Texas 2011 - 82nd Regular

Texas Senate Bill SB220 Compare Versions

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1	1	82R29625 KLA-D
2	2	By: Nelson S.B. No. 220
3	3	(Naishtat)
4	4	Substitute the following for S.B. No. 220: No.
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to guardianships, including the assessment of prospective
10	10	wards for, and the provision of, guardianship services by the
11	11	Department of Aging and Disability Services.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Subsection (a), Section 111.042, Government
14	14	Code, is amended to read as follows:
15	15	(a) To provide guardianship services in this state, the
16	16	following individuals must hold a certificate issued under this
17	17	section:
18	18	(1) an individual who is a private professional
19	19	guardian;
20	20	(2) an individual who will provide those services to a
21	21	ward of a private professional guardian [or the Department of Aging
22	22	and Disability Services] on the guardian's [or department's]
23	23	behalf; and
24	24	(3) an individual, other than a volunteer, who will
25	25	provide those services or other services under Section 161.114,
26	26	Human Resources Code, to a ward of a guardianship program or the
27	27	Department of Aging and Disability Services on the program's or
28	28	department's behalf.
29	29	SECTION 2. Section 32.02451, Human Resources Code, is
30	30	amended to read as follows:
31	31	Sec. 32.02451. ADDITIONAL PERSONAL NEEDS ALLOWANCE
32	32	[REIMBURSEMENT] FOR GUARDIANSHIP EXPENSES OF CERTAIN RECIPIENTS.
33	33	(a) In this section, "applied income" has the meaning assigned by
34	34	Section 670, Texas Probate Code.
35	35	(b) To the extent allowed by federal law, the department, in
36	36	computing the applied income of a recipient of medical assistance,
37	37	shall deduct in the manner provided by this section an additional
38	38	personal needs allowance from the earned and unearned income of the
39	39	recipient or, if applicable, the recipient and the recipient's
40	40	spouse, [provide medical assistance reimbursement] for
41	41	compensation and costs ordered to be deducted under Section 670,
42	42	Texas Probate Code. Subject to Subsection (f), a deduction ordered
43	43	by the court under Section 670, Texas Probate Code, is effective
44	44	beginning on the later of:
45	45	(1) the month in which the order is signed; or
46	46	(2) the first month of medical assistance eligibility
47	47	for which the recipient is subject to a copayment[, in a
48	48	guardianship established for a medical assistance recipient].
49	49	(c) The department shall compute the applied income of a
50	50	recipient of medical assistance as follows:
51	51	(1) the department shall deduct from the earned and
52	52	unearned income the personal needs allowance authorized by Section
53	53	32.024(w) before making any other deduction;
54	54	(2) if after the deduction under Subdivision (1) the
55	55	recipient has remaining income, the department shall deduct the
56	56	lesser of the following:
57	57	(A) the amount of the remaining income; or
58	58	(B) the amount of the additional personal needs
59	59	allowance for compensation and costs ordered to be deducted under
60	60	Section 670, Texas Probate Code; and
61	61	(3) if after the deductions under Subdivisions (1) and
62	62	(2) the recipient has remaining income, the department shall deduct
63	63	any other authorized allowances.
64	64	(d) The amount of income remaining, if any, after the
65	65	department makes the deductions as provided by Subsection (c) is
66	66	the amount of the applied income of the recipient of medical
67	67	assistance.
68	68	(e) The executive commissioner of the Health and Human
69	69	Services Commission shall adopt rules providing a procedure by
70	70	which a recipient of medical assistance for [person to] whom
71	71	amounts are ordered deducted [paid] under Section 670, Texas
72	72	Probate Code, [that section] may submit to the department a copy of
73	73	the court order issued under that section to receive a deduction of
74	74	those amounts from the recipient's income as provided by this
75	75	section [a claim to and receive reimbursement from the medical
76	76	assistance program].
77	77	(f) The department may not allow a deduction for the
78	78	additional personal needs allowance for compensation and costs
79	79	ordered to be deducted under Section 670, Texas Probate Code, if the
80	80	order is issued after the recipient of medical assistance dies.
81	81	SECTION 3. Subsections (a) and (b), Section 161.109, Human
82	82	Resources Code, are amended to read as follows:
83	83	(a) The department shall have access to all of the records
84	84	and documents concerning an individual who is referred for
85	85	guardianship services or to whom guardianship services are provided
86	86	under this subchapter that are necessary to the performance of the
87	87	department's duties under this subchapter, including:
88	88	(1) client-identifying information; and
89	89	(2) medical, psychological, educational, financial,
90	90	and [or] residential information.
91	91	(b) The department is exempt from the payment of a fee
92	92	otherwise required or authorized by law to obtain a financial or
93	93	medical record, including a mental health record, from any source
94	94	[a hospital or health care provider] if the request for a record is
95	95	related to [made in the course of] an assessment for guardianship
96	96	services conducted by the department or the provision of
97	97	guardianship services by the department.
98	98	SECTION 4. Section 161.111, Human Resources Code, is
99	99	amended by adding Subsections (e) and (f) to read as follows:
100	100	(e) To the extent consistent with department policies and
101	101	procedures, the department on request may release confidential
102	102	information in the record of an individual who is assessed by the
103	103	department or is a former ward of the department to:
104	104	(1) the individual;
105	105	(2) the individual's guardian; or
106	106	(3) an executor or administrator of the individual's
107	107	estate.
108	108	(f) Before releasing confidential information under
109	109	Subsection (e), the department shall edit the information to
110	110	protect the identity of the reporter to the Department of Family and
111	111	Protective Services and to protect any other individual whose life
112	112	or safety may be endangered by the release. A release of
113	113	information under Subsection (e) does not constitute a release for
114	114	purposes of waiving the confidentiality of the information
115	115	released.
116	116	SECTION 5. Subchapter E, Chapter 161, Human Resources Code,
117	117	is amended by adding Section 161.114 to read as follows:
118	118	Sec. 161.114. USE OF VOLUNTEERS. (a) In this section,
119	119	"volunteer" has the meaning assigned by Section 161.113.
120	120	(b) The department shall encourage the involvement of
121	121	volunteers in guardianships in which the department serves as
122	122	guardian of the person or estate, or both. To encourage that
123	123	involvement, the department shall identify issues and tasks with
124	124	which a volunteer could assist the department in a guardianship,
125	125	subject to Subsection (c).
126	126	(c) A volunteer may provide life enrichment activities,
127	127	companionship, transportation services, and other services to or
128	128	for the ward in a guardianship, except the volunteer may not provide
129	129	services that would require the volunteer to be certified under
130	130	Section 111.042, Government Code.
131	131	SECTION 6. Section 633, Texas Probate Code, is amended by
132	132	amending Subsections (b) and (d) and adding Subsection (c-1) to
133	133	read as follows:
134	134	(b) The court clerk shall issue a citation stating that the
135	135	application for guardianship was filed, the name of the proposed
136	136	ward, the name of the applicant, and the name of the person to be
137	137	appointed guardian as provided in the application, if that person
138	138	is not the applicant. The citation must cite all persons interested
139	139	in the welfare of the proposed ward to appear at the time and place
140	140	stated in the notice if they wish to contest the application and
141	141	must contain a clear and conspicuous statement informing those
142	142	interested persons of the right provided under Section 632(j) of
143	143	this code to be notified of any or all motions, applications, or
144	144	pleadings relating to the application for the guardianship or any
145	145	subsequent guardianship proceeding involving the ward after the
146	146	guardianship is created, if any. The citation shall be posted.
147	147	(c-1) The citation served as provided by Subsection (c) of
148	148	this section must contain the statement regarding the right
149	149	provided under Section 632(j) of this code that is required in the
150	150	citation issued under Subsection (b) of this section.
151	151	(d) The applicant shall mail a copy of the application for
152	152	guardianship and a notice containing the information required in
153	153	the citation issued under Subsection (b) of this section by
154	154	registered or certified mail, return receipt requested, or by any
155	155	other form of mail that provides proof of delivery, to the following
156	156	persons, if their whereabouts are known or can be reasonably
157	157	ascertained:
158	158	(1) all adult children of a proposed ward;
159	159	(2) all adult siblings of a proposed ward;
160	160	(3) the administrator of a nursing home facility or
161	161	similar facility in which the proposed ward resides;
162	162	(4) the operator of a residential facility in which
163	163	the proposed ward resides;
164	164	(5) a person whom the applicant knows to hold a power
165	165	of attorney signed by the proposed ward;
166	166	(6) a person designated to serve as guardian of the
167	167	proposed ward by a written declaration under Section 679 of this
168	168	code, if the applicant knows of the existence of the declaration;
169	169	(7) a person designated to serve as guardian of the
170	170	proposed ward in the probated will of the last surviving parent of
171	171	the ward;
172	172	(8) a person designated to serve as guardian of the
173	173	proposed ward by a written declaration of the proposed ward's last
174	174	surviving parent, if the declarant is deceased and the applicant
175	175	knows of the existence of the declaration; and
176	176	(9) each person named as another relative within the
177	177	third degree by consanguinity [next of kin] in the application for
178	178	guardianship as required by Section 682(10) or (12) of this code if
179	179	the proposed ward's spouse and each of the proposed ward's parents,
180	180	adult siblings, and adult children are deceased or there is no
181	181	spouse, parent, adult sibling, or adult child.
182	182	SECTION 7. Subpart E, Part 2, Chapter XIII, Texas Probate
183	183	Code, is amended by adding Section 646A to read as follows:
184	184	Sec. 646A. REPRESENTATION OF WARD OR PROPOSED WARD BY
185	185	ATTORNEY. (a) The following persons may at any time retain an
186	186	attorney who holds a certificate required by Section 647A of this
187	187	code to represent the person's interests in a guardianship matter
188	188	instead of having those interests represented by an attorney ad
189	189	litem appointed under Section 646 of this code or another provision
190	190	of this chapter:
191	191	(1) a ward who retains the power to enter into a
192	192	contract under the terms of the guardianship, subject to Section
193	193	694K of this code; and
194	194	(2) a proposed ward for purposes of a proceeding for
195	195	the appointment of a guardian as long as the proposed ward has
196	196	capacity to contract.
197	197	(b) If the court finds that the ward or the proposed ward has
198	198	capacity to contract, the court may remove an attorney ad litem
199	199	appointed under Section 646 of this code or any other provision of
200	200	this chapter that requires the court to appoint an attorney ad litem
201	201	to represent the interests of a ward or proposed ward and appoint a
202	202	ward or a proposed ward's retained counsel.
203	203	SECTION 8. Section 670, Texas Probate Code, is amended to
204	204	read as follows:
205	205	Sec. 670. COMPENSATION OF CERTAIN GUARDIANS; CERTAIN OTHER
206	206	GUARDIANSHIP COSTS. (a) In this section:
207	207	(1) "Applied income" means the portion of the earned
208	208	and unearned income of a recipient of medical assistance or, if
209	209	applicable, the recipient and the recipient's spouse, that is paid
210	210	under the medical assistance program to an institution or long-term
211	211	care facility [a nursing home] in which the recipient resides.
212	212	(2) "Medical assistance" has the meaning assigned by
213	213	Section 32.003, Human Resources Code.
214	214	(b) Notwithstanding any other provision of this chapter and
215	215	to the extent permitted by federal law, a court that appoints a
216	216	guardian for a recipient of medical assistance who has applied
217	217	income may order the following to be deducted as an additional
218	218	personal needs allowance in the computation of the recipient's
219	219	applied income in accordance with Section 32.02451, Human Resources
220	220	Code [paid under the medical assistance program]:
221	221	(1) compensation to the guardian in an amount not to
222	222	exceed $175 per month;
223	223	(2) costs directly related to establishing or
224	224	terminating the guardianship, not to exceed $1,000 except as
225	225	provided by Subsection (c) of this section; and
226	226	(3) other administrative costs related to the
227	227	guardianship, not to exceed $1,000 during any three-year period.
228	228	(c) Costs ordered to be deducted [paid] under Subsection
229	229	(b)(2) of this section may include compensation and expenses for an
230	230	attorney ad litem or guardian ad litem and reasonable attorney's
231	231	fees for an attorney representing the guardian. The costs ordered
232	232	to be paid may exceed $1,000 if the costs in excess of that amount
233	233	are supported by documentation acceptable to the court and the
234	234	costs are approved by the court.
235	235	(d) A court may not order:
236	236	(1) that the deduction for compensation and costs
237	237	under Subsection (b) of this section take effect before the later
238	238	of:
239	239	(A) the month in which the court order issued
240	240	under that subsection is signed; or
241	241	(B) the first month of medical assistance
242	242	eligibility for which the recipient is subject to a copayment; or
243	243	(2) a deduction for services provided before the
244	244	effective date of the deduction as provided by Subdivision (1) of
245	245	this subsection.
246	246	SECTION 9. Section 682, Texas Probate Code, is amended to
247	247	read as follows:
248	248	Sec. 682. APPLICATION; CONTENTS. Any person may commence a
249	249	proceeding for the appointment of a guardian by filing a written
250	250	application in a court having jurisdiction and venue. The
251	251	application must be sworn to by the applicant and state:
252	252	(1) the name, sex, date of birth, and address of the
253	253	proposed ward;
254	254	(2) the name, relationship, and address of the person
255	255	the applicant desires to have appointed as guardian;
256	256	(3) whether guardianship of the person or estate, or
257	257	both, is sought;
258	258	(4) the nature and degree of the alleged incapacity,
259	259	the specific areas of protection and assistance requested, and the
260	260	limitation or termination of rights requested to be included in the
261	261	court's order of appointment, including a termination of:
262	262	(A) the right of a proposed ward who is 18 years
263	263	of age or older to vote in a public election; and
264	264	(B) the proposed ward's eligibility to hold or
265	265	obtain a license to operate a motor vehicle under Chapter 521,
266	266	Transportation Code;
267	267	(5) the facts requiring that a guardian be appointed
268	268	and the interest of the applicant in the appointment;
269	269	(6) the nature and description of any guardianship of
270	270	any kind existing for the proposed ward in any other state;
271	271	(7) the name and address of any person or institution
272	272	having the care and custody of the proposed ward;
273	273	(8) the approximate value and description of the
274	274	proposed ward's property, including any compensation, pension,
275	275	insurance, or allowance to which the proposed ward may be entitled;
276	276	(9) the name and address of any person whom the
277	277	applicant knows to hold a power of attorney signed by the proposed
278	278	ward and a description of the type of power of attorney;
279	279	(10) if the proposed ward is a minor and if known by
280	280	the applicant:
281	281	(A) the name of each parent of the proposed ward
282	282	and state the parent's address or that the parent is deceased;
283	283	(B) the name and age of each sibling, if any, of
284	284	the proposed ward and state the sibling's address or that the
285	285	sibling is deceased; and
286	286	(C) if each of the proposed ward's parents and
287	287	adult siblings are deceased, the names and addresses of the
288	288	proposed ward's other living relatives who are related to the
289	289	proposed ward within the third degree by consanguinity and [next of
290	290	kin] who are adults;
291	291	(11) if the proposed ward is a minor, whether the minor
292	292	was the subject of a legal or conservatorship proceeding within the
293	293	preceding two-year period and, if so, the court involved, the
294	294	nature of the proceeding, and the final disposition, if any, of the
295	295	proceeding;
296	296	(12) if the proposed ward is an adult and if known by
297	297	the applicant:
298	298	(A) the name of the proposed ward's spouse, if
299	299	any, and state the spouse's address or that the spouse is deceased;
300	300	(B) the name of each of the proposed ward's
301	301	parents and state the parent's address or that the parent is
302	302	deceased;
303	303	(C) the name and age of each of the proposed
304	304	ward's siblings, if any, and state the sibling's address or that the
305	305	sibling is deceased;
306	306	(D) the name and age of each of the proposed
307	307	ward's children, if any, and state the child's address or that the
308	308	child is deceased; and
309	309	(E) if the proposed ward's spouse and each of the
310	310	proposed ward's parents, adult siblings, and adult children are
311	311	deceased, or, if there is no spouse, parent, adult sibling, or adult
312	312	child, the names and addresses of the proposed ward's other living
313	313	relatives who are related to the proposed ward within the third
314	314	degree by consanguinity and [next of kin] who are adults;
315	315	(13) facts showing that the court has venue over the
316	316	proceeding; and
317	317	(14) if applicable, that the person whom the applicant
318	318	desires to have appointed as a guardian is a private professional
319	319	guardian who is certified under Subchapter C, Chapter 111,
320	320	Government Code, and has complied with the requirements of Section
321	321	697 of this code.
322	322	SECTION 10. Subsection (d), Section 697B, Texas Probate
323	323	Code, is amended to read as follows:
324	324	(d) An individual volunteering with a guardianship program
325	325	or with the Department of Aging and Disability Services is not
326	326	required to be certified as provided by this section to provide
327	327	guardianship services or other services under Section 161.114,
328	328	Human Resources Code, on the program's or the department's behalf.
329	329	SECTION 11. Section 761, Texas Probate Code, is amended by
330	330	amending Subsections (a), (c), and (f) and adding Subsections
331	331	(a-1), (h), and (i) to read as follows:
332	332	(a) The court, on its own motion or on motion of any
333	333	interested person, including the ward, and without notice, may
334	334	remove any guardian[,] appointed under this chapter[,] who:
335	335	(1) neglects to qualify in the manner and time
336	336	required by law;
337	337	(2) fails to return within 30 days after
338	338	qualification, unless the time is extended by order of the court, an
339	339	inventory of the property of the guardianship estate and list of
340	340	claims that have come to the guardian's knowledge;
341	341	(3) having been required to give a new bond, fails to
342	342	do so within the time prescribed;
343	343	(4) absents himself or herself from the state for a
344	344	period of three months at one time without permission of the court,
345	345	or removes from the state;
346	346	(5) cannot be served with notices or other processes
347	347	because of the fact that:
348	348	(A) the guardian's whereabouts are unknown;
349	349	(B) the guardian is eluding service; or
350	350	(C) the guardian is a nonresident of this state
351	351	who does not have a resident agent to accept service of process in
352	352	any guardianship proceeding or other matter relating to the
353	353	guardianship;
354	354	(6) has misapplied, embezzled, or removed from the
355	355	state, or is about to misapply, embezzle, or remove from the state,
356	356	all or any part of the property committed to the guardian's care;
357	357	(7) has engaged in conduct with respect to the ward
358	358	that would be considered to be abuse, neglect, or exploitation, as
359	359	those terms are defined by Section 48.002, Human Resources Code, if
360	360	engaged in with respect to an elderly or disabled person, as defined
361	361	by that section [neglected or cruelly treated a ward]; or
362	362	(8) has neglected to educate or maintain the ward as
363	363	liberally as the means of the ward and the condition of the ward's
364	364	estate permit.
365	365	(a-1) In a proceeding to remove a guardian under Subsection
366	366	(a)(6), (7), or (8) of this section, the court shall appoint a
367	367	guardian ad litem as provided by Section 645 of this code and an
368	368	attorney ad litem. The attorney ad litem has the duties prescribed
369	369	by Section 647 of this code. In the interest of judicial economy,
370	370	the court may appoint the same person as guardian ad litem and
371	371	attorney ad litem unless a conflict exists between the interests to
372	372	be represented by the guardian ad litem and attorney ad litem.
373	373	(c) The court may remove a guardian on its own motion, or on
374	374	the complaint of an interested person, after the guardian has been
375	375	cited by personal service to answer at a time and place set in the
376	376	notice, when:
377	377	(1) sufficient grounds appear to support belief that
378	378	the guardian has misapplied, embezzled, or removed from the state,
379	379	or that the guardian is about to misapply, embezzle, or remove from
380	380	the state, all or any part of the property committed to the care of
381	381	the guardian;
382	382	(2) the guardian fails to return any account or report
383	383	that is required by law to be made;
384	384	(3) the guardian fails to obey any proper order of the
385	385	court having jurisdiction with respect to the performance of the
386	386	guardian's duties;
387	387	(4) the guardian is proved to have been guilty of gross
388	388	misconduct or mismanagement in the performance of the duties of the
389	389	guardian;
390	390	(5) the guardian becomes incapacitated, or is
391	391	sentenced to the penitentiary, or from any other cause becomes
392	392	incapable of properly performing the duties of the guardian's
393	393	trust;
394	394	(6) the guardian has engaged in conduct with respect
395	395	to the ward that would be considered to be abuse, neglect, or
396	396	exploitation, as those terms are defined by Section 48.002, Human
397	397	Resources Code, if engaged in with respect to an elderly or disabled
398	398	person, as defined by that section [neglects or cruelly treats the
399	399	ward];
400	400	(6-a) the guardian neglects to educate or maintain the
401	401	ward as liberally as the means of the ward's estate and the ward's
402	402	ability or condition permit;
403	403	(7) the guardian interferes with the ward's progress
404	404	or participation in programs in the community;
405	405	(8) the guardian fails to comply with the requirements
406	406	of Section 697 of this code;
407	407	(9) the court determines that, because of the
408	408	dissolution of the joint guardians' marriage, the termination of
409	409	the guardians' joint appointment and the continuation of only one
410	410	of the joint guardians as the sole guardian is in the best interest
411	411	of the ward; or
412	412	(10) the guardian would be ineligible for appointment
413	413	as a guardian under Section 681 of this code.
414	414	(f) If the necessity exists, the court may immediately
415	415	appoint a successor guardian without citation or notice but may not
416	416	discharge the person removed as guardian of the estate or release
417	417	the person or the sureties on the person's bond until final order or
418	418	judgment is rendered on the final account of the guardian. Subject
419	419	to an order of the court, a successor guardian has the rights and
420	420	powers of the removed guardian.
421	421	(h) The appointment of a successor guardian under
422	422	Subsection (f) of this section does not preclude an interested
423	423	person from filing an application to be appointed guardian of the
424	424	ward for whom the successor guardian was appointed. The court shall
425	425	hold a hearing on an application filed under the circumstances
426	426	described by this subsection. At the conclusion of the hearing, the
427	427	court may set aside the appointment of the successor guardian and
428	428	appoint the applicant as the ward's guardian if the applicant is not
429	429	disqualified and after considering the requirements of Section 676
430	430	or 677 of this code, as applicable.
431	431	(i) If the court sets aside the appointment of the successor
432	432	guardian under this section, the court may require the successor
433	433	guardian to prepare and file, under oath, an accounting of the
434	434	estate and to detail the disposition the successor has made of the
435	435	estate property.
436	436	SECTION 12. The Department of Aging and Disability Services
437	437	and the adult protective services division of the Department of
438	438	Family and Protective Services shall identify and implement
439	439	modifications to investigations of abuse, neglect, and
440	440	exploitation conducted under Chapter 48, Human Resources Code, and
441	441	the provision of protective and guardianship services under
442	442	Chapters 48 and 161, Human Resources Code, to ensure that the
443	443	agencies prevent any unnecessary duplication of efforts in
444	444	performing their respective responsibilities under those chapters.
445	445	SECTION 13. (a) Except as otherwise provided by this
446	446	section, the changes in law made by this Act apply to a guardianship
447	447	created before, on, or after the effective date of this Act.
448	448	(b) Section 32.02451, Human Resources Code, as amended by
449	449	this Act, and Section 670, Texas Probate Code, as amended by this
450	450	Act, apply to a recipient of medical assistance under Chapter 32,
451	451	Human Resources Code, regardless of whether the recipient was
452	452	determined eligible for medical assistance before, on, or after the
453	453	effective date of this Act, and regardless of whether a
454	454	guardianship was created for the recipient before, on, or after the
455	455	effective date of this Act.
456	456	(c) Sections 633 and 682, Texas Probate Code, as amended by
457	457	this Act, apply only to an application for a guardianship filed on
458	458	or after the effective date of this Act. An application for a
459	459	guardianship filed before the effective date of this Act is
460	460	governed by the law in effect on the date the application was filed,
461	461	and the former law is continued in effect for that purpose.
462	462	(d) Section 761, Texas Probate Code, as amended by this Act,
463	463	applies only to a proceeding to remove a guardian commenced on or
464	464	after the effective date of this Act. A proceeding to remove a
465	465	guardian commenced before the effective date of this Act is
466	466	governed by the law in effect on the date the proceeding was
467	467	commenced, and the former law is continued in effect for that
468	468	purpose.
469	469	SECTION 14. If before implementing any provision of this
470	470	Act a state agency determines that a waiver or authorization from a
471	471	federal agency is necessary for implementation of that provision,
472	472	the agency affected by the provision shall request the waiver or
473	473	authorization and may delay implementing that provision until the
474	474	waiver or authorization is granted.
475	475	SECTION 15. This Act takes effect September 1, 2011.