84R10001 MTB-F
By: Schwertner S.B. No. 1224
A BILL TO BE ENTITLED
AN ACT
relating to guardianships for incapacitated persons.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1001.001(b), Estates Code, is amended to
read as follows:
(b) In creating a guardianship that gives a guardian limited
authority over an incapacitated person, the court shall design the
guardianship to encourage the development or maintenance of maximum
self-reliance and independence in the incapacitated person,
including allowing the incapacitated person to make personal
decisions regarding the person's residence.
SECTION 2. Chapter 1002, Estates Code, is amended by adding
Sections 1002.0015 and 1002.031 to read as follows:
Sec. 1002.0015. ALTERNATIVES TO GUARDIANSHIP.
"Alternatives to guardianship" includes the:
(1) execution of a medical power of attorney under
Chapter 166, Health and Safety Code;
(2) appointment of an attorney in fact or agent under a
durable power of attorney as provided by Subtitle P, Title 2;
(3) execution of a declaration for mental health
treatment under Chapter 137, Civil Practices and Remedies Code;
(4) appointment of a representative payee to manage
public benefits;
(5) establishment of a joint bank account;
(6) creation of a management trust under Chapter 1301;
(7) creation of a special needs trust;
(8) designation of a guardian before the need arises
under Subchapter E, Chapter 1104; and
(9) establishment of alternate forms of
decision-making based on person-centered planning.
Sec. 1002.031. SUPPORTS AND SERVICES. "Supports and
services" means available formal and informal resources and
assistance that enable an individual to:
(1) meet the individual's needs for food, clothing, or
shelter;
(2) care for the individual's physical or mental
health;
(3) manage the individual's financial affairs; or
(4) make personal decisions regarding residence,
voting, operating a motor vehicle, and marriage.
SECTION 3. Section 1002.015, Estates Code, is amended to
read as follows:
Sec. 1002.015. GUARDIANSHIP PROCEEDING. The term
"guardianship proceeding" means a matter or proceeding related to a
guardianship or any other matter covered by this title, including:
(1) the appointment of a guardian of a minor or other
incapacitated person, including an incapacitated adult for whom
another court obtained continuing, exclusive jurisdiction in a suit
affecting the parent-child relationship when the person was a
child;
(2) an application, petition, or motion regarding
guardianship or a substitute for [an alternative to] guardianship
under this title;
(3) a mental health action; and
(4) an application, petition, or motion regarding a
trust created under Chapter 1301.
SECTION 4. Section 1054.004, Estates Code, is amended by
amending Subsection (a) and adding Subsections (c) and (d) to read
as follows:
(a) An attorney ad litem appointed under Section 1054.001
shall interview the proposed ward within a reasonable time before
the hearing in the proceeding for the appointment of a
guardian. To the greatest extent possible, the attorney shall
discuss with the proposed ward:
(1) the law and facts of the case;
(2) the proposed ward's legal options regarding
disposition of the case; [and]
(3) the grounds on which guardianship is sought; and
(4) whether alternatives to guardianship would meet
the needs of the proposed ward and avoid the need for the
appointment of a guardian.
(c) Before the hearing, the attorney ad litem shall
investigate whether:
(1) a guardianship is necessary for the proposed ward;
and
(2) if the attorney ad litem determines that a
guardianship is necessary, specific powers or duties of the
guardian should be limited if the proposed ward receives supports
and services.
(d) If the attorney ad litem determines that a guardianship
is necessary, the attorney must certify to the court that the
guardianship is necessary and reasonable efforts have been made to
explore alternatives to guardianship and supports and services
available to the proposed ward that would avoid the need for the
appointment of a guardian.
SECTION 5. Section 1054.054, Estates Code, is amended by
adding Subsections (c) and (d) to read as follows:
(c) The guardian ad litem shall:
(1) investigate whether a guardianship is necessary
for the proposed ward; and
(2) evaluate alternatives to guardianship and
supports and services available to the proposed ward that would
avoid the need for appointment of a guardian.
(d) The information gathered by the guardian ad litem under
Subsection (c) is subject to examination by the court.
SECTION 6. Sections 1054.201(a) and (b), Estates Code, are
amended to read as follows:
(a) An attorney for an applicant for guardianship and a [A]
court-appointed attorney in a guardianship proceeding, including
an attorney ad litem, must be certified by the State Bar of Texas,
or a person or other entity designated by the state bar, as having
successfully completed a course of study in guardianship law and
procedure sponsored by the state bar or the state bar's designee.
(b) The State Bar of Texas shall require four [three] hours
of credit for certification under this subchapter, including one
hour on alternatives to guardianship and supports and services
available to proposed wards.
SECTION 7. Section 1101.001(b), Estates Code, is amended to
read as follows:
(b) The application must be sworn to by the applicant and
state:
(1) the proposed ward's name, sex, date of birth, and
address;
(2) the name, relationship, and address of the person
the applicant seeks to have appointed as guardian;
(3) whether guardianship of the person or estate, or
both, is sought;
(3-a) whether alternatives to guardianship and
available supports and services to avoid guardianship were
considered;
(3-b) whether any alternatives to guardianship and
supports and services available to the proposed ward considered are
feasible and would avoid the need for a guardianship;
(4) the nature and degree of the alleged incapacity,
the specific areas of protection and assistance requested, and the
limitation or termination of rights requested to be included in the
court's order of appointment, including a termination of:
(A) the right of a proposed ward who is 18 years
of age or older to vote in a public election; [and]
(B) the proposed ward's eligibility to hold or
obtain a license to operate a motor vehicle under Chapter 521,
Transportation Code; and
(C) the right of a proposed ward to make personal
decisions regarding residence;
(5) the facts requiring the appointment of a guardian;
(6) the interest of the applicant in the appointment
of a guardian;
(7) the nature and description of any kind of
guardianship existing for the proposed ward in any other state;
(8) the name and address of any person or institution
having the care and custody of the proposed ward;
(9) the approximate value and description of the
proposed ward's property, including any compensation, pension,
insurance, or allowance to which the proposed ward may be entitled;
(10) the name and address of any person whom the
applicant knows to hold a power of attorney signed by the proposed
ward and a description of the type of power of attorney;
(11) for a proposed ward who is a minor, the following
information if known by the applicant:
(A) the name of each of the proposed ward's
parents and either the parent's address or that the parent is
deceased;
(B) the name and age of each of the proposed
ward's siblings, if any, and either the sibling's address or that
the sibling is deceased; and
(C) if each of the proposed ward's parents and
adult siblings are deceased, the names and addresses of the
proposed ward's other living relatives who are related to the
proposed ward within the third degree by consanguinity and who are
adults;
(12) for a proposed ward who is a minor, whether the
minor was the subject of a legal or conservatorship proceeding in
the preceding two years and, if so:
(A) the court involved;
(B) the nature of the proceeding; and
(C) any final disposition of the proceeding;
(13) for a proposed ward who is an adult, the following
information if known by the applicant:
(A) the name of the proposed ward's spouse, if
any, and either the spouse's address or that the spouse is deceased;
(B) the name of each of the proposed ward's
parents and either the parent's address or that the parent is
deceased;
(C) the name and age of each of the proposed
ward's siblings, if any, and either the sibling's address or that
the sibling is deceased;
(D) the name and age of each of the proposed
ward's children, if any, and either the child's address or that the
child is deceased; and
(E) if there is no living spouse, parent, adult
sibling, or adult child of the proposed ward, the names and
addresses of the proposed ward's other living relatives who are
related to the proposed ward within the third degree by
consanguinity and who are adults;
(14) facts showing that the court has venue of the
proceeding; and
(15) if applicable, that the person whom the applicant
seeks to have appointed as a guardian is a private professional
guardian who is certified under Subchapter C, Chapter 155,
Government Code, and has complied with the requirements of
Subchapter G, Chapter 1104.
SECTION 8. Section 1101.101, Estates Code, is amended by
amending Subsection (a) and adding Subsection (c) to read as
follows:
(a) Before appointing a guardian for a proposed ward, the
court must:
(1) find by clear and convincing evidence that:
(A) the proposed ward is an incapacitated person;
(B) it is in the proposed ward's best interest to
have the court appoint a person as the proposed ward's guardian;
[and]
(C) the proposed ward's rights or property will
be protected by the appointment of a guardian;
(D) alternatives to guardianship that would
avoid the need for the appointment of a guardian have been
considered and determined not to be feasible; and
(E) supports and services available to the
proposed ward that would avoid the need for the appointment of a
guardian have been considered and determined not to be feasible;
and
(2) find by a preponderance of the evidence that:
(A) the court has venue of the case;
(B) the person to be appointed guardian is
eligible to act as guardian and is entitled to appointment, or, if
no eligible person entitled to appointment applies, the person
appointed is a proper person to act as guardian;
(C) if a guardian is appointed for a minor, the
guardianship is not created for the primary purpose of enabling the
minor to establish residency for enrollment in a school or school
district for which the minor is not otherwise eligible for
enrollment; and
(D) the proposed ward:
(i) is totally without capacity as provided
by this title to care for himself or herself and to manage his or her
property; or
(ii) lacks the capacity to do some, but not
all, of the tasks necessary to care for himself or herself or to
manage his or her property.
(c) A finding under Subsection (a)(2)(D)(ii) must
specifically state whether the proposed ward lacks the capacity,
with or without supports and services, to make personal decisions
regarding residence, voting, operating a motor vehicle, and
marriage.
SECTION 9. Section 1101.103(b), Estates Code, is amended to
read as follows:
(b) The letter or certificate must:
(1) describe the nature, degree, and severity of the
proposed ward's incapacity, including any functional deficits
regarding the proposed ward's ability to:
(A) handle business and managerial matters;
(B) manage financial matters;
(C) operate a motor vehicle;
(D) make personal decisions regarding residence,
voting, and marriage; and
(E) consent to medical, dental, psychological,
or psychiatric treatment;
(2) in providing a description under Subdivision (1)
regarding the proposed ward's ability to operate a motor vehicle
and make personal decisions regarding voting, state whether in the
physician's opinion the proposed ward:
(A) has the mental capacity to vote in a public
election; and
(B) has the ability to safely operate a motor
vehicle;
(3) provide an evaluation of the proposed ward's
physical condition and mental functioning [function] and summarize
the proposed ward's medical history if reasonably available;
(3-a) in providing an evaluation under Subdivision
(3), state whether improvement in the proposed ward's physical
condition and mental functioning is possible and, if so, state the
period after which the proposed ward should be reevaluated to
determine whether a guardianship continues to be necessary;
(4) state how or in what manner the proposed ward's
ability to make or communicate responsible decisions concerning
himself or herself is affected by the proposed ward's physical or
mental health, including the proposed ward's ability to:
(A) understand or communicate;
(B) recognize familiar objects and individuals;
(C) solve problems [perform simple
calculations];
(D) reason logically; and
(E) administer to daily life activities with and
without supports and services;
(5) state whether any current medication affects the
proposed ward's demeanor or the proposed ward's ability to
participate fully in a court proceeding;
(6) describe the precise physical and mental
conditions underlying a diagnosis of a mental disability, and state
whether the proposed ward would benefit from supports and services
that would allow the individual to live in the least restrictive
setting;
(6-a) state whether a guardianship is necessary for
the proposed ward and, if so, whether specific powers or duties of
the guardian should be limited if the proposed ward receives
supports and services; and
(7) include any other information required by the
court.
SECTION 10. Sections 1101.151(a) and (b), Estates Code, are
amended to read as follows:
(a) If it is found that the proposed ward is totally without
capacity to care for himself or herself, manage his or her property,
operate a motor vehicle, make personal decisions regarding
residence, and vote in a public election, the court may appoint a
guardian of the proposed ward's person or estate, or both, with full
authority over the incapacitated person except as provided by law.
(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;
(5) that the person does not have the capacity to
operate a motor vehicle, make personal decisions regarding
residence, 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).
SECTION 11. Sections 1101.152(a) and (b), Estates Code, are
amended to read as follows:
(a) If it is found that the proposed ward lacks the capacity
to do some, but not all, of the tasks necessary to care for himself
or herself or to manage his or her property with or without supports
and services, the court may appoint a guardian with limited powers
and permit the proposed ward to care for himself or herself,
including making personal decisions regarding residence, or to
manage his or her property commensurate with the proposed ward's
ability.
(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) the specific powers, limitations, or duties of the
guardian with respect to the person's care or the management of the
person's property by the guardian;
(2-a) the specific rights and powers retained by the
person:
(A) with the necessity for supports and services;
and
(B) without the necessity for supports and
services;
(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; and
(4) whether the person is incapacitated because of a
mental condition and, if so, whether the person:
(A) retains the right to make personal decisions
regarding residence or vote in a public election; or
(B) maintains eligibility to hold or obtain a
license to operate a motor vehicle under Chapter 521,
Transportation Code.
SECTION 12. Section 1101.153, Estates Code, is amended by
adding Subsection (a-1) to read as follows:
(a-1) If the letter or certificate under Section
1101.103(b)(3-a) stated that improvement in the ward's physical
condition or mental functioning is possible and specified a period
of less than a year after which the ward should be reevaluated to
determine continued necessity for the guardianship, an order
appointing a guardian must include the date by which the guardian
must submit to the court an updated letter or certificate
containing the requirements of Section 1101.103(b).
SECTION 13. Section 1104.002, Estates Code, is amended to
read as follows:
Sec. 1104.002. PREFERENCE OF INCAPACITATED PERSON. Before
appointing a guardian, the court shall make a reasonable effort to
consider the incapacitated person's preference of the person to be
appointed guardian and, to the extent consistent with other
provisions of this title, shall give due consideration to the
preference indicated by the incapacitated person, regardless of
whether the person has designated by declaration a guardian before
the need arises under Subchapter E.
SECTION 14. Section 1151.051, Estates Code, is amended by
adding Subsection (e) to read as follows:
(e) Notwithstanding Subsection (c)(1) and except in cases
of emergency, a guardian of the person of a ward may only place the
ward in a more restrictive care facility if:
(1) the guardian files an application with the court;
(2) the guardian provides notice to any persons who
have requested notice; and
(3) the placement is authorized by court order.
SECTION 15. Sections 1202.001(b) and (c), Estates Code, are
amended to read as follows:
(b) A guardianship shall be settled and closed when the
ward:
(1) dies and, if the ward was married, the ward's
spouse qualifies as survivor in community;
(2) is found by the court to have full capacity, with
or without supports and services, to care for himself or herself and
to manage the ward's property;
(3) is no longer a minor; or
(4) no longer must have a guardian appointed to
receive funds due the ward from any governmental source.
(c) Except for an order issued under Section 1101.153(a-1),
an [An] order appointing a guardian or a successor guardian may
specify a period of not more than one year during which a petition
for adjudication that the ward no longer requires the guardianship
may not be filed without special leave.
SECTION 16. Section 1202.051, Estates Code, is amended to
read as follows:
Sec. 1202.051. APPLICATION AUTHORIZED. A ward or any
person interested in the ward's welfare may file a written
application with the court for an order:
(1) finding that the ward is no longer an
incapacitated person and ordering the settlement and closing of the
guardianship;
(2) finding that the ward lacks the capacity, with or
without supports and services, to do some or all of the tasks
necessary to provide food, clothing, or shelter for himself or
herself, to care for the ward's own physical health, or to manage
the ward's own financial affairs and granting additional powers or
duties to the guardian; or
(3) finding that the ward has the capacity, with or
without supports and services, to do some, but not all, of the tasks
necessary to provide food, clothing, or shelter for himself or
herself, to care for the ward's own physical health, or to manage
the ward's own financial affairs and:
(A) limiting the guardian's powers or duties; and
(B) permitting the ward to care for himself or
herself, make personal decisions regarding residence, or [to]
manage the ward's own financial affairs commensurate with the
ward's ability, with or without supports and services.
SECTION 17. Section 1202.151(a), Estates Code, is amended
to read as follows:
(a) Except as provided by Section 1202.201, at a hearing on
an application filed under Section 1202.051, the court shall
consider only evidence regarding the ward's mental or physical
capacity at the time of the hearing that is relevant to the complete
restoration of the ward's capacity or modification of the ward's
guardianship, including whether:
(1) the guardianship is necessary; and
(2) specific powers or duties of the guardian should
be limited if the ward receives supports and services.
SECTION 18. Section 1202.152(b), Estates Code, is amended
to read as follows:
(b) A letter or certificate presented under Subsection (a)
must:
(1) describe the nature and degree of incapacity,
including the medical history if reasonably available, or state
that, in the physician's opinion, the ward has the capacity, with or
without supports and services, to:
(A) provide food, clothing, and shelter for
himself or herself;
(B) care for the ward's own physical health; and
(C) manage the ward's financial affairs;
(2) provide a medical prognosis specifying the
estimated severity of any incapacity;
(3) state how or in what manner the ward's ability to
make or communicate responsible decisions concerning himself or
herself is affected by the ward's physical or mental health;
(4) state whether any current medication affects the
ward's demeanor or the ward's ability to participate fully in a
court proceeding;
(5) describe the precise physical and mental
conditions underlying a diagnosis of senility, if applicable; and
(6) include any other information required by the
court.
SECTION 19. Section 1202.153(c), Estates Code, is amended
to read as follows:
(c) Before limiting the powers granted to or duties required
to be performed by the guardian under an application filed under
Section 1202.051, the court must find by a preponderance of the
evidence that the current nature and degree of the ward's
incapacity, with or without supports and services, warrants a
modification of the guardianship and that some of the ward's rights
need to be restored, with or without supports and services.
SECTION 20. Section 1202.154(a), Estates Code, is amended
to read as follows:
(a) A court order entered with respect to an application
filed under Section 1202.051 to completely restore a ward's
capacity or modify a ward's guardianship must state:
(1) the guardian's name;
(2) the ward's name; [and]
(3) whether the type of guardianship being addressed
at the proceeding is a:
(A) guardianship of the person;
(B) guardianship of the estate; or
(C) guardianship of both the person and the
estate; and
(4) if applicable, any necessary supports and services
for the restoration of the ward's capacity or modification of the
guardianship.
SECTION 21. Section 1202.156, Estates Code, is amended to
read as follows:
Sec. 1202.156. ADDITIONAL REQUIREMENTS FOR ORDER MODIFYING
GUARDIANSHIP. If the court finds that a guardian's powers or
duties should be expanded or limited, the order modifying the
guardianship must contain findings of fact and specify, in addition
to the information required by Section 1202.154:
(1) the specific powers, limitations, or duties of the
guardian with respect to the care of the ward or the management of
the ward's property, as appropriate;
(2) the specific areas of protection and assistance to
be provided to the ward;
(3) any limitation of the ward's rights;
(4) if the ward's incapacity resulted from a mental
condition, whether the ward retains the right to vote and make
personal decisions regarding residence; and
(5) that the clerk shall modify the letters of
guardianship to the extent applicable to conform to the order.
SECTION 22. The heading to Subtitle I, Title 3, Estates
Code, is amended to read as follows:
SUBTITLE I. OTHER SPECIAL PROCEEDINGS AND SUBSTITUTES FOR
[ALTERNATIVES TO] GUARDIANSHIP
SECTION 23. (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) Sections 1054.004 and 1054.054, Estates Code, as
amended by this Act, apply only to a guardianship proceeding for
which a court has appointed a guardian ad litem or attorney ad litem
to represent the interests of a proposed ward on or after the
effective date of this Act.
(c) Sections 1054.201, 1101.101, 1101.103, 1101.151,
1101.152, and 1101.153, Estates Code, as amended by this Act, apply
only to a guardianship proceeding filed on or after the effective
date of this Act. A guardianship proceeding filed before the
effective date of this Act is governed by the law in effect on the
date the proceeding was filed, and the former law is continued in
effect for that purpose.
(d) Section 1101.001, Estates Code, as amended by this Act,
applies only to an application for the appointment of a guardian
filed on or after the effective date of this Act. An application
for the appointment of a guardian 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.
(e) Section 1202.051, Estates Code, as amended by this Act,
applies only to an application for the restoration of a ward's
capacity or the modification of a ward's guardianship that is filed
on or after the effective date of this Act. An application for the
restoration of a ward's capacity or the modification of a ward's
guardianship 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.
(f) Sections 1202.151, 1202.152, 1202.153, 1202.154, and
1202.156, Estates Code, as amended by this Act, apply only to a
proceeding for the restoration of a ward's capacity or the
modification of a ward's guardianship that is filed on or after the
effective date of this Act. An application for the restoration of a
ward's capacity or the modification of a ward's guardianship 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.
SECTION 24. This Act takes effect September 1, 2015.