Texas 2017 - 85th Regular

Texas House Bill HB3901 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	85R7236 KFF-F
2	2	By: Metcalf H.B. No. 3901
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to parental administrations for certain adults with
8	8	intellectual disabilities and the prosecution of a related criminal
9	9	offense.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 1002.0015, Estates Code, is amended to
12	12	read as follows:
13	13	Sec. 1002.0015. ALTERNATIVES TO GUARDIANSHIP.
14	14	"Alternatives to guardianship" includes the:
15	15	(1) execution of a medical power of attorney under
16	16	Chapter 166, Health and Safety Code;
17	17	(2) appointment of an attorney in fact or agent under a
18	18	durable power of attorney as provided by Subtitle P, Title 2;
19	19	(3) execution of a declaration for mental health
20	20	treatment under Chapter 137, Civil Practice and Remedies Code;
21	21	(4) appointment of a representative payee to manage
22	22	public benefits;
23	23	(5) establishment of a joint bank account;
24	24	(6) creation of a management trust under Chapter 1301;
25	25	(7) creation of a special needs trust;
26	26	(8) designation of a guardian before the need arises
27	27	under Subchapter E, Chapter 1104; [and]
28	28	(9) establishment of alternate forms of
29	29	decision-making based on person-centered planning; and
30	30	(10) appointment of a parental administrator under
31	31	Chapter 1359.
32	32	SECTION 2. Section 1002.002, Estates Code, is amended to
33	33	read as follows:
34	34	Sec. 1002.002. ATTORNEY AD LITEM. "Attorney ad litem"
35	35	means an attorney appointed by a court to represent and advocate on
36	36	behalf of:
37	37	(1) a proposed ward, an incapacitated person, an
38	38	unborn person, or another person described by Section 1054.007 in a
39	39	guardianship proceeding; or
40	40	(2) a proposed incapacitated adult, as defined by
41	41	Section 1359.001, in a proceeding for a parental administration
42	42	under Chapter 1359.
43	43	SECTION 3. Subchapter A, Chapter 1202, Estates Code, is
44	44	amended by adding Section 1202.004 to read as follows:
45	45	Sec. 1202.004. TERMINATION OF GUARDIANSHIP OF THE PERSON IF
46	46	ELIGIBLE FOR PARENTAL ADMINISTRATION. On the application of a
47	47	parent, as defined by Section 1359.001, a court with jurisdiction
48	48	over a guardianship of the person may terminate the guardianship on
49	49	a finding that the ward qualifies as an incapacitated adult under
50	50	Chapter 1359 and appoint a parental administrator of the
51	51	incapacitated adult under that chapter.
52	52	SECTION 4. Subtitle I, Title 3, Estates Code, is amended by
53	53	adding Chapter 1359 to read as follows:
54	54	CHAPTER 1359. PARENTAL ADMINISTRATION
55	55	SUBCHAPTER A. GENERAL PROVISIONS RELATING TO APPOINTMENT OF
56	56	PARENTAL ADMINISTRATOR
57	57	Sec. 1359.001. DEFINITIONS. (a) In this chapter:
58	58	(1) "Incapacitated adult" means a person who is 18
59	59	years of age or older or will be 18 years of age within 180 days of
60	60	the date of an application under this chapter who, because of a
61	61	mental condition, is substantially unable to:
62	62	(A) provide food, clothing, or shelter for
63	63	himself or herself;
64	64	(B) care for the person's own physical health; or
65	65	(C) manage the person's own financial affairs.
66	66	(2) "Intellectual disability" has the meaning
67	67	assigned by Section 591.003, Health and Safety Code.
68	68	(3) "Parent" has the meaning assigned by Section
69	69	1002.022, except that the term includes a person who was appointed
70	70	the conservator of a child under Chapter 153, Family Code.
71	71	(4) "Proposed incapacitated adult" means a person
72	72	alleged in a parental administration proceeding under this chapter
73	73	to be an incapacitated adult.
74	74	(b) To the extent a definition of a term provided by this
75	75	chapter conflicts with the definition of that term provided by
76	76	Chapter 1002, the definition provided by this chapter prevails in
77	77	this chapter.
78	78	Sec. 1359.002. APPLICABILITY. This chapter applies only
79	79	to:
80	80	(1) an incapacitated adult whose incapacity has
81	81	existed since the person was a minor; and
82	82	(2) the parent of an incapacitated adult.
83	83	SUBCHAPTER B. APPOINTMENT OF PARENTAL ADMINISTRATOR
84	84	Sec. 1359.051. PARENTAL ADMINISTRATOR. The parent of a
85	85	proposed incapacitated adult may in accordance with this chapter
86	86	seek appointment as the parental administrator of that adult with
87	87	the rights and duties granted under Section 1359.061.
88	88	Sec. 1359.052. APPLICATION; VENUE. (a) A parent of a
89	89	proposed incapacitated adult may apply to the court for the
90	90	appointment of a parental administrator.
91	91	(b) Subject to Section 1359.053, the application must be
92	92	under oath and in writing and must include:
93	93	(1) the proposed incapacitated adult's name, date of
94	94	birth, and address;
95	95	(2) the name, relationship, and address of the person
96	96	the applicant seeks to have appointed as parental administrator;
97	97	(3) a description of the nature of the proposed
98	98	incapacitated adult's alleged incapacity and a statement that the
99	99	incapacity existed during minority;
100	100	(4) a statement that the proposed incapacitated adult
101	101	is totally without capacity to care for himself or herself;
102	102	(5) a statement of the facts requiring the appointment
103	103	of a parental administrator;
104	104	(6) a statement of the nature and description of any
105	105	existing guardianship of the proposed incapacitated adult;
106	106	(7) a statement as to whether the proposed
107	107	incapacitated adult was the subject of a conservatorship proceeding
108	108	and, if so, the name of the conservator;
109	109	(8) the name of the proposed incapacitated adult's
110	110	spouse, if any, and the spouse's address or a statement that the
111	111	spouse is deceased;
112	112	(9) the names of the proposed incapacitated adult's
113	113	parents and, for each parent, the parent's address or a statement
114	114	that the parent is deceased;
115	115	(10) the name and age of each of the proposed
116	116	incapacitated adult's siblings, if any, and, for each sibling, the
117	117	sibling's address or a statement that the sibling is deceased; and
118	118	(11) a statement of facts showing that the proposed
119	119	incapacitated adult is a resident of the county in which the
120	120	proceeding is brought.
121	121	(c) Venue for a proceeding for the appointment of a parental
122	122	administrator is the same as venue for a proceeding for the
123	123	appointment of a guardian.
124	124	Sec. 1359.053. CONFIDENTIALITY OF CERTAIN ADDRESSES. An
125	125	application filed under Section 1359.052 may omit the address of a
126	126	person named in the application if:
127	127	(1) the application states that the person is
128	128	protected by a protective order issued under Chapter 85, Family
129	129	Code;
130	130	(2) a copy of the protective order is attached to the
131	131	application as an exhibit;
132	132	(3) the application states the county in which the
133	133	person resides;
134	134	(4) the application indicates the place where notice
135	135	to or the issuance and service of citation on the person may be made
136	136	or sent; and
137	137	(5) the application is accompanied by a request for an
138	138	order under Section 1051.201 specifying the manner of issuance,
139	139	service, and return of citation or notice on the person.
140	140	Sec. 1359.054. APPOINTMENT OF ATTORNEY AD LITEM IN
141	141	PROCEEDING FOR APPOINTMENT OF PARENTAL ADMINISTRATOR. (a) In a
142	142	proceeding for the appointment of a parental administrator, the
143	143	court shall appoint an attorney ad litem to represent the proposed
144	144	incapacitated adult's interests.
145	145	(b) The attorney ad litem must have the certification
146	146	required by Section 1054.201.
147	147	(c) The provisions of Chapter 1054 applicable to the term of
148	148	appointment, right to access records, and duties of an attorney ad
149	149	litem appointed in a guardianship proceeding apply to an attorney
150	150	ad litem appointed under this section in a proceeding for the
151	151	appointment of a parental administrator.
152	152	Sec. 1359.055. DETERMINATION OF INCAPACITY: EXAMINATIONS.
153	153	(a) The court may not grant an application for the appointment of a
154	154	parental administrator for a proposed incapacitated adult unless
155	155	the applicant presents to the court:
156	156	(1) a written letter or certificate from a physician
157	157	licensed in this state that:
158	158	(A) is dated not earlier than the 120th day
159	159	before the date the application is filed;
160	160	(B) is based on an examination the physician
161	161	performed not earlier than the 120th day before the date the
162	162	application is filed; and
163	163	(C) complies with Subsection (b); or
164	164	(2) a written letter or certificate that:
165	165	(A) shows that not earlier than 24 months before
166	166	the date of a hearing on the application:
167	167	(i) the proposed incapacitated adult has
168	168	been examined by a physician or psychologist licensed in this state
169	169	or certified by the Health and Human Services Commission to perform
170	170	the examination, in accordance with rules of the executive
171	171	commissioner of the Health and Human Services Commission governing
172	172	examinations of that kind, and the physician's or psychologist's
173	173	written findings and recommendations include a determination of an
174	174	intellectual disability; or
175	175	(ii) a physician or psychologist licensed
176	176	in this state or certified by the Health and Human Services
177	177	Commission to perform examinations described by Subparagraph (i)
178	178	updated or endorsed in writing a prior determination of an
179	179	intellectual disability for the proposed incapacitated adult made
180	180	by a physician or psychologist licensed in this state or certified
181	181	by the commission; and
182	182	(B) complies with Subsection (b).
183	183	(b) A letter or certificate under Subsection (a)(1) or (2)
184	184	must:
185	185	(1) describe the nature, degree, and severity of the
186	186	proposed incapacitated adult's incapacity, including any
187	187	functional deficits regarding the proposed incapacitated adult's
188	188	ability to consent to medical, dental, psychological, or
189	189	psychiatric treatment;
190	190	(2) provide an evaluation of the proposed
191	191	incapacitated adult's physical condition and mental functioning
192	192	and summarize the proposed incapacitated adult's medical history if
193	193	reasonably available, including whether the incapacitated adult's
194	194	incapacity existed when the incapacitated adult was a minor;
195	195	(3) state how or in what manner the proposed
196	196	incapacitated adult's ability to make or communicate responsible
197	197	decisions concerning himself or herself is affected by the proposed
198	198	incapacitated adult's physical or mental health, including the
199	199	proposed incapacitated adult's ability to:
200	200	(A) understand or communicate;
201	201	(B) recognize familiar objects and individuals;
202	202	(C) solve problems;
203	203	(D) reason logically; and
204	204	(E) administer to daily life activities with and
205	205	without supports and services;
206	206	(4) state whether any current medication affects the
207	207	proposed incapacitated adult's demeanor or the proposed
208	208	incapacitated adult's ability to participate fully in a court
209	209	proceeding;
210	210	(5) describe the precise physical and mental
211	211	conditions underlying a diagnosis of an intellectual disability;
212	212	(6) state whether a parental administration is
213	213	necessary for the proposed incapacitated adult; and
214	214	(7) include any other information required by the
215	215	court.
216	216	(c) If the court determines it is necessary, the court may
217	217	appoint a physician to examine the proposed incapacitated adult.
218	218	The court must make a determination with respect to the necessity
219	219	for a physician's examination of the proposed incapacitated adult
220	220	at a hearing held for that purpose. Not later than the fourth day
221	221	before the date of the hearing, the applicant shall give to the
222	222	proposed incapacitated adult and the proposed incapacitated
223	223	adult's attorney ad litem written notice specifying the purpose and
224	224	the date and time of the hearing.
225	225	(d) A physician who examines the proposed incapacitated
226	226	adult for purposes of Subsection (a)(1) shall file with the court
227	227	and provide to the attorney ad litem appointed to represent the
228	228	proposed incapacitated adult a written letter or certificate from
229	229	the physician that complies with the requirements of Subsections
230	230	(a)(1) and (b).
231	231	Sec. 1359.056. SERVICE AND NOTICE. (a) The citation and
232	232	the application filed under this chapter shall be personally served
233	233	on the proposed incapacitated adult by a sheriff, constable, or
234	234	other person authorized by law to serve process.
235	235	(b) Notice shall be given by certified mail, return receipt
236	236	requested, to:
237	237	(1) a guardian of the proposed incapacitated adult, if
238	238	applicable, unless the guardian is the applicant; and
239	239	(2) each other person named under Section
240	240	1359.052(b)(8), (9), or (10).
241	241	(c) The applicant shall file with the court:
242	242	(1) a copy of any notice required by Subsection (b) and
243	243	the proof of delivery of the notice; and
244	244	(2) for each notice, an affidavit sworn to by the
245	245	applicant or the applicant's attorney stating:
246	246	(A) that the notice was mailed as required by
247	247	Subsection (b); and
248	248	(B) the name of the person to whom the notice was
249	249	mailed, if the person's name is not shown on the proof of delivery.
250	250	(d) A person who is entitled to receive notice under
251	251	Subsection (b) may, by writing filed with the clerk, waive the
252	252	receipt of notice either in person or through an attorney ad litem.
253	253	Sec. 1359.057. HEARING. (a) At a hearing for the
254	254	appointment of a parental administrator, the court shall inquire
255	255	into:
256	256	(1) the ability of the proposed incapacitated adult
257	257	to:
258	258	(A) feed, clothe, and shelter himself or herself;
259	259	and
260	260	(B) care for his or her own physical health;
261	261	(2) whether the incapacity existed when the proposed
262	262	incapacitated adult was a minor; and
263	263	(3) the parental status of the applicant seeking to be
264	264	appointed parental administrator.
265	265	(b) A proposed incapacitated adult must be present at the
266	266	hearing unless the court, on the record or in the order, determines
267	267	that a personal appearance is not necessary.
268	268	(c) The court may close the hearing at the request of the
269	269	proposed incapacitated adult.
270	270	(d) A proposed incapacitated adult is entitled to a jury
271	271	trial on timely request.
272	272	Sec. 1359.058. USE OF RECORDS. Current medical,
273	273	psychological, and intellectual testing records are a sufficient
274	274	basis for an appointment of a parental administrator, but the
275	275	findings and recommendations contained in those records are not
276	276	binding on the court.
277	277	Sec. 1359.059. FINDINGS AND PROOF REQUIRED. Before
278	278	appointing a parental administrator for a proposed incapacitated
279	279	adult, the court must find by a preponderance of the evidence that:
280	280	(1) the proposed incapacitated adult is an
281	281	incapacitated adult;
282	282	(2) the incapacitated adult's incapacity existed when
283	283	the incapacitated adult was a minor; and
284	284	(3) the person to be appointed parental administrator
285	285	is suitable to act as parental administrator.
286	286	Sec. 1359.060. APPOINTMENT OF PARENTAL ADMINISTRATOR.
287	287	After making the findings required by Section 1359.059, the court
288	288	may appoint a parent of the person found to be an incapacitated
289	289	adult as parental administrator.
290	290	Sec. 1359.061. RIGHTS AND DUTIES OF PARENTAL ADMINISTRATOR.
291	291	(a) A parental administrator has the following rights and duties:
292	292	(1) the right to have physical possession of the
293	293	incapacitated adult and to establish the incapacitated adult's
294	294	legal domicile;
295	295	(2) the duty to provide care, supervision, and
296	296	protection for the incapacitated adult;
297	297	(3) the duty to provide the incapacitated adult with
298	298	clothing, food, medical care, and shelter;
299	299	(4) the power to consent to medical, psychiatric, and
300	300	surgical treatment of the incapacitated adult;
301	301	(5) the power to establish a trust in accordance with
302	302	42 U.S.C. Section 1396p(d)(4)(B) and direct that the income of the
303	303	incapacitated adult as defined by that section be paid directly to
304	304	the trust, solely for the purpose of the incapacitated adult's
305	305	eligibility for medical assistance under Chapter 32, Human
306	306	Resources Code; and
307	307	(6) the power to sign documents necessary or
308	308	appropriate to facilitate employment of the incapacitated adult.
309	309	(b) With respect to the rights and duties described under
310	310	Subsection (a), a parental administrator has the same authority as
311	311	a guardian of the person under law.
312	312	SUBCHAPTER C. REPORTING
313	313	Sec. 1359.101. REPORT OF PARENTAL ADMINISTRATOR. At any
314	314	time after a parental administrator is appointed, the court, on its
315	315	own motion or on the motion of a person interested in the welfare of
316	316	the incapacitated adult and for good cause shown, may order the
317	317	parental administrator to submit to the court a report on the
318	318	condition of the incapacitated adult. The parental administrator
319	319	must include in the report a statement regarding:
320	320	(1) whether the incapacitated adult is receiving
321	321	residential care in a public or private residential care facility;
322	322	and
323	323	(2) if the incapacitated adult is receiving care in a
324	324	residential care facility, the necessity for continued care in the
325	325	facility.
326	326	SUBCHAPTER D. INVESTIGATION OF ALLEGED ABUSE, NEGLECT, OR
327	327	EXPLOITATION CONCERNING INCAPACITATED ADULT
328	328	Sec. 1359.151. INTERFERENCE WITH INVESTIGATION OR SERVICES
329	329	PROHIBITED. A parental administrator may not interfere with:
330	330	(1) an investigation by the Department of Family and
331	331	Protective Services, another state agency, or a law enforcement
332	332	agency of alleged abuse, neglect, or exploitation of the
333	333	incapacitated adult; or
334	334	(2) the provision of protective services by the
335	335	Department of Family and Protective Services or another state
336	336	agency to the incapacitated adult.
337	337	Sec. 1359.152. REPORT TO COURT OF INVESTIGATION OF ALLEGED
338	338	ABUSE, NEGLECT, OR EXPLOITATION. Subject to rules adopted under
339	339	Section 48.101, Human Resources Code, the Department of Family and
340	340	Protective Services or another state agency that conducts an
341	341	investigation of alleged abuse, neglect, or exploitation of an
342	342	incapacitated adult for whom a parental administrator is appointed
343	343	shall report the results of the investigation to the court with
344	344	jurisdiction of the parental administration.
345	345	SUBCHAPTER E. REMOVAL OR TERMINATION OF POWERS OF PARENTAL
346	346	ADMINISTRATOR
347	347	Sec. 1359.201. GROUNDS FOR REMOVAL OF PARENTAL
348	348	ADMINISTRATOR. A court may remove a parental administrator if the
349	349	parental administrator:
350	350	(1) fails to comply with a court order for a report
351	351	under Section 1359.101;
352	352	(2) is proven to have been guilty of gross misconduct
353	353	or gross mismanagement in the performance of duties as parental
354	354	administrator;
355	355	(3) becomes an incapacitated person;
356	356	(4) is convicted of an offense and subsequently
357	357	confined or imprisoned; or
358	358	(5) for any other reason becomes unable to properly
359	359	perform the parental administrator's duties.
360	360	Sec. 1359.202. TERMINATION OF PARENTAL ADMINISTRATOR'S
361	361	RIGHTS AND POWERS ON CONVERSION TO GUARDIANSHIP. The rights and
362	362	powers of a parental administrator terminate when a court orders
363	363	the parental administration converted into a guardianship of the
364	364	person.
365	365	Sec. 1359.203. PROCEDURE FOR REMOVAL OF PARENTAL
366	366	ADMINISTRATOR OR CONVERSION OF PARENTAL ADMINISTRATION TO
367	367	GUARDIANSHIP. (a) The court on the court's own motion or on the
368	368	application of any person may initiate a proceeding to:
369	369	(1) subject to Subsection (b), remove a parental
370	370	administrator on proof of a ground for removal described by Section
371	371	1359.201; or
372	372	(2) subject to Subsection (c), convert a parental
373	373	administration for an incapacitated adult to a guardianship of the
374	374	person for the incapacitated adult.
375	375	(b) In a proceeding for the removal of a parental
376	376	administrator initiated under Subsection (a)(1), the court shall
377	377	have the parental administrator cited by personal service to appear
378	378	before the court. The citation must state:
379	379	(1) the time and place of a hearing on the matter at
380	380	which the parental administrator is to appear; and
381	381	(2) the alleged ground for removal of the parental
382	382	administrator.
383	383	(c) Notice of a proceeding to convert a parental
384	384	administration and appoint a guardian of the person initiated under
385	385	Subsection (a)(2) must be provided in the manner required by
386	386	Chapter 1051.
387	387	(d) Notwithstanding the requirements of Section 1101.104,
388	388	an application for the conversion of a parental administration and
389	389	the appointment of a guardian of the person does not require a
390	390	written letter or certificate from a physician licensed in this
391	391	state.
392	392	SECTION 5. The heading to Section 25.10, Penal Code, is
393	393	amended to read as follows:
394	394	Sec. 25.10. INTERFERENCE WITH CERTAIN POSSESSORY RIGHTS [OF
395	395	GUARDIAN OF THE PERSON].
396	396	SECTION 6. Sections 25.10(a) and (b), Penal Code, are
397	397	amended to read as follows:
398	398	(a) In this section:
399	399	(1) "Incapacitated adult" has the meaning assigned by
400	400	Section 1359.001, Estates Code.
401	401	(1-a) "Possessory right" means:
402	402	(A) the right of a guardian of the person to have
403	403	physical possession of a ward and to establish the ward's legal
404	404	domicile, as provided by Section 1151.051 [767(1)], Estates [Texas
405	405	Probate] Code; or
406	406	(B) the right of a parental administrator to have
407	407	physical possession of an incapacitated adult and to establish the
408	408	incapacitated adult's legal domicile, as provided by Section
409	409	1359.061, Estates Code.
410	410	(2) "Ward" has the meaning assigned by Section
411	411	1002.030 [601], Estates [Texas Probate] Code.
412	412	(b) A person commits an offense if the person takes,
413	413	retains, or conceals a ward or incapacitated adult when the person
414	414	knows that the person's taking, retention, or concealment
415	415	interferes with a possessory right with respect to the ward or
416	416	incapacitated adult.
417	417	SECTION 7. To the extent of any conflict, this Act prevails
418	418	over another Act of the 85th Legislature, Regular Session, 2017,
419	419	relating to nonsubstantive additions to and corrections in enacted
420	420	codes.
421	421	SECTION 8. The changes in law made by this Act to Section
422	422	25.10, Penal Code, apply only to an offense committed on or after
423	423	the effective date of this Act. An offense committed before the
424	424	effective date of this Act is governed by the law in effect on the
425	425	date the offense was committed, and the former law is continued in
426	426	effect for that purpose. For purposes of this section, an offense
427	427	was committed before the effective date of this Act if any element
428	428	of the offense occurred before that date.
429	429	SECTION 9. This Act takes effect September 1, 2017.