
36	36	probate jurisdiction. The court exercising original probate
37	37	jurisdiction also has jurisdiction of all matters related to the
38	38	guardianship proceeding as specified in Section 606A of this code
39	39	for that type of court.
40	40	(b) A probate court may exercise pendent and ancillary
41	41	jurisdiction as necessary to promote judicial efficiency and
42	42	economy.
43	43	(c) A final order issued by a probate court is appealable to
44	44	the court of appeals. [The county court has the general
45	45	jurisdiction of a probate court. The county court shall appoint
46	46	guardians of minors and other incapacitated persons, grant letters
47	47	of guardianship, settle accounts of guardians, and transact all
48	48	business appertaining to estates subject to guardianship,
49	49	including the settlement, partition, and distribution of the
50	50	estates. The county court may also enter other orders as may be
51	51	authorized under this chapter.]
52	52	SECTION 3. Subpart A, Part 2, Chapter XIII, Texas Probate
53	53	Code, is amended by adding Sections 606A, 607A, 607B, 607C, 607D,
54	54	and 607E to read as follows:
55	55	Sec. 606A. MATTERS RELATED TO GUARDIANSHIP PROCEEDING.
56	56	(a) For purposes of this code, in a county in which there is no
57	57	statutory probate court, a matter related to a guardianship
58	58	proceeding includes:
59	59	(1) the granting of letters of guardianship;
60	60	(2) the settling of an account of a guardian and all
61	61	other matters relating to the settlement, partition, or
62	62	distribution of a ward's estate;
63	63	(3) a claim brought by or against a guardianship
64	64	estate;
65	65	(4) an action for trial of title to real property that
66	66	is guardianship estate property, including the enforcement of a
67	67	lien against the property;
68	68	(5) an action for trial of the right of property that
69	69	is guardianship estate property;
70	70	(6) after a guardianship of the estate of a ward is
71	71	required to be settled as provided by Section 745 of this code:
72	72	(A) an action brought by or on behalf of the
73	73	former ward against a former guardian of the ward for alleged
74	74	misconduct arising from the performance of the person's duties as
75	75	guardian;
76	76	(B) an action calling on the surety of a guardian
77	77	or former guardian to perform in place of the guardian or former
78	78	guardian, which may include the award of a judgment against the
79	79	guardian or former guardian in favor of the surety;
80	80	(C) an action against a former guardian of the
81	81	former ward that is brought by a surety that is called on to perform
82	82	in place of the former guardian;
83	83	(D) a claim for the payment of compensation,
84	84	expenses, and court costs, and any other matter authorized under
85	85	Subpart H, Part 2, of this chapter; and
86	86	(E) a matter related to an authorization made or
87	87	duty performed by a guardian under Subpart C, Part 4, of this
88	88	chapter; and
89	89	(7) the appointment of a trustee for a trust created
90	90	under Section 867 of this code, the settling of an account of the
91	91	trustee, and all other matters relating to the trust.
92	92	(b) For purposes of this code, in a county in which there is
93	93	a statutory probate court, a matter related to a guardianship
94	94	proceeding includes:
95	95	(1) all matters and actions described in Subsection
96	96	(a) of this section;
97	97	(2) a suit, action, or application filed against or on
98	98	behalf of a guardianship or a trustee of a trust created under
99	99	Section 867 of this code; and
100	100	(3) a cause of action in which a guardian in a
101	101	guardianship pending in the statutory probate court is a party.
102	102	Sec. 607A. ORIGINAL JURISDICTION FOR GUARDIANSHIP
103	103	PROCEEDINGS. (a) In a county in which there is no statutory
104	104	probate court or county court at law exercising original probate
105	105	jurisdiction, the county court has original jurisdiction of
106	106	guardianship proceedings.
107	107	(b) In a county in which there is no statutory probate
108	108	court, but in which there is a county court at law exercising
109	109	original probate jurisdiction, the county court at law exercising
110	110	original probate jurisdiction and the county court have concurrent
111	111	original jurisdiction of guardianship proceedings, unless
112	112	otherwise provided by law. The judge of a county court may hear
113	113	guardianship proceedings while sitting for the judge of any other
114	114	county court.
115	115	(c) In a county in which there is a statutory probate court,
116	116	the statutory probate court has original jurisdiction of
117	117	guardianship proceedings.
118	118	Sec. 607B. JURISDICTION OF CONTESTED GUARDIANSHIP
119	119	PROCEEDING IN COUNTY WITH NO STATUTORY PROBATE COURT OR COUNTY
120	120	COURT AT LAW. (a) In a county in which there is no statutory
121	121	probate court or county court at law exercising original probate
122	122	jurisdiction, when a matter in a guardianship proceeding is
123	123	contested, the judge of the county court may, on the judge's own
124	124	motion, or shall, on the motion of any party to the proceeding,
125	125	according to the motion:
126	126	(1) request the assignment of a statutory probate
127	127	court judge to hear the contested matter, as provided by Section
128	128	25.0022, Government Code; or
129	129	(2) transfer the contested matter to the district
130	130	court, which may then hear the contested matter as if originally
131	131	filed in the district court.
132	132	(b) If a party to a guardianship proceeding files a motion
133	133	for the assignment of a statutory probate court judge to hear a
134	134	contested matter in the proceeding before the judge of the county
135	135	court transfers the contested matter to a district court under this
136	136	section, the county judge shall grant the motion for the assignment
137	137	of a statutory probate court judge and may not transfer the matter
138	138	to the district court unless the party withdraws the motion.
139	139	(c) If a judge of a county court requests the assignment of a
140	140	statutory probate court judge to hear a contested matter in a
141	141	guardianship proceeding on the judge's own motion or on the motion
142	142	of a party to the proceeding as provided by this section, the judge
143	143	may request that the statutory probate court judge be assigned to
144	144	the entire proceeding on the judge's own motion or on the motion of
145	145	a party.
146	146	(d) A party to a guardianship proceeding may file a motion
147	147	for the assignment of a statutory probate court judge under this
148	148	section before a matter in the proceeding becomes contested, and
149	149	the motion is given effect as a motion for assignment of a statutory
150	150	probate court judge under Subsection (a) of this section if the
151	151	matter later becomes contested.
152	152	(e) Notwithstanding any other law, a transfer of a contested
153	153	matter in a guardianship proceeding to a district court under any
154	154	authority other than the authority provided by this section:
155	155	(1) is disregarded for purposes of this section; and
156	156	(2) does not defeat the right of a party to the
157	157	proceeding to have the matter assigned to a statutory probate court
158	158	judge in accordance with this section.
159	159	(f) A statutory probate court judge assigned to a contested
160	160	matter in a guardianship proceeding or to the entire proceeding
161	161	under this section has the jurisdiction and authority granted to a
162	162	statutory probate court by this code. A statutory probate court
163	163	judge assigned to hear only the contested matter in a guardianship
164	164	proceeding shall, on resolution of the matter, including any appeal
165	165	of the matter, return the matter to the county court for further
166	166	proceedings not inconsistent with the orders of the statutory
167	167	probate court or court of appeals, as applicable. A statutory
168	168	probate court judge assigned to the entire guardianship proceeding
169	169	as provided by Subsection (c) of this section shall, on resolution
170	170	of the contested matter in the proceeding, including any appeal of
171	171	the matter, return the entire proceeding to the county court for
172	172	further proceedings not inconsistent with the orders of the
173	173	statutory probate court or court of appeals, as applicable.
174	174	(g) A district court to which a contested matter in a
175	175	guardianship proceeding is transferred under this section has the
176	176	jurisdiction and authority granted to a statutory probate court by
177	177	this code. On resolution of a contested matter transferred to the
178	178	district court under this section, including any appeal of the
179	179	matter, the district court shall return the matter to the county
180	180	court for further proceedings not inconsistent with the orders of
181	181	the district court or court of appeals, as applicable.
182	182	(h) If only the contested matter in a guardianship
183	183	proceeding is assigned to a statutory probate court judge under
184	184	this section, or if the contested matter in a guardianship
185	185	proceeding is transferred to a district court under this section,
186	186	the county court shall continue to exercise jurisdiction over the
187	187	management of the guardianship, other than a contested matter,
188	188	until final disposition of the contested matter is made in
189	189	accordance with this section. Any matter related to a guardianship
190	190	proceeding in which a contested matter is transferred to a district
191	191	court may be brought in the district court. The district court in
192	192	which a matter related to the proceeding is filed may, on the
193	193	court's own motion or on the motion of any party, find that the
194	194	matter is not a contested matter and transfer the matter to the
195	195	county court with jurisdiction of the management of the
196	196	guardianship.
197	197	(i) If a contested matter in a guardianship proceeding is
198	198	transferred to a district court under this section, the district
199	199	court has jurisdiction of any contested matter in the proceeding
200	200	that is subsequently filed, and the county court shall transfer
201	201	those contested matters to the district court. If a statutory
202	202	probate court judge is assigned under this section to hear a
203	203	contested matter in a guardianship proceeding, the statutory
204	204	probate court judge shall be assigned to hear any contested matter
205	205	in the proceeding that is subsequently filed.
206	206	(j) The clerk of a district court to which a contested
207	207	matter in a guardianship proceeding is transferred under this
208	208	section may perform in relation to the transferred matter any
209	209	function a county clerk may perform with respect to that type of
210	210	matter.
211	211	Sec. 607C. JURISDICTION OF CONTESTED GUARDIANSHIP
212	212	PROCEEDING IN COUNTY WITH NO STATUTORY PROBATE COURT. (a) In a
213	213	county in which there is no statutory probate court, but in which
214	214	there is a county court at law exercising original probate
215	215	jurisdiction, when a matter in a guardianship proceeding is
216	216	contested, the judge of the county court may, on the judge's own
217	217	motion, or shall, on the motion of any party to the proceeding,
218	218	transfer the contested matter to the county court at law. In
219	219	addition, the judge of the county court, on the judge's own motion
220	220	or on the motion of a party to the proceeding, may transfer the
221	221	entire proceeding to the county court at law.
222	222	(b) A county court at law to which a proceeding is
223	223	transferred under this section may hear the proceeding as if
224	224	originally filed in that court. If only a contested matter in the
225	225	proceeding is transferred, on the resolution of the matter, the
226	226	matter shall be returned to the county court for further
227	227	proceedings not inconsistent with the orders of the county court at
228	228	law.
229	229	Sec. 607D. EXCLUSIVE JURISDICTION OF GUARDIANSHIP
230	230	PROCEEDING IN COUNTY WITH STATUTORY PROBATE COURT. (a) In a
231	231	county in which there is a statutory probate court, the statutory
232	232	probate court has exclusive jurisdiction of all guardianship
233	233	proceedings, regardless of whether contested or uncontested.
234	234	(b) A cause of action related to a guardianship proceeding
235	235	of which the statutory probate court has exclusive jurisdiction as
236	236	provided by Subsection (a) of this section must be brought in the
237	237	statutory probate court unless the jurisdiction of the statutory
238	238	probate court is concurrent with the jurisdiction of a district
239	239	court as provided by Section 607E of this code or with the
240	240	jurisdiction of any other court.
241	241	Sec. 607E. CONCURRENT JURISDICTION WITH DISTRICT COURT. A
242	242	statutory probate court has concurrent jurisdiction with the
243	243	district court in:
244	244	(1) a personal injury, survival, or wrongful death
245	245	action by or against a person in the person's capacity as a
246	246	guardian; and
247	247	(2) an action involving a guardian in which each other
248	248	party aligned with the guardian is not an interested person in the
249	249	guardianship.
250	250	SECTION 4. Section 608, Texas Probate Code, is amended to
251	251	read as follows:
252	252	Sec. 608. TRANSFER OF [GUARDIANSHIP] PROCEEDING BY
253	253	STATUTORY PROBATE COURT. (a) A judge of a statutory probate court,
254	254	on the motion of a party to the action or of a person interested in
255	255	the [a] guardianship, may:
256	256	(1) transfer to the judge's court from a district,
257	257	county, or statutory court a cause of action that is a matter
258	258	related [appertaining to or incident] to a guardianship proceeding
259	259	[estate that is] pending in the statutory probate court, including
260	260	[or] a cause of action that is a matter related [relating] to a
261	261	guardianship proceeding pending in the statutory probate court and
262	262	in which the [a] guardian, ward, or proposed ward in the [a
263	263	guardianship] pending guardianship proceeding [in the statutory
264	264	probate court] is a party; and
265	265	(2) [may] consolidate the transferred cause of action
266	266	with the guardianship proceeding to which it relates and any other
267	267	proceedings in the statutory probate court that are related
268	268	[relating] to the guardianship proceeding [estate].
269	269	(b) Notwithstanding any other provision of this chapter,
270	270	the proper venue for an action by or against a guardian, ward, or
271	271	proposed ward for personal injury, death, or property damages is
272	272	determined under Section 15.007, Civil Practice and Remedies Code.
273	273	SECTION 5. The heading to Section 609, Texas Probate Code,
274	274	is amended to read as follows:
275	275	Sec. 609. TRANSFER OF CONTESTED GUARDIANSHIP OF THE PERSON
276	276	OF A MINOR.
277	277	SECTION 6. Section 609(a), Texas Probate Code, is amended
278	278	to read as follows:
279	279	(a) If an interested person contests an application for the
280	280	appointment of a guardian of the person of a minor or an interested
281	281	person seeks the removal of a guardian of the person of a minor, the
282	282	judge, on the judge's own motion, may transfer all matters related
283	283	[relating] to the guardianship proceeding [of the person of the
284	284	minor] to a court of competent jurisdiction in which a suit
285	285	affecting the parent-child relationship under the Family Code is
286	286	pending.
287	287	SECTION 7. Section 611(a), Texas Probate Code, is amended
288	288	to read as follows:
289	289	(a) If two or more courts have concurrent venue of a
290	290	guardianship proceeding [matter], the court in which an application
291	291	for a guardianship proceeding is initially filed has and retains
292	292	jurisdiction of the proceeding [guardianship matter]. A proceeding
293	293	is considered commenced by the filing of an application alleging
294	294	facts sufficient to confer venue, and the proceeding initially
295	295	legally commenced extends to all of the property of the
296	296	guardianship estate.
297	297	SECTION 8. Section 621(a), Texas Probate Code, is amended
298	298	to read as follows:
299	299	(a) An application for a guardianship proceeding or[,] a
300	300	complaint, petition, or other paper permitted or required by law to
301	301	be filed in the court in a guardianship proceeding [matters] shall
302	302	be filed with the county clerk of the proper county.
303	303	SECTION 9. Sections 622(a) and (b), Texas Probate Code, are
304	304	amended to read as follows:
305	305	(a) The laws regulating costs in ordinary civil cases apply
306	306	to a guardianship proceeding [matter] unless otherwise expressly
307	307	provided by this chapter.
308	308	(b) When a person other than the guardian, attorney ad
309	309	litem, or guardian ad litem files an application, complaint, or
310	310	opposition in relation to a guardianship proceeding [matter], the
311	311	clerk may require the person to give security for the probable costs
312	312	of the [guardianship] proceeding before filing. A person
313	313	interested in the guardianship or in the welfare of the ward, or an
314	314	officer of the court, at any time before the trial of an
315	315	application, complaint, or opposition in relation to a guardianship
316	316	proceeding [matter], may obtain from the court, on written motion,
317	317	an order requiring the person who filed the application, complaint,
318	318	or opposition to give security for the probable costs of the
319	319	proceeding. The rules governing civil suits in the county court
320	320	relating to this subject control in these cases.
321	321	SECTION 10. Section 629, Texas Probate Code, is amended to
322	322	read as follows:
323	323	Sec. 629. CALL OF THE DOCKETS. The judge of the court in
324	324	which a guardianship proceeding is pending, as the judge
325	325	determines, shall call guardianship proceedings [matters] in their
326	326	regular order on both the guardianship and claim dockets and shall
327	327	make necessary orders.
328	328	SECTION 11. Section 630, Texas Probate Code, is amended to
329	329	read as follows:
330	330	Sec. 630. CLERK MAY SET HEARINGS. If the [county] judge is
331	331	absent from the county seat or is on vacation, disqualified, ill, or
332	332	deceased and is unable to designate the time and place for hearing a
333	333	guardianship proceeding [matter] pending in the judge's court, the
334	334	county clerk of the county in which the proceeding [matter] is
335	335	pending may designate the time and place for hearing, entering the
336	336	setting on the judge's docket and certifying on the docket the
337	337	reason that the judge is not acting to set the hearing. If a
338	338	qualified judge is not present for the hearing, after service of the
339	339	notices and citations required by law with reference to the time and
340	340	place of hearing has been perfected, the hearing is automatically
341	341	continued from day to day until a qualified judge is present to hear
342	342	and make a determination in the proceeding [determine the matter].
343	343	SECTION 12. The heading to Section 632, Texas Probate Code,
344	344	is amended to read as follows:
345	345	Sec. 632. ISSUANCE, CONTENTS, SERVICE, AND RETURN OF
346	346	CITATION, NOTICES, AND WRITS IN GUARDIANSHIP PROCEEDINGS
347	347	[MATTERS].
348	348	SECTION 13. Sections 632(a), (b), and (h), Texas Probate
349	349	Code, are amended to read as follows:
350	350	(a) A person does not need to be cited or otherwise given
351	351	notice in a guardianship proceeding [matter] except in situations
352	352	in which this chapter expressly provides for citation or the giving
353	353	of notice. If this chapter does not expressly provide for citation
354	354	or the issuance or return of notice in a guardianship proceeding
355	355	[matter], the court may require that notice be given. If the court
356	356	requires that notice be given, the court shall prescribe the form
357	357	and manner of service and return of service.
358	358	(b) Unless a court order is required by a provision of this
359	359	chapter, the county clerk shall issue without a court order
360	360	necessary citations, writs, and process in guardianship
361	361	proceedings [matters] and all notices not required to be issued by
362	362	guardians.
363	363	(h) In a guardianship proceeding [matter] in which citation
364	364	or notice is required to be served by posting and issued in
365	365	conformity with the applicable provision of this code, the citation
366	366	or notice and the service of and return of the citation or notice is
367	367	sufficient and valid if a sheriff or constable posts a copy of the
368	368	citation or notice at the place or places prescribed by this chapter
369	369	on a day that is sufficiently before the return day contained in the
370	370	citation or notice for the period of time for which the citation or
371	371	notice is required to be posted to elapse before the return day of
372	372	the citation or notice. The sufficiency or validity of the citation
373	373	or notice or the service of or return of the service of the citation
374	374	or notice is not affected by the fact that the sheriff or constable
375	375	makes the [his] return on the citation or notice and returns the
376	376	citation or notice to the court before the period elapses for which
377	377	the citation or notice is required to be posted, even though the
378	378	return is made, and the citation or notice is returned to the court,
379	379	on the same day it is issued.
380	380	SECTION 14. Section 641, Texas Probate Code, is amended to
381	381	read as follows:
382	382	Sec. 641. DEFECTS IN PLEADING. A court may not invalidate a
383	383	pleading in a guardianship proceeding [matter] or an order based on
384	384	the pleading based on a defect of form or substance in the pleading,
385	385	unless the defect has been timely objected to and called to the
386	386	attention of the court in which the proceeding was or is pending.
387	387	SECTION 15. Section 646, Texas Probate Code, is amended by
388	388	amending Subsection (e) and adding Subsection (f) to read as
389	389	follows:
390	390	(e) The term of appointment of an attorney ad litem
391	391	appointed under this section expires, without a court order, on the
392	392	date the court [either] appoints a guardian in accordance with
393	393	Section 693 of this code, appoints a successor guardian, or denies
394	394	the application for appointment of a guardian, unless the court
395	395	determines that the continued appointment of the attorney ad litem
396	396	is in the ward's best interest.
397	397	(f) The term of appointment of an attorney ad litem
398	398	appointed under this section continues after the court appoints a
399	399	temporary guardian under Section 875 of this code unless a court
400	400	order provides for the termination or expiration of the attorney ad
401	401	litem's appointment.
402	402	SECTION 16. Section 650, Texas Probate Code, is amended to
403	403	read as follows:
404	404	Sec. 650. DECREES. A decision, order, decree, or judgment
405	405	of the court in a guardianship proceeding [matter] must be rendered
406	406	in open court, except in a case in which it is otherwise expressly
407	407	provided.
408	408	SECTION 17. Section 653, Texas Probate Code, is amended to
409	409	read as follows:
410	410	Sec. 653. EXECUTION. An execution in a guardianship
411	411	proceeding [matter] shall be directed "To any sheriff or any
412	412	constable within the State of Texas," made returnable in 60 days,
413	413	and attested and signed by the clerk officially under the seal of
414	414	the court. A proceeding under an execution in a guardianship
415	415	proceeding [matter] is governed so far as applicable by the laws
416	416	regulating a proceeding under an execution issued from the district
417	417	court. An execution directed to the sheriff or a constable of a
418	418	specific county in this state may not be held defective if the
419	419	execution was properly executed within the county by the officer to
420	420	whom the direction for execution was given.
421	421	SECTION 18. Section 666, Texas Probate Code, is amended to
422	422	read as follows:
423	423	Sec. 666. EXPENSES ALLOWED. A guardian is entitled to be
424	424	reimbursed from the guardianship estate for all necessary and
425	425	reasonable expenses incurred in performing any duty as a guardian,
426	426	including reimbursement for the payment of reasonable attorney's
427	427	fees necessarily incurred by the guardian in connection with the
428	428	management of the estate or any other [guardianship] matter in the
429	429	guardianship.
430	430	SECTION 19. Section 669(a), Texas Probate Code, is amended
431	431	to read as follows:
432	432	(a) Except as provided by Subsection (b) of this section, in
433	433	a guardianship proceeding [matter], the cost of the proceeding,
434	434	including the cost of the guardian ad litem or court visitor, shall
435	435	be paid out of the guardianship estate, or, if the estate is
436	436	insufficient to pay for the cost of the proceeding, the cost of the
437	437	proceeding shall be paid out of the county treasury, and the
438	438	judgment of the court shall be issued accordingly.
439	439	SECTION 20. Sections 682A(a-1) and (a-2), Texas Probate
440	440	Code, are amended to read as follows:
441	441	(a-1) Notwithstanding any other law, if the applicant who
442	442	files an application under Subsection (a) of this section or
443	443	Section 682 of this code is a person who was appointed conservator
444	444	of a disabled child and the proceeding is a guardianship proceeding
445	445	described by Section 601(25)(A) of this code in which the proposed
446	446	ward is the incapacitated adult with respect to whom another court
447	447	obtained continuing, exclusive jurisdiction in a suit affecting the
448	448	parent-child relationship when the person was a child [for whom a
449	449	court obtains jurisdiction under Section 606(k) of this code], the
450	450	applicant may present to the court a written letter or certificate
451	451	that meets the requirements of Section 687(a) of this code.
452	452	(a-2) If, on receipt of the letter or certificate described
453	453	by Subsection (a-1) of this section, the court is able to make the
454	454	findings required by Section 684 of this code, the court,
455	455	notwithstanding Section 677 of this code, shall appoint the
456	456	conservator as guardian without conducting a hearing and shall, to
457	457	the extent possible, preserve the terms of possession and access to
458	458	the ward that applied before the court obtained jurisdiction of the
459	459	guardianship proceeding [under Section 606(k) of this code].
460	460	SECTION 21. Section 687(c), Texas Probate Code, is amended
461	461	to read as follows:
462	462	(c) If the basis of the proposed ward's alleged incapacity
463	463	is mental retardation, the court may not grant an application to
464	464	create a guardianship for the proposed ward unless the applicant
465	465	presents to the court a written letter or certificate that:
466	466	(1) [a written letter or certificate that:
467	467	[(A)] complies with Subsection (a) of this
468	468	section; [and
469	469	[(B) states that the physician has made a
470	470	determination of mental retardation in accordance with Section
471	471	593.005, Health and Safety Code;] or
472	472	(2) shows that [both]:
473	473	(A) [written documentation showing that,] not
474	474	earlier than 24 months before the date of the hearing, the proposed
475	475	ward has been examined by a physician or psychologist licensed in
476	476	this state or certified by the Department of Aging and Disability
477	477	Services to perform the examination, in accordance with rules of
478	478	the executive commissioner of the Health and Human Services
479	479	Commission governing examinations of that kind; and
480	480	(B) the physician's or psychologist's written
481	481	findings and recommendations to the court include [, including] a
482	482	statement as to whether the physician or psychologist has made a
483	483	determination of mental retardation in accordance with Section
484	484	593.005, Health and Safety Code.
485	485	SECTION 22. Section 729(c), Texas Probate Code, is amended
486	486	to read as follows:
487	487	(c) An inventory made under this section must specify:
488	488	(1) what portion of the property is separate property
489	489	and what portion is community property; and
490	490	(2) if [. If] any of the property is owned in common
491	491	with other persons, the interest owned by the ward [shall be shown
492	492	in the inventory, together with the names and relationship, if
493	493	known, of co-owners].
494	494	SECTION 23. Section 730, Texas Probate Code, is amended to
495	495	read as follows:
496	496	Sec. 730. LIST OF CLAIMS. The guardian shall make and
497	497	attach to an inventory under Section 729 of this code a full and
498	498	complete list of all claims due or owing to the ward that must
499	499	state:
500	500	(1) the name of each person indebted to the ward and
501	501	the address of the person if known;
502	502	(2) the nature of the debt, whether it is a note, bill,
503	503	bond, or other written obligation or whether it is an account or
504	504	verbal contract;
505	505	(3) the date of the indebtedness and the date when the
506	506	debt is or was due;
507	507	(4) the amount of each claim, the rate of interest on
508	508	each claim, and time for which the claim bears interest; and
509	509	(5) what portion of the claim is held in common with
510	510	others[, including the names and the relationships of other part
511	511	owners] and the interest of the estate in the claim.
512	512	SECTION 24. Sections 745(a) and (d), Texas Probate Code,
513	513	are amended to read as follows:
514	514	(a) A guardianship of the estate of a ward shall be settled
515	515	when:
516	516	(1) a minor ward dies or becomes an adult by becoming
517	517	18 years of age, or by removal of disabilities of minority according
518	518	to the law of this state, or by marriage;
519	519	(2) an incapacitated ward dies, or is decreed as
520	520	provided by law to have been restored to full legal capacity;
521	521	(3) the spouse of a married ward has qualified as
522	522	survivor in community and the ward owns no separate property;
523	523	(4) the estate of a ward becomes exhausted;
524	524	(5) the foreseeable income accruing to a ward or to the
525	525	ward's [his] estate is so negligible that maintaining the
526	526	guardianship in force would be burdensome;
527	527	(6) all of the assets of the estate have been placed in
528	528	a management trust under Subpart N[, Part 4,] of this part, or have
529	529	been transferred to a pooled trust subaccount in accordance with a
530	530	court order issued as provided by Subpart I, Part 5, of this
531	531	chapter, [code] and the court determines that a guardianship of
532	532	[for] the ward's estate [ward] is no longer necessary; or
533	533	(7) the court determines for any other reason that a
534	534	guardianship for the ward is no longer necessary.
535	535	(d) In the settlement of a guardianship, the court may
536	536	appoint an attorney ad litem to represent the interests of the ward,
537	537	and may allow the attorney ad litem reasonable compensation to be
538	538	taxed as costs [for services provided by the attorney out of the
539	539	ward's estate].
540	540	SECTION 25. Section 770(c), Texas Probate Code, is amended
541	541	to read as follows:
542	542	(c) A guardian of a person younger than 18 [16] years of age
543	543	may voluntarily admit the ward [an incapacitated person] to a
544	544	public or private inpatient psychiatric facility for care and
545	545	treatment.
546	546	SECTION 26. The heading to Subpart M, Part 4, Chapter XIII,
547	547	Texas Probate Code, is amended to read as follows:
548	548	SUBPART M. TAX-MOTIVATED, [TAX MOTIVATED AND] CHARITABLE, AND
549	549	OTHER GIFTS
550	550	SECTION 27. The heading to Section 865, Texas Probate Code,
551	551	is amended to read as follows:
552	552	Sec. 865. POWER TO MAKE CERTAIN [TAX-MOTIVATED] GIFTS AND
553	553	TRANSFERS.
554	554	SECTION 28. Sections 865(a) and (b), Texas Probate Code,
555	555	are amended to read as follows:
556	556	(a) On application of the guardian of the estate or any
557	557	interested person [party] and after the posting of notice, the
558	558	court, after hearing, may enter an order that authorizes the
559	559	guardian to apply the principal or income of the ward's estate that
560	560	is not required for the support of the ward or the ward's family
561	561	during the ward's lifetime toward the establishment of an estate
562	562	plan for the purpose of minimizing income, estate, inheritance, or
563	563	other taxes payable out of the ward's estate, or to transfer a
564	564	portion of the ward's estate as necessary to qualify the ward for
565	565	government benefits and only to the extent allowed by applicable
566	566	state or federal laws, including rules, regarding those benefits,
567	567	on a showing that the ward will probably remain incapacitated
568	568	during the ward's lifetime. On the ward's behalf, the court may
569	569	authorize the guardian to make gifts or transfers described by this
570	570	subsection, outright or in trust, of the ward's [personal] property
571	571	[or real estate] to or for the benefit of:
572	572	(1) an organization to which charitable contributions
573	573	may be made under the Internal Revenue Code and in which it is shown
574	574	the ward would reasonably have an interest;
575	575	(2) the ward's spouse, descendant, or other person
576	576	related to the ward by blood or marriage who are identifiable at the
577	577	time of the order;
578	578	(3) a devisee under the ward's last validly executed
579	579	will, trust, or other beneficial instrument if the instrument
580	580	exists; and
581	581	(4) a person serving as guardian of the ward if the
582	582	person is eligible under either Subdivision (2) or (3) of this
583	583	subsection.
584	584	(b) The person making an application to the court under this
585	585	section shall outline the proposed estate or other transfer plan
586	586	and set forth all the benefits that are to be derived from the
587	587	[estate] plan. The application must indicate that the planned
588	588	disposition is consistent with the ward's intentions if the ward's
589	589	intentions can be ascertained. If the ward's intentions cannot be
590	590	ascertained, the ward will be presumed to favor reduction in the
591	591	incidence of the various forms of taxation, the qualification for
592	592	government benefits, and the partial distribution of the ward's
593	593	estate as provided by this section.
594	594	SECTION 29. Sections 867(a-1), (b), (c), and (f), Texas
595	595	Probate Code, are amended to read as follows:
596	596	(a-1) The following persons may apply for the creation of a
597	597	trust under this section:
598	598	(1) the guardian of the estate of a ward;
599	599	(2) the guardian of the person of a ward;
600	600	(3) the guardian of both the person of and estate of a
601	601	ward;
602	602	(4) an attorney ad litem or guardian ad litem
603	603	appointed to represent a ward or the ward's interests;
604	604	(5) a person interested in the welfare of an alleged
605	605	incapacitated person who does not have a guardian [of the estate];
606	606	[or]
607	607	(6) an attorney ad litem or guardian ad litem
608	608	appointed to represent an alleged incapacitated person who does not
609	609	have a guardian; or
610	610	(7) a person who has only a physical disability [that
611	611	person's interests].
612	612	(b) On application by an appropriate person as provided by
613	613	Subsection (a-1) of this section and subject to Subsection (b-1) of
614	614	this section, if applicable, the court with jurisdiction over the
615	615	proceedings [guardianship] may enter an order that creates [for the
616	616	ward's benefit] a trust for the management of the [guardianship]
617	617	funds of the person with respect to whom the application is filed if
618	618	the court finds that the creation of the trust is in the person's
619	619	[ward's] best interests.
620	620	(c) Subject to Subsection (d) of this section, if the court
621	621	finds that it is in the [ward's or incapacitated person's] best
622	622	interests of the person for whom a trust is created under this
623	623	section, the court may appoint a person or entity that meets the
624	624	requirements of Subsection (e) of this section to serve as trustee
625	625	of the trust instead of appointing a financial institution to serve
626	626	in that capacity.
627	627	(f) If a trust is created for a person [ward], the order
628	628	shall direct any [a] person or entity holding property belonging to
629	629	the person for whom the trust is created [ward] or to which that
630	630	person [the ward] is entitled to deliver all or part of the property
631	631	to a person or corporate fiduciary appointed by the court as trustee
632	632	of the trust. [If a trust is created for an incapacitated person who
633	633	does not have a guardian, the order shall direct a person holding
634	634	property belonging to the incapacitated person or to which the
635	635	incapacitated person is entitled to deliver all or part of the
636	636	property to the corporate fiduciary or other person appointed as
637	637	trustee of the trust.] The order shall include terms, conditions,
638	638	and limitations placed on the trust. The court may [shall]
639	639	maintain the trust under the same cause number as the guardianship
640	640	proceeding, if the person for whom the trust is created is a ward or
641	641	proposed ward [applicable].
642	642	SECTION 30. Sections 868(a), (b), and (d), Texas Probate
643	643	Code, are amended to read as follows:
644	644	(a) Except as provided by Subsection (d) of this section, a
645	645	trust created under Section 867 of this code must provide that:
646	646	(1) the ward, [or] incapacitated person, or person who
647	647	has only a physical disability is the sole beneficiary of the trust;
648	648	(2) the trustee may disburse an amount of the trust's
649	649	principal or income as the trustee determines is necessary to
650	650	expend for the health, education, support, or maintenance of the
651	651	[ward or incapacitated] person for whom the trust is created;
652	652	(3) the income of the trust that the trustee does not
653	653	disburse under Subdivision (2) of this subsection must be added to
654	654	the principal of the trust;
655	655	(4) if the trustee is a corporate fiduciary, the
656	656	trustee serves without giving a bond; and
657	657	(5) the trustee, subject to the court's approval, is
658	658	entitled to receive reasonable compensation for services that the
659	659	trustee provided to the [ward or incapacitated] person for whom the
660	660	trust is created as the [ward's or incapacitated] person's trustee
661	661	that is:
662	662	(A) to be paid from the trust's income,
663	663	principal, or both; and
664	664	(B) determined, paid, reduced, and eliminated in
665	665	the same manner as compensation of a guardian [of an estate] under
666	666	Section 665 of this code.
667	667	(b) The trust may provide that a trustee make a
668	668	distribution, payment, use, or application of trust funds for the
669	669	health, education, support, or maintenance of the [ward or
670	670	incapacitated] person for whom the trust is created or of another
671	671	person whom the [ward or incapacitated] person for whom the trust is
672	672	created is legally obligated to support, as necessary and without
673	673	the intervention of a guardian or other representative of the ward
674	674	or of a representative of the incapacitated person or person who has
675	675	only a physical disability, to:
676	676	(1) the ward's guardian;
677	677	(2) a person who has physical custody of the [ward or
678	678	incapacitated] person for whom the trust is created or another
679	679	person whom the [ward or incapacitated] person for whom the trust is
680	680	created is legally obligated to support; or
681	681	(3) a person providing a good or service to the [ward
682	682	or incapacitated] person for whom the trust is created or another
683	683	person whom the [ward or incapacitated] person for whom the trust is
684	684	created is legally obligated to support.
685	685	(d) When creating or modifying a trust, the court may omit
686	686	or modify terms required by Subsection (a)(1) or (2) of this section
687	687	only if the court determines that the omission or modification:
688	688	(1) is necessary and appropriate for the [ward or
689	689	incapacitated] person for whom the trust is created to be eligible
690	690	to receive public benefits or assistance under a state or federal
691	691	program that is not otherwise available to the [ward or
692	692	incapacitated] person; and
693	693	(2) is in the [ward's or incapacitated person's] best
694	694	interests of the person for whom the trust is created.
695	695	SECTION 31. Section 868C(a), Texas Probate Code, is amended
696	696	to read as follows:
697	697	(a) If the court determines that it is in the [ward's or
698	698	incapacitated person's] best interests of the person for whom a
699	699	trust is created under Section 867 of this code, the court may order
700	700	the transfer of all property in the [a management] trust [created
701	701	under Section 867 of this code] to a subaccount of a pooled trust
702	702	established in accordance with Subpart I, Part 5, of this chapter.
703	703	The transfer of property from the management trust to the
704	704	subaccount of the pooled trust shall be treated as a continuation of
705	705	the management trust and may not be treated as the establishment of
706	706	a new trust for purposes of 42 U.S.C. Section 1396p(d)(4)(A) or (C)
707	707	or otherwise for purposes of the management trust beneficiary's
708	708	[ward's or incapacitated person's] eligibility for medical
709	709	assistance under Chapter 32, Human Resources Code.
710	710	SECTION 32. Section 869(b), Texas Probate Code, is amended
711	711	to read as follows:
712	712	(b) The following may not revoke the trust:
713	713	(1) the ward for whom the trust is created or the
714	714	guardian of the ward's estate;
715	715	(2) [or] the incapacitated person for whom the trust
716	716	is created; or
717	717	(3) the person who has only a physical disability for
718	718	whom the trust is created[, as applicable, may not revoke the
719	719	trust].
720	720	SECTION 33. Section 870, Texas Probate Code, is amended to
721	721	read as follows:
722	722	Sec. 870. TERMINATION OF TRUST. (a) If the [ward or
723	723	incapacitated] person for whom a trust is created under Section 867
724	724	of this code is a minor, the trust terminates:
725	725	(1) on the person's death [of the ward or incapacitated
726	726	person] or the [ward's or incapacitated] person's 18th birthday,
727	727	whichever is earlier; or
728	728	(2) on the date provided by court order, which may not
729	729	be later than the [ward's or incapacitated] person's 25th birthday.
730	730	(b) If the [ward or incapacitated] person for whom a trust
731	731	is created under Section 867 of this code is not a minor, the trust
732	732	terminates:
733	733	(1) according to the terms of the trust;
734	734	(2) on the date the court determines that continuing
735	735	the trust is no longer in the [ward's or incapacitated] person's
736	736	best interests, subject to Section 868C(b) of this code; [,] or
737	737	(3) on the person's death [of the ward or incapacitated
738	738	person].
739	739	SECTION 34. Subpart N, Part 4, Chapter XIII, Texas Probate
740	740	Code, is amended by adding Section 870A to read as follows:
741	741	Sec. 870A. INITIAL ACCOUNTING BY CERTAIN TRUSTEES REQUIRED.
742	742	(a) This section applies only to a trustee of a trust created under
743	743	Section 867 of this code for a person for whom a guardianship
744	744	proceeding is pending on the date the trust is created.
745	745	(b) Not later than the 30th day after the date a trustee to
746	746	which this section applies receives property into the trust, the
747	747	trustee shall file with the court in which the guardianship
748	748	proceeding is pending a report describing all property held in the
749	749	trust on the date of the report and specifying the value of the
750	750	property on that date.
751	751	SECTION 35. Section 871, Texas Probate Code, is amended by
752	752	amending Subsection (a) and adding Subsection (d) to read as
753	753	follows:
754	754	(a) Except as provided by Subsection (d) of this section,
755	755	the [The] trustee shall prepare and file with the court an annual
756	756	accounting of transactions in the trust in the same manner and form
757	757	that is required of a guardian under this chapter.
758	758	(d) The court may not require a trustee of a trust created
759	759	for a person who has only a physical disability to prepare and file
760	760	with the court the annual accounting as described by Subsection (a)
761	761	of this section.
762	762	SECTION 36. Section 873, Texas Probate Code, is amended to
763	763	read as follows:
764	764	Sec. 873. DISTRIBUTION OF TRUST PROPERTY. (a) Unless
765	765	otherwise provided by the court and except as provided by
766	766	Subsection (b) of this section, the trustee shall:
767	767	(1) prepare a final account in the same form and manner
768	768	that is required of a guardian under Section 749 of this code; and
769	769	(2) on court approval, distribute the principal or any
770	770	undistributed income of the trust:
771	771	(A) to the ward or incapacitated person when the
772	772	trust terminates on its own terms;
773	773	(B) to the successor trustee on appointment of a
774	774	successor trustee; or
775	775	(C) to the representative of the deceased ward's
776	776	or incapacitated person's estate on the ward's or incapacitated
777	777	person's death.
778	778	(b) The court may not require a trustee of a trust created
779	779	for a person who has only a physical disability to prepare and file
780	780	with the court a final account as described by Subsection (a)(1) of
781	781	this section. The trustee shall distribute the principal and any
782	782	undistributed income of the trust in the manner provided by
783	783	Subsection (a)(2) of this section for a trust the beneficiary of
784	784	which is a ward or incapacitated person.
785	785	SECTION 37. Section 910(1), Texas Probate Code, is amended
786	786	to read as follows:
787	787	(1) "Beneficiary" means a minor or other incapacitated
788	788	person, an alleged incapacitated person, or a disabled person who
789	789	is not an [, or any other] incapacitated person for whom a
790	790	subaccount is established.
791	791	SECTION 38. Section 911, Texas Probate Code, is amended to
792	792	read as follows:
793	793	Sec. 911. APPLICATION. The following persons [A person
794	794	interested in the welfare of a minor, a disabled person, or any
795	795	other incapacitated person] may apply to the court for the
796	796	establishment of a subaccount for the benefit of a [the] minor[,
797	797	disabled person,] or other incapacitated person, an alleged
798	798	incapacitated person, or a disabled person who is not an
799	799	incapacitated person:
800	800	(1) the guardian of the incapacitated person;
801	801	(2) a person who has filed an application for the
802	802	appointment of a guardian for the alleged incapacitated person;
803	803	(3) an attorney ad litem or guardian ad litem
804	804	appointed to represent:
805	805	(A) the incapacitated person who is a ward or
806	806	that person's interests; or
807	807	(B) the alleged incapacitated person who does not
808	808	have a guardian; or
809	809	(4) the disabled person [as the beneficiary].
810	810	SECTION 39. Section 25.0022(i), Government Code, is amended
811	811	to read as follows:
812	812	(i) A judge assigned under this section has the
813	813	jurisdiction, powers, and duties given by Sections 4A, 4C, 4F, 4G,
814	814	4H, 5B, 605, 607A, 607B, 607D, 607E [606, 607], and 608, Texas
815	815	Probate Code, to statutory probate court judges by general law.
816	816	SECTION 40. Section 25.1132(c), Government Code, is amended
817	817	to read as follows:
818	818	(c) A county court at law in Hood County has concurrent
819	819	jurisdiction with the district court in:
820	820	(1) civil cases in which the matter in controversy
821	821	exceeds $500 but does not exceed $250,000, excluding interest;
822	822	(2) family law cases and related proceedings;
823	823	(3) contested probate matters under Section 4D(a),
824	824	Texas Probate Code; and
825	825	(4) contested [guardianship] matters in guardianship
826	826	proceedings under Section 607B(a) [606(b)], Texas Probate Code.
827	827	SECTION 41. Notwithstanding the transfer of Sections 606
828	828	and 607, Texas Probate Code, to the Estates Code and redesignation
829	829	as Sections 606 and 607 of that code effective January 1, 2014, by
830	830	Section 5, Chapter 680 (H.B. 2502), Acts of the 81st Legislature,
831	831	Regular Session, 2009, Sections 606 and 607, Texas Probate Code,
832	832	are repealed.
833	833	SECTION 42. (a) Except as otherwise provided by this
834	834	section, the changes in law made by this Act apply to:
835	835	(1) a guardianship created before, on, or after the
836	836	effective date of this Act; and
837	837	(2) an application for a guardianship pending on, or
838	838	filed on or after, the effective date of this Act.
839	839	(b) Sections 605, 608, and 609, Texas Probate Code, as
840	840	amended by this Act, and Sections 606A, 607A, 607B, 607C, 607D, and
841	841	607E, Texas Probate Code, as added by this Act, apply only to an
842	842	action filed or a proceeding commenced on or after the effective
843	843	date of this Act. An action filed or proceeding commenced before
844	844	the effective date of this Act is governed by the law in effect on
845	845	the date the action was filed or the proceeding was commenced, and
846	846	the former law is continued in effect for that purpose.
847	847	(c) Sections 867, 868, 868C, 869, 870, 871, and 873, Texas
848	848	Probate Code, as amended by this Act, and Section 870A, Texas
849	849	Probate Code, as added by this Act, apply only to an application for
850	850	the creation, modification, or termination of a management trust
851	851	under Subpart N, Part 4, Chapter XIII, Texas Probate Code, that is
852	852	filed on or after the effective date of this Act. An application
853	853	described by this subsection that is filed before the effective
854	854	date of this Act is governed by the law in effect on the date the
855	855	application was filed, and the former law is continued in effect for
856	856	that purpose.
857	857	(d) Sections 910 and 911, Texas Probate Code, as amended by
858	858	this Act, apply only to an application for the creation of a pooled
859	859	trust subaccount under Subpart I, Part 5, Chapter XIII, Texas
860	860	Probate Code, that is filed on or after the effective date of this
861	861	Act. An application described by this subsection that is filed
862	862	before the effective date of this Act is governed by the law in
863	863	effect on the date the application was filed, and the former law is
864	864	continued in effect for that purpose.
865	865	SECTION 43. This Act takes effect September 1, 2011.