83R24875 CLG-F
By: Thompson of Harris, Naishtat, et al. H.B. No. 2080
Substitute the following for H.B. No. 2080:
By: Farrar C.S.H.B. No. 2080
A BILL TO BE ENTITLED
AN ACT
relating to guardianships, including the assessment and payment of
attorney's fees and other court costs in guardianships, and to
court-created management trusts for persons who have physical
disabilities or who are incapacitated; changing the amount of a fee
and requiring the collection of a fee.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1002.002, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 1002.002. ATTORNEY AD LITEM. "Attorney ad litem"
means an attorney appointed by a court to represent and advocate on
behalf of a proposed ward, an incapacitated person, [or] an unborn
person, or another person described by Section 1054.007 in a
guardianship proceeding.
SECTION 2. (a) Notwithstanding the transfer of Section
604, Texas Probate Code, to the Estates Code and redesignation as
Section 604 of that code effective January 1, 2014, by Section
3.01(a), Chapter 823 (H.B. 2759), Acts of the 82nd Legislature,
Regular Session, 2011, Section 604, Texas Probate Code, is
transferred to Chapter 1022, Estates Code, as added by H.B. 3862 or
S.B. 1093, 83rd Legislature, Regular Session, 2013, and
redesignated as Subsection (d), Section 1022.002, Estates Code, to
read as follows:
(d) [Sec. 604. PROCEEDING IN REM.] From the filing of the
application for the appointment of a guardian of the estate or
person, or both, until the guardianship is settled and closed under
this chapter, the administration of the estate of a minor or other
incapacitated person is one proceeding for purposes of jurisdiction
and is a proceeding in rem.
(b) This section takes effect only if H.B. 3862 or S.B.
1093, 83rd Legislature, Regular Session, 2013, is enacted and
becomes law and adds Section 1022.002, Estates Code. If that
legislation does not become law, or becomes law but does not add
that section, this section has no effect.
SECTION 3. Section 1051.253(c), Estates Code, as effective
January 1, 2014, is amended to read as follows:
(c) At the expiration of the 10-day period prescribed by
Subsection (a):
(1) [commission may issue for taking] the depositions
for which the notice was posted may be taken; and
(2) the judge may file cross-interrogatories if no
person appears.
SECTION 4. Section 1052.051, Estates Code, as effective
January 1, 2014, is amended by adding Subsections (d), (e), and (f)
to read as follows:
(d) Except as provided by Subsection (e), the court clerk
shall collect a filing fee, including a deposit for payment to an
attorney ad litem, required by law to be paid on the filing of any
document described by Subsection (a) from the person or entity
filing the document.
(e) Notwithstanding any other law requiring the payment of a
filing fee for the document, the following are not required to pay a
fee on the filing of a document described by Subsection (a):
(1) a guardian;
(2) an attorney ad litem;
(3) a guardian ad litem;
(4) a person or entity who files an affidavit of
inability to pay under Rule 145, Texas Rules of Civil Procedure;
(5) a guardianship program;
(6) a governmental entity; and
(7) a government agency or nonprofit agency providing
guardianship services.
(f) After the creation of a guardianship, a person or entity
is entitled to be reimbursed for a filing fee described by
Subsection (d), other than a deposit for payment to an attorney ad
litem, from:
(1) the guardianship estate; or
(2) the county treasury, if the guardianship estate is
insufficient to pay the amount of the filing fee.
SECTION 5. Subchapter C, Chapter 1053, Estates Code, as
effective January 1, 2014, is amended by adding Sections 1053.104
and 1053.105 to read as follows:
Sec. 1053.104. CONFIDENTIALITY OF CERTAIN INFORMATION. (a)
On request by a person protected by a protective order issued under
Chapter 85, Family Code, or a guardian, attorney ad litem, or member
of the family or household of a person protected by an order, the
court may exclude from any document filed in a guardianship
proceeding:
(1) the address and phone number of the person
protected by the protective order;
(2) the place of employment or business of the person
protected by the protective order;
(3) the school attended by the person protected by the
protective order or the day-care center or other child-care
facility the person attends or in which the person resides; and
(4) the place at which service of process on the person
protected by the protective order was effectuated.
(b) On granting a request for confidentiality under this
section, the court shall order the clerk to:
(1) strike the information described by Subsection (a)
from the public records of the court; and
(2) maintain a confidential record of the information
for use only by the court.
Sec. 1053.105. INAPPLICABILITY OF CERTAIN RULES OF CIVIL
PROCEDURE. The following do not apply to guardianship proceedings:
(1) Rules 47(c) and 169, Texas Rules of Civil
Procedure; and
(2) the portions of Rule 190.2, Texas Rules of Civil
Procedure, concerning expedited actions under Rule 169, Texas Rules
of Civil Procedure.
SECTION 6. Subchapter A, Chapter 1054, Estates Code, as
effective January 1, 2014, is amended by adding Section 1054.007 to
read as follows:
Sec. 1054.007. ATTORNEYS AD LITEM. (a) Except in a
situation in which this title requires the appointment to represent
the interests of the person, a court may appoint an attorney ad
litem in any guardianship proceeding to represent the interests of:
(1) an incapacitated person or another person who has
a legal disability;
(2) a proposed ward;
(3) a nonresident;
(4) an unborn or unascertained person; or
(5) an unknown or missing potential heir.
(b) An attorney ad litem appointed under this section is
entitled to reasonable compensation for services provided in the
amount set by the court, to be taxed as costs in the proceeding.
SECTION 7. Chapter 1055, Estates Code, as effective January
1, 2014, is amended by adding Subchapter D to read as follows:
SUBCHAPTER D. MEDIATION
Sec. 1055.151. MEDIATION OF CONTESTED GUARDIANSHIP
PROCEEDING. (a) On the written agreement of the parties or on the
court's own motion, the court may refer a contested guardianship
proceeding to mediation.
(b) A mediated settlement agreement is binding on the
parties if the agreement:
(1) provides, in a prominently displayed statement
that is in boldfaced type, in capital letters, or underlined, that
the agreement is not subject to revocation by the parties;
(2) is signed by each party to the agreement; and
(3) is signed by the party's attorney, if any, who is
present at the time the agreement is signed.
(c) If a mediated settlement agreement meets the
requirements of this section, a party is entitled to judgment on the
mediated settlement agreement notwithstanding Rule 11, Texas Rules
of Civil Procedure, or another rule or law.
(d) Notwithstanding Subsections (b) and (c), a court may
decline to enter a judgment on a mediated settlement agreement if
the court finds that the agreement is not in the ward's or proposed
ward's best interests.
SECTION 8. Subchapter A, Chapter 1101, Estates Code, as
effective January 1, 2014, is amended by adding Section 1101.002 to
read as follows:
Sec. 1101.002. CONTENTS OF APPLICATION; CONFIDENTIALITY OF
CERTAIN ADDRESSES. An application filed under Section 1101.001 may
omit the address of a person named in the application if:
(1) the application states that the person is
protected by a protective order issued under Chapter 85, Family
Code;
(2) a copy of the protective order is attached to the
application as an exhibit;
(3) the application states the county in which the
person resides;
(4) the application indicates the place where notice
to or the issuance and service of citation on the person may be made
or sent; and
(5) the application is accompanied by a request for an
order under Section 1051.201 specifying the manner of issuance,
service, and return of citation or notice on the person.
SECTION 9. Section 1101.151, Estates Code, as effective
January 1, 2014, is amended by amending Subsection (b) and adding
Subsection (c) to read as follows:
(b) An order appointing a guardian under this section must
contain findings of fact and specify:
(1) the information required by Section 1101.153(a);
(2) that the guardian has full authority over the
incapacitated person;
(3) if necessary, the amount of funds from the corpus
of the person's estate the court will allow the guardian to spend
for the education and maintenance of the person under Subchapter A,
Chapter 1156;
(4) whether the person is totally incapacitated
because of a mental condition; [and]
(5) that the person does not have the capacity to
operate a motor vehicle and to vote in a public election; and
(6) if it is a guardianship of the person of the ward
or of both the person and the estate of the ward, the rights of the
guardian with respect to the person as specified in Section
1151.051(c)(1).
(c) An order appointing a guardian under this section that
includes the rights of the guardian with respect to the person as
specified in Section 1151.051(c)(1) must also contain the following
prominently displayed statement in boldfaced type, in capital
letters, or underlined:
"NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY
USE REASONABLE EFFORTS TO ENFORCE THE RIGHT OF A GUARDIAN OF THE
PERSON OF A WARD TO HAVE PHYSICAL POSSESSION OF THE WARD OR TO
ESTABLISH THE WARD'S LEGAL DOMICILE AS SPECIFIED IN THIS ORDER. A
PEACE OFFICER WHO RELIES ON THE TERMS OF A COURT ORDER AND THE
OFFICER'S AGENCY ARE ENTITLED TO THE APPLICABLE IMMUNITY AGAINST
ANY CIVIL OR OTHER CLAIM REGARDING THE OFFICER'S GOOD FAITH ACTS
PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING THE
TERMS OF THIS ORDER THAT RELATE TO THE ABOVE-MENTIONED RIGHTS OF THE
COURT-APPOINTED GUARDIAN OF THE PERSON OF THE WARD. ANY PERSON WHO
KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER THAT IS INVALID OR NO
LONGER IN EFFECT COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY
CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS
$10,000."
SECTION 10. Section 1101.152, Estates Code, as effective
January 1, 2014, is amended by adding Subsection (c) to read as
follows:
(c) An order appointing a guardian under this section that
includes the right of the guardian to have physical possession of
the ward or to establish the ward's legal domicile as specified in
Section 1151.051(c)(1) must also contain the following prominently
displayed statement in boldfaced type, in capital letters, or
underlined:
"NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY
USE REASONABLE EFFORTS TO ENFORCE THE RIGHT OF A GUARDIAN OF THE
PERSON OF A WARD TO HAVE PHYSICAL POSSESSION OF THE WARD OR TO
ESTABLISH THE WARD'S LEGAL DOMICILE AS SPECIFIED IN THIS ORDER. A
PEACE OFFICER WHO RELIES ON THE TERMS OF A COURT ORDER AND THE
OFFICER'S AGENCY ARE ENTITLED TO THE APPLICABLE IMMUNITY AGAINST
ANY CIVIL OR OTHER CLAIM REGARDING THE OFFICER'S GOOD FAITH ACTS
PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING THE
TERMS OF THIS ORDER THAT RELATE TO THE ABOVE-MENTIONED RIGHTS OF THE
COURT-APPOINTED GUARDIAN OF THE PERSON OF THE WARD. ANY PERSON WHO
KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER THAT IS INVALID OR NO
LONGER IN EFFECT COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY
CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS
$10,000."
SECTION 11. Section 1102.005(b), Estates Code, as effective
January 1, 2014, is amended to read as follows:
(b) After examining the [ward's or] proposed ward's assets
and determining that the [ward or] proposed ward is unable to pay
for services provided by the guardian ad litem, the court may
authorize compensation from the county treasury.
SECTION 12. Section 1104.303(b), Estates Code, as effective
January 1, 2014, is amended to read as follows:
(b) The application must be:
(1) made to the clerk of the county having venue of the
proceeding for the appointment of a guardian; and
(2) accompanied by a nonrefundable fee of $40 [set by
the clerk in an amount necessary] to cover the cost of administering
this subchapter.
SECTION 13. Section 1104.353(b), Estates Code, as effective
January 1, 2014, is amended to read as follows:
(b) It is presumed to be not in the best interests of a ward
or incapacitated person to appoint as guardian of the ward or
incapacitated person a person who has been finally convicted of:
(1) any sexual offense, including sexual assault,
aggravated sexual assault, and prohibited sexual conduct;
(2) aggravated assault;
(3) injury to a child, elderly individual, or disabled
individual; [or]
(4) abandoning or endangering a child;
(5) terroristic threat; or
(6) continuous violence against the family of the ward
or incapacitated person.
SECTION 14. Subchapter H, Chapter 1104, Estates Code, as
effective January 1, 2014, is amended by adding Section 1104.358 to
read as follows:
Sec. 1104.358. SUBJECT TO PROTECTIVE ORDER FOR FAMILY
VIOLENCE. A person found to have committed family violence who is
subject to a protective order issued under Chapter 85, Family Code,
may not be appointed guardian of a proposed ward or ward who is
protected by the protective order.
SECTION 15. Section 1151.051(c), Estates Code, as effective
January 1, 2014, is amended to read as follows:
(c) A guardian of the person has:
(1) the right to have physical possession of the ward
and to establish the ward's legal domicile;
(2) the duty to provide care, supervision, and
protection for the ward;
(3) the duty to provide the ward with clothing, food,
medical care, and shelter;
(4) the power to consent to medical, psychiatric, and
surgical treatment other than the inpatient psychiatric commitment
of the ward; [and]
(5) on application to and order of the court, the power
to establish a trust in accordance with 42 U.S.C. Section
1396p(d)(4)(B) and direct that the income of the ward as defined by
that section be paid directly to the trust, solely for the purpose
of the ward's eligibility for medical assistance under Chapter 32,
Human Resources Code; and
(6) the power to sign documents necessary or
appropriate to facilitate employment of the ward if:
(A) the guardian was appointed with full
authority over the person of the ward under Section 1101.151; or
(B) the power is specified in the court order
appointing the guardian with limited powers over the person of the
ward under Section 1101.152.
SECTION 16. Sections 1155.052(a) and (c), Estates Code, as
effective January 1, 2014, are amended to read as follows:
(a) Notwithstanding any other provision of this chapter [or
Section 665B], an attorney who serves as guardian and who also
provides legal services in connection with the guardianship is not
entitled to compensation for the guardianship services or payment
of attorney's fees for the legal services from the ward's estate or
other funds available for that purpose unless the attorney files
with the court a detailed description of the services performed
that identifies which of the services provided were guardianship
services and which were legal services.
(c) The court shall set the compensation of an attorney
described by Subsection (a) for the performance of guardianship
services in accordance with Subchapter A. The court shall set
attorney's fees for an attorney described by Subsection (a) for
legal services provided in accordance with Sections 1155.054
[1155.051], 1155.101, and 1155.151 [665B].
SECTION 17. Notwithstanding the transfer of Section 665B,
Texas Probate Code, as amended by Chapters 314 (H.B. 587) and 930
(H.B. 3080), Acts of the 81st Legislature, Regular Session, 2009,
to the Estates Code and redesignation as Section 665B of that code
effective January 1, 2014, by Section 3.01(e), Chapter 823 (H.B.
2759), Acts of the 82nd Legislature, Regular Session, 2011, Section
665B, Texas Probate Code, is transferred to Subchapter B, Chapter
1155, Estates Code, redesignated as Section 1155.054, Estates Code,
and reenacted and amended to read as follows:
Sec. 1155.054 [665B]. PAYMENT OF ATTORNEY'S FEES TO
CERTAIN ATTORNEYS. (a) A court that creates a guardianship or
creates a management trust under Chapter 1301 [Section 867 of this
code] for a ward [under this chapter], on request of a person who
filed an application to be appointed guardian of the proposed ward,
an application for the appointment of another suitable person as
guardian of the proposed ward, or an application for the creation of
the management trust, may authorize the payment of reasonable and
necessary attorney's fees, as determined by the court, in amounts
the court considers equitable and just, to an attorney who
represents the person who filed the application at the application
hearing, regardless of whether the person is appointed the ward's
guardian or whether a management trust is created, from[:
[(1)] available funds of the ward's estate or
management trust, if created, subject to Subsections (b) and (d).
(b) The court may authorize amounts that otherwise would be
paid from the ward's estate or the management trust as provided by
Subsection (a) to instead be paid from the county treasury,[; or
[(2)] subject to Subsection (e), [(c) of this section,
the county treasury] if:
(1) [(A)] the ward's estate or[, if created,]
management trust[,] is insufficient to pay [for] the amounts
[services provided by the attorney]; and
(2) [(B)] funds in the county treasury are budgeted
for that purpose.
(c) [(b)] The court may not authorize attorney's fees under
this section unless the court finds that the applicant acted in good
faith and for just cause in the filing and prosecution of the
application.
(d) If the court finds that a party in a guardianship
proceeding acted in bad faith or without just cause in prosecuting
or objecting to an application in the proceeding, the court may
require the party to reimburse the ward's estate for all or part of
the attorney's fees awarded under this section and shall issue
judgment against the party and in favor of the estate for the amount
of attorney's fees required to be reimbursed to the estate.
(e) [(c)] The court may authorize the payment of attorney's
fees from the county treasury under Subsection (b) [(a) of this
section] only if the court is satisfied that the attorney to whom
the fees will be paid has not received, and is not seeking, payment
for the services described by that subsection from any other
source.
SECTION 18. Section 1155.151, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 1155.151. COSTS IN GUARDIANSHIP [COST OF] PROCEEDING
GENERALLY [IN GUARDIANSHIP MATTER]. (a) In a guardianship
proceeding [Except as provided by Subsection (b)], the court costs
[cost] of the proceeding [in a guardianship matter], including the
cost of the guardians [guardian] ad litem, attorneys ad litem, [or]
court visitor, mental health professionals, and interpreters
appointed under this title, shall be set in an amount the court
considers equitable and just and, except as provided by Subsection
(c), shall be paid out of the guardianship estate, or [the cost of
the proceeding shall be paid out of] the county treasury if the
estate is insufficient to pay the cost, and the court shall issue
the judgment accordingly.
(b) The costs attributable to the services of a person
described by Subsection (a) shall be paid under this section at any
time after the commencement of the proceeding as ordered by the
court.
(c) If the court finds that a party in a guardianship
proceeding acted in bad faith or without just cause in prosecuting
or objecting to an application in the proceeding, the court may
order the party to pay all or part of the costs of the proceeding.
If the party found to be acting in bad faith or without just cause
was required to provide security for the probable costs of the
proceeding under Section 1053.052, the court shall first apply the
amount provided as security as payment for costs ordered by the
court under this subsection. If the amount provided as security is
insufficient to pay the entire amount ordered by the court, the
court shall render judgment in favor of the estate against the party
for the remaining amount. [An applicant for the appointment of a
guardian under this title shall pay the cost of the proceeding if
the court denies the application based on the recommendation of a
court investigator.]
SECTION 19. The heading to Section 1163.005, Estates Code,
as effective January 1, 2014, is amended to read as follows:
Sec. 1163.005. VERIFICATION OF ACCOUNT AND STATEMENT
REGARDING TAXES AND STATUS AS GUARDIAN.
SECTION 20. Section 1163.005(a), Estates Code, as effective
January 1, 2014, is amended to read as follows:
(a) The guardian of the estate shall attach to an account
the guardian's affidavit stating:
(1) that the account contains a correct and complete
statement of the matters to which the account relates;
(2) that the guardian has paid the bond premium for the
next accounting period;
(3) that the guardian has filed all tax returns of the
ward due during the accounting period; [and]
(4) that the guardian has paid all taxes the ward owed
during the accounting period, the amount of the taxes, the date the
guardian paid the taxes, and the name of the governmental entity to
which the guardian paid the taxes; and
(5) if the guardian is a private professional
guardian, a guardianship program, or the Department of Aging and
Disability Services, whether the guardian or an individual
certified under Subchapter C, Chapter 111, Government Code, who is
providing guardianship services to the ward and who is swearing to
the account on the guardian's behalf, is or has been the subject of
an investigation conducted by the Guardianship Certification Board
during the accounting period.
SECTION 21. Section 1163.101(c), Estates Code, as effective
January 1, 2014, is amended to read as follows:
(c) The guardian of the person shall file a sworn affidavit
that contains:
(1) the guardian's current name, address, and
telephone number;
(2) the ward's date of birth and current name, address,
telephone number, and age;
(3) a description of the type of home in which the ward
resides, which shall be described as:
(A) the ward's own home;
(B) a nursing home;
(C) a guardian's home;
(D) a foster home;
(E) a boarding home;
(F) a relative's home, in which case the
description must specify the relative's relationship to the ward;
(G) a hospital or medical facility; or
(H) another type of residence;
(4) statements indicating:
(A) the length of time the ward has resided in the
present home;
(B) the reason for a change in the ward's
residence, if a change in the ward's residence has occurred in the
past year;
(C) the date the guardian most recently saw the
ward;
(D) how frequently the guardian has seen the ward
in the past year;
(E) whether the guardian has possession or
control of the ward's estate;
(F) whether the ward's mental health has
improved, deteriorated, or remained unchanged during the past year,
including a description of the change if a change has occurred;
(G) whether the ward's physical health has
improved, deteriorated, or remained unchanged during the past year,
including a description of the change if a change has occurred;
(H) whether the ward has regular medical care;
and
(I) the ward's treatment or evaluation by any of
the following persons during the past year, including the person's
name and a description of the treatment:
(i) a physician;
(ii) a psychiatrist, psychologist, or other
mental health care provider;
(iii) a dentist;
(iv) a social or other caseworker; or
(v) any other individual who provided
treatment;
(5) a description of the ward's activities during the
past year, including recreational, educational, social, and
occupational activities, or a statement that no activities were
available or that the ward was unable or refused to participate in
activities;
(6) the guardian's evaluation of:
(A) the ward's living arrangements as excellent,
average, or below average, including an explanation if the
conditions are below average;
(B) whether the ward is content or unhappy with
the ward's living arrangements; and
(C) unmet needs of the ward;
(7) a statement indicating whether the guardian's
power should be increased, decreased, or unaltered, including an
explanation if a change is recommended;
(8) a statement indicating that the guardian has paid
the bond premium for the next reporting period; [and]
(9) if the guardian is a private professional
guardian, a guardianship program, or the Department of Aging and
Disability Services, whether the guardian or an individual
certified under Subchapter C, Chapter 111, Government Code, who is
providing guardianship services to the ward and who is swearing to
the affidavit on the guardian's behalf, is or has been the subject
of an investigation conducted by the Guardianship Certification
Board during the preceding year; and
(10) any additional information the guardian desires
to share with the court regarding the ward, including:
(A) whether the guardian has filed for emergency
detention of the ward under Subchapter A, Chapter 573, Health and
Safety Code; and
(B) if applicable, the number of times the
guardian has filed for emergency detention and the dates of the
applications for emergency detention.
SECTION 22. Subchapter C, Chapter 1163, Estates Code, as
effective January 1, 2014, is amended by adding Section 1163.1011
to read as follows:
Sec. 1163.1011. USE OF UNSWORN DECLARATION FOR ELECTRONIC
FILING OF ANNUAL REPORT. (a) A guardian of the person who files the
annual report required by Section 1163.101 electronically with the
court may use an unsworn declaration made as provided by this
section instead of a written sworn declaration or affidavit
required by Section 1163.101.
(b) An unsworn declaration authorized by this section must
be:
(1) in writing; and
(2) subscribed by the person making the declaration as
true under penalty of perjury.
(c) The form of an unsworn declaration authorized by this
section must be substantially as follows:
I, (insert name of guardian of the person), the guardian of
the person for (insert name of ward) in _______ County, Texas,
declare under penalty of perjury that the foregoing is true and
correct.
Executed on (insert date)
________________________
(signature)
(d) An unsworn declaration authorized by Section 132.001,
Civil Practice and Remedies Code, may not be used instead of a
written sworn declaration or affidavit required by Section
1163.101.
SECTION 23. Section 1251.013, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 1251.013. COURT COSTS. If the court appoints a
temporary guardian after the hearing required by Section
1251.006(b), all court costs, including attorney's fees, may be
assessed as provided by Sections 1155.054 and [1155.051,]
1155.151[, and 665B].
SECTION 24. The heading to Section 1301.052, Estates Code,
as effective January 1, 2014, is amended to read as follows:
Sec. 1301.052. VENUE FOR PROCEEDING INVOLVING TRUST FOR AN
ALLEGED INCAPACITATED PERSON.
SECTION 25. Section 1301.054, Estates Code, as effective
January 1, 2014, is amended by amending Subsection (c) and adding
Subsection (c-1) to read as follows:
(c) Except as provided by Subsection (c-1), the [The] court
shall appoint an attorney ad litem and, if necessary, may appoint a
guardian ad litem, to represent the interests of the alleged
incapacitated person in the hearing to determine incapacity under
Subsection (a).
(c-1) If the application for the creation of the trust is
filed by a person who has only a physical disability, the court may,
but is not required to, appoint an attorney ad litem or guardian ad
litem to represent the interests of the person in the hearing to
determine incapacity under Subsection (a).
SECTION 26. Section 1301.055, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 1301.055. AUTHORITY OF COURT TO APPOINT GUARDIAN
INSTEAD OF CREATING TRUST. If, after a hearing under Section
1301.054, the court finds that the person for whom the application
was filed is an incapacitated person but that it is not in the
incapacitated person's best interests for the court to create a
trust under this subchapter for the incapacitated person's estate,
the court may appoint a guardian of the person or estate, or both,
for the incapacitated person without commencing a separate
proceeding for that purpose.
SECTION 27. Sections 1301.057(b), (c), and (d), Estates
Code, as effective January 1, 2014, are amended to read as follows:
(b) Except as provided by Subsection (c), the court shall
appoint a financial institution to serve as trustee of a management
trust, other than a management trust created for a person who has
only a physical disability.
(c) The court may appoint a person or entity described by
Subsection (d) to serve as trustee of a management trust created for
a ward or incapacitated person instead of appointing a financial
institution to serve in that capacity if the court finds:
(1) that the appointment is in the best interests of
the ward or incapacitated person for whom the trust is created; and
(2) if the value of the trust's principal is more than
$150,000, that the applicant for the creation of the trust, after
the exercise of due diligence, has been unable to find a financial
institution in the geographic area willing to serve as trustee.
(d) The following are eligible for appointment as trustee of
a management trust created for a ward or incapacitated person under
Subsection (c):
(1) an individual, including an individual who is
certified as a private professional guardian;
(2) a nonprofit corporation qualified to serve as a
guardian; and
(3) a guardianship program.
SECTION 28. Section 1301.058, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 1301.058. BOND REQUIREMENTS FOR TRUSTEES. (a) The
following serve [A trustee of a management trust that is a corporate
fiduciary serves] without giving a bond in accordance with the
trust terms required by Sections [Section] 1301.101(a)(4) and
(a-1):
(1) a trustee of a management trust that is a corporate
fiduciary; and
(2) any other trustee of a management trust created
for a person who has only a physical disability.
(b) Except as provided by Subsection (a), the [The] court
shall require a person[, other than a corporate fiduciary,] serving
as trustee of a management trust to file with the county clerk a
bond that:
(1) is in an amount equal to the value of the trust's
principal and projected annual income; and
(2) meets the conditions the court determines are
necessary.
SECTION 29. Section 1301.101, Estates Code, as effective
January 1, 2014, is amended to conform to Section 31, Chapter 1085
(S.B. 1196), Acts of the 82nd Legislature, Regular Session, 2011,
and is further amended to read as follows:
Sec. 1301.101. REQUIRED TERMS. (a) Except as provided by
Subsection (c), a management trust created for a ward or
incapacitated person must provide that:
(1) the ward or incapacitated person [for whom the
trust is created] is the sole beneficiary of the trust;
(2) the trustee may disburse an amount of the trust's
principal or income as the trustee determines is necessary to spend
for the health, education, maintenance, or support of the [ward or
incapacitated] person for whom the trust is created;
(3) the trust income that the trustee does not
disburse under Subdivision (2) must be added to the trust
principal;
(4) a trustee that is a corporate fiduciary serves
without giving a bond; and
(5) subject to the court's approval and Subsection
(b), a [the] trustee is entitled to receive reasonable compensation
for services the trustee provides to the [ward or incapacitated]
person for whom the trust is created as the person's trustee.
(a-1) A management trust created for a person who has only a
physical disability must provide that the trustee of the trust:
(1) serves without giving a bond; and
(2) is entitled to receive, without the court's
approval, reasonable compensation for services the trustee
provides to the person as the person's trustee.
(b) A trustee's compensation under Subsection (a)(5) must
be:
(1) paid from the management trust's income,
principal, or both; and
(2) determined, paid, reduced, and eliminated in the
same manner as compensation of a guardian [of an estate] under
Subchapter A, Chapter 1155.
(c) The court creating or modifying a management trust may
omit or modify otherwise applicable terms required by Subsection
(a), (a-1), or (b) [(a)(1) or (2) only] if the court is creating the
trust for a person who has only a physical disability, or if the
court determines that the omission or modification:
(1) is necessary and appropriate for the [ward or
incapacitated] person for whom the trust is created to be eligible
to receive public benefits or assistance under a state or federal
program that is not otherwise available to the [ward or
incapacitated] person; or [and]
(2) is in the [ward's or incapacitated person's] best
interests of the person for whom the trust is created.
SECTION 30. Section 1301.102(a), Estates Code, as effective
January 1, 2014, is amended to conform to Section 31, Chapter 1085
(S.B. 1196), Acts of the 82nd Legislature, Regular Session, 2011,
and is further amended to read as follows:
(a) A management trust created for a ward or incapacitated
person may provide that the trustee make a distribution, payment,
use, or application of trust funds for the health, education,
maintenance, or support of the [ward or incapacitated] person for
whom the trust is created or of another person whom the [ward or
incapacitated] person for whom the trust is created is legally
obligated to support:
(1) as necessary and without the intervention of:
(A) a guardian or other representative of the
ward; or
(B) a representative of the incapacitated
person; and
(2) to:
(A) the ward's guardian;
(B) a person who has physical custody of the
[ward or incapacitated] person for whom the trust is created or of
another person whom the [ward or incapacitated] person for whom the
trust is created is legally obligated to support; or
(C) a person providing a good or service to the
[ward or incapacitated] person for whom the trust is created or to
another person whom the [ward or incapacitated] person for whom the
trust is created is legally obligated to support.
SECTION 31. Section 1301.103, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 1301.103. ENFORCEABILITY OF CERTAIN TERMS. A
provision in a management trust created for a ward or incapacitated
person that relieves a trustee from a duty or liability imposed by
this chapter or Subtitle B, Title 9, Property Code, is enforceable
only if:
(1) the provision is limited to specific facts and
circumstances unique to the property of that trust and is not
applicable generally to the trust; and
(2) the court creating or modifying the trust makes a
specific finding that there is clear and convincing evidence that
the inclusion of the provision is in the best interests of the trust
beneficiary.
SECTION 32. Section 1301.154(a), Estates Code, as effective
January 1, 2014, is amended to read as follows:
(a) The trustee of a management trust created for a ward
shall prepare and file with the court an annual accounting of
transactions in the trust in the same manner and form that is
required of a guardian of the estate under this title.
SECTION 33. Section 1301.202, Estates Code, as effective
January 1, 2014, is amended by adding Subsection (a-1) to read as
follows:
(a-1) For purposes of a proceeding to determine whether to
transfer property from a management trust to a pooled trust
subaccount, the court may, but is not required to, appoint an
attorney ad litem or guardian ad litem to represent the interests of
a person who has only a physical disability for whom the management
trust was created.
SECTION 34. (a) Section 1155.051, Estates Code, as
effective January 1, 2014, is repealed.
(b) Notwithstanding the transfer of Section 631, Texas
Probate Code, to the Estates Code and redesignation as Section 631
of that code effective January 1, 2014, by Section 3.01(d), Chapter
823 (H.B. 2759), Acts of the 82nd Legislature, Regular Session,
2011, Section 631, Texas Probate Code, is repealed.
SECTION 35. (a) Except as otherwise provided by this
section, the changes in law made by this Act apply to:
(1) a guardianship created before, on, or after the
effective date of this Act; and
(2) an application for a guardianship pending on, or
filed on or after, the effective date of this Act.
(b) The changes in law made by this Act to Sections
1301.054, 1301.055, 1301.057(b), (c), and (d), 1301.058, 1301.101,
and 1301.102(a), Estates Code, apply only to an application for the
creation, modification, or termination of a management trust that
is filed on or after the effective date of this Act. An application
described by this subsection that is 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.
(c) The changes in law made by this Act to Sections 1301.103
and 1301.154(a), Estates Code, and by Section 1301.202(a-1),
Estates Code, as added by this Act, apply to a management trust
created before, on, or after the effective date of this Act.
SECTION 36. Section 51.607, Government Code, does not apply
to the change in the amount of a fee made by Section 1104.303(b),
Estates Code, as amended by this Act.
SECTION 37. To the extent of any conflict, this Act prevails
over another Act of the 83rd Legislature, Regular Session, 2013,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 38. Except as otherwise provided by this Act, this
Act takes effect January 1, 2014.