85R7236 KFF-F
By: Metcalf H.B. No. 3901
A BILL TO BE ENTITLED
AN ACT
relating to parental administrations for certain adults with
intellectual disabilities and the prosecution of a related criminal
offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1002.0015, Estates Code, is amended 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 Practice 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; and
(10) appointment of a parental administrator under
Chapter 1359.
SECTION 2. Section 1002.002, Estates Code, 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:
(1) a proposed ward, an incapacitated person, an
unborn person, or another person described by Section 1054.007 in a
guardianship proceeding; or
(2) a proposed incapacitated adult, as defined by
Section 1359.001, in a proceeding for a parental administration
under Chapter 1359.
SECTION 3. Subchapter A, Chapter 1202, Estates Code, is
amended by adding Section 1202.004 to read as follows:
Sec. 1202.004. TERMINATION OF GUARDIANSHIP OF THE PERSON IF
ELIGIBLE FOR PARENTAL ADMINISTRATION. On the application of a
parent, as defined by Section 1359.001, a court with jurisdiction
over a guardianship of the person may terminate the guardianship on
a finding that the ward qualifies as an incapacitated adult under
Chapter 1359 and appoint a parental administrator of the
incapacitated adult under that chapter.
SECTION 4. Subtitle I, Title 3, Estates Code, is amended by
adding Chapter 1359 to read as follows:
CHAPTER 1359. PARENTAL ADMINISTRATION
SUBCHAPTER A. GENERAL PROVISIONS RELATING TO APPOINTMENT OF
PARENTAL ADMINISTRATOR
Sec. 1359.001. DEFINITIONS. (a) In this chapter:
(1) "Incapacitated adult" means a person who is 18
years of age or older or will be 18 years of age within 180 days of
the date of an application under this chapter who, because of a
mental condition, is substantially unable to:
(A) provide food, clothing, or shelter for
himself or herself;
(B) care for the person's own physical health; or
(C) manage the person's own financial affairs.
(2) "Intellectual disability" has the meaning
assigned by Section 591.003, Health and Safety Code.
(3) "Parent" has the meaning assigned by Section
1002.022, except that the term includes a person who was appointed
the conservator of a child under Chapter 153, Family Code.
(4) "Proposed incapacitated adult" means a person
alleged in a parental administration proceeding under this chapter
to be an incapacitated adult.
(b) To the extent a definition of a term provided by this
chapter conflicts with the definition of that term provided by
Chapter 1002, the definition provided by this chapter prevails in
this chapter.
Sec. 1359.002. APPLICABILITY. This chapter applies only
to:
(1) an incapacitated adult whose incapacity has
existed since the person was a minor; and
(2) the parent of an incapacitated adult.
SUBCHAPTER B. APPOINTMENT OF PARENTAL ADMINISTRATOR
Sec. 1359.051. PARENTAL ADMINISTRATOR. The parent of a
proposed incapacitated adult may in accordance with this chapter
seek appointment as the parental administrator of that adult with
the rights and duties granted under Section 1359.061.
Sec. 1359.052. APPLICATION; VENUE. (a) A parent of a
proposed incapacitated adult may apply to the court for the
appointment of a parental administrator.
(b) Subject to Section 1359.053, the application must be
under oath and in writing and must include:
(1) the proposed incapacitated adult's name, date of
birth, and address;
(2) the name, relationship, and address of the person
the applicant seeks to have appointed as parental administrator;
(3) a description of the nature of the proposed
incapacitated adult's alleged incapacity and a statement that the
incapacity existed during minority;
(4) a statement that the proposed incapacitated adult
is totally without capacity to care for himself or herself;
(5) a statement of the facts requiring the appointment
of a parental administrator;
(6) a statement of the nature and description of any
existing guardianship of the proposed incapacitated adult;
(7) a statement as to whether the proposed
incapacitated adult was the subject of a conservatorship proceeding
and, if so, the name of the conservator;
(8) the name of the proposed incapacitated adult's
spouse, if any, and the spouse's address or a statement that the
spouse is deceased;
(9) the names of the proposed incapacitated adult's
parents and, for each parent, the parent's address or a statement
that the parent is deceased;
(10) the name and age of each of the proposed
incapacitated adult's siblings, if any, and, for each sibling, the
sibling's address or a statement that the sibling is deceased; and
(11) a statement of facts showing that the proposed
incapacitated adult is a resident of the county in which the
proceeding is brought.
(c) Venue for a proceeding for the appointment of a parental
administrator is the same as venue for a proceeding for the
appointment of a guardian.
Sec. 1359.053. CONFIDENTIALITY OF CERTAIN ADDRESSES. An
application filed under Section 1359.052 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.
Sec. 1359.054. APPOINTMENT OF ATTORNEY AD LITEM IN
PROCEEDING FOR APPOINTMENT OF PARENTAL ADMINISTRATOR. (a) In a
proceeding for the appointment of a parental administrator, the
court shall appoint an attorney ad litem to represent the proposed
incapacitated adult's interests.
(b) The attorney ad litem must have the certification
required by Section 1054.201.
(c) The provisions of Chapter 1054 applicable to the term of
appointment, right to access records, and duties of an attorney ad
litem appointed in a guardianship proceeding apply to an attorney
ad litem appointed under this section in a proceeding for the
appointment of a parental administrator.
Sec. 1359.055. DETERMINATION OF INCAPACITY: EXAMINATIONS.
(a) The court may not grant an application for the appointment of a
parental administrator for a proposed incapacitated adult unless
the applicant presents to the court:
(1) a written letter or certificate from a physician
licensed in this state that:
(A) is dated not earlier than the 120th day
before the date the application is filed;
(B) is based on an examination the physician
performed not earlier than the 120th day before the date the
application is filed; and
(C) complies with Subsection (b); or
(2) a written letter or certificate that:
(A) shows that not earlier than 24 months before
the date of a hearing on the application:
(i) the proposed incapacitated adult has
been examined by a physician or psychologist licensed in this state
or certified by the Health and Human Services Commission to perform
the examination, in accordance with rules of the executive
commissioner of the Health and Human Services Commission governing
examinations of that kind, and the physician's or psychologist's
written findings and recommendations include a determination of an
intellectual disability; or
(ii) a physician or psychologist licensed
in this state or certified by the Health and Human Services
Commission to perform examinations described by Subparagraph (i)
updated or endorsed in writing a prior determination of an
intellectual disability for the proposed incapacitated adult made
by a physician or psychologist licensed in this state or certified
by the commission; and
(B) complies with Subsection (b).
(b) A letter or certificate under Subsection (a)(1) or (2)
must:
(1) describe the nature, degree, and severity of the
proposed incapacitated adult's incapacity, including any
functional deficits regarding the proposed incapacitated adult's
ability to consent to medical, dental, psychological, or
psychiatric treatment;
(2) provide an evaluation of the proposed
incapacitated adult's physical condition and mental functioning
and summarize the proposed incapacitated adult's medical history if
reasonably available, including whether the incapacitated adult's
incapacity existed when the incapacitated adult was a minor;
(3) state how or in what manner the proposed
incapacitated adult's ability to make or communicate responsible
decisions concerning himself or herself is affected by the proposed
incapacitated adult's physical or mental health, including the
proposed incapacitated adult's ability to:
(A) understand or communicate;
(B) recognize familiar objects and individuals;
(C) solve problems;
(D) reason logically; and
(E) administer to daily life activities with and
without supports and services;
(4) state whether any current medication affects the
proposed incapacitated adult's demeanor or the proposed
incapacitated adult's ability to participate fully in a court
proceeding;
(5) describe the precise physical and mental
conditions underlying a diagnosis of an intellectual disability;
(6) state whether a parental administration is
necessary for the proposed incapacitated adult; and
(7) include any other information required by the
court.
(c) If the court determines it is necessary, the court may
appoint a physician to examine the proposed incapacitated adult.
The court must make a determination with respect to the necessity
for a physician's examination of the proposed incapacitated adult
at a hearing held for that purpose. Not later than the fourth day
before the date of the hearing, the applicant shall give to the
proposed incapacitated adult and the proposed incapacitated
adult's attorney ad litem written notice specifying the purpose and
the date and time of the hearing.
(d) A physician who examines the proposed incapacitated
adult for purposes of Subsection (a)(1) shall file with the court
and provide to the attorney ad litem appointed to represent the
proposed incapacitated adult a written letter or certificate from
the physician that complies with the requirements of Subsections
(a)(1) and (b).
Sec. 1359.056. SERVICE AND NOTICE. (a) The citation and
the application filed under this chapter shall be personally served
on the proposed incapacitated adult by a sheriff, constable, or
other person authorized by law to serve process.
(b) Notice shall be given by certified mail, return receipt
requested, to:
(1) a guardian of the proposed incapacitated adult, if
applicable, unless the guardian is the applicant; and
(2) each other person named under Section
1359.052(b)(8), (9), or (10).
(c) The applicant shall file with the court:
(1) a copy of any notice required by Subsection (b) and
the proof of delivery of the notice; and
(2) for each notice, an affidavit sworn to by the
applicant or the applicant's attorney stating:
(A) that the notice was mailed as required by
Subsection (b); and
(B) the name of the person to whom the notice was
mailed, if the person's name is not shown on the proof of delivery.
(d) A person who is entitled to receive notice under
Subsection (b) may, by writing filed with the clerk, waive the
receipt of notice either in person or through an attorney ad litem.
Sec. 1359.057. HEARING. (a) At a hearing for the
appointment of a parental administrator, the court shall inquire
into:
(1) the ability of the proposed incapacitated adult
to:
(A) feed, clothe, and shelter himself or herself;
and
(B) care for his or her own physical health;
(2) whether the incapacity existed when the proposed
incapacitated adult was a minor; and
(3) the parental status of the applicant seeking to be
appointed parental administrator.
(b) A proposed incapacitated adult must be present at the
hearing unless the court, on the record or in the order, determines
that a personal appearance is not necessary.
(c) The court may close the hearing at the request of the
proposed incapacitated adult.
(d) A proposed incapacitated adult is entitled to a jury
trial on timely request.
Sec. 1359.058. USE OF RECORDS. Current medical,
psychological, and intellectual testing records are a sufficient
basis for an appointment of a parental administrator, but the
findings and recommendations contained in those records are not
binding on the court.
Sec. 1359.059. FINDINGS AND PROOF REQUIRED. Before
appointing a parental administrator for a proposed incapacitated
adult, the court must find by a preponderance of the evidence that:
(1) the proposed incapacitated adult is an
incapacitated adult;
(2) the incapacitated adult's incapacity existed when
the incapacitated adult was a minor; and
(3) the person to be appointed parental administrator
is suitable to act as parental administrator.
Sec. 1359.060. APPOINTMENT OF PARENTAL ADMINISTRATOR.
After making the findings required by Section 1359.059, the court
may appoint a parent of the person found to be an incapacitated
adult as parental administrator.
Sec. 1359.061. RIGHTS AND DUTIES OF PARENTAL ADMINISTRATOR.
(a) A parental administrator has the following rights and duties:
(1) the right to have physical possession of the
incapacitated adult and to establish the incapacitated adult's
legal domicile;
(2) the duty to provide care, supervision, and
protection for the incapacitated adult;
(3) the duty to provide the incapacitated adult with
clothing, food, medical care, and shelter;
(4) the power to consent to medical, psychiatric, and
surgical treatment of the incapacitated adult;
(5) 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
incapacitated adult as defined by that section be paid directly to
the trust, solely for the purpose of the incapacitated adult'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 incapacitated adult.
(b) With respect to the rights and duties described under
Subsection (a), a parental administrator has the same authority as
a guardian of the person under law.
SUBCHAPTER C. REPORTING
Sec. 1359.101. REPORT OF PARENTAL ADMINISTRATOR. At any
time after a parental administrator is appointed, the court, on its
own motion or on the motion of a person interested in the welfare of
the incapacitated adult and for good cause shown, may order the
parental administrator to submit to the court a report on the
condition of the incapacitated adult. The parental administrator
must include in the report a statement regarding:
(1) whether the incapacitated adult is receiving
residential care in a public or private residential care facility;
and
(2) if the incapacitated adult is receiving care in a
residential care facility, the necessity for continued care in the
facility.
SUBCHAPTER D. INVESTIGATION OF ALLEGED ABUSE, NEGLECT, OR
EXPLOITATION CONCERNING INCAPACITATED ADULT
Sec. 1359.151. INTERFERENCE WITH INVESTIGATION OR SERVICES
PROHIBITED. A parental administrator may not interfere with:
(1) an investigation by the Department of Family and
Protective Services, another state agency, or a law enforcement
agency of alleged abuse, neglect, or exploitation of the
incapacitated adult; or
(2) the provision of protective services by the
Department of Family and Protective Services or another state
agency to the incapacitated adult.
Sec. 1359.152. REPORT TO COURT OF INVESTIGATION OF ALLEGED
ABUSE, NEGLECT, OR EXPLOITATION. Subject to rules adopted under
Section 48.101, Human Resources Code, the Department of Family and
Protective Services or another state agency that conducts an
investigation of alleged abuse, neglect, or exploitation of an
incapacitated adult for whom a parental administrator is appointed
shall report the results of the investigation to the court with
jurisdiction of the parental administration.
SUBCHAPTER E. REMOVAL OR TERMINATION OF POWERS OF PARENTAL
ADMINISTRATOR
Sec. 1359.201. GROUNDS FOR REMOVAL OF PARENTAL
ADMINISTRATOR. A court may remove a parental administrator if the
parental administrator:
(1) fails to comply with a court order for a report
under Section 1359.101;
(2) is proven to have been guilty of gross misconduct
or gross mismanagement in the performance of duties as parental
administrator;
(3) becomes an incapacitated person;
(4) is convicted of an offense and subsequently
confined or imprisoned; or
(5) for any other reason becomes unable to properly
perform the parental administrator's duties.
Sec. 1359.202. TERMINATION OF PARENTAL ADMINISTRATOR'S
RIGHTS AND POWERS ON CONVERSION TO GUARDIANSHIP. The rights and
powers of a parental administrator terminate when a court orders
the parental administration converted into a guardianship of the
person.
Sec. 1359.203. PROCEDURE FOR REMOVAL OF PARENTAL
ADMINISTRATOR OR CONVERSION OF PARENTAL ADMINISTRATION TO
GUARDIANSHIP. (a) The court on the court's own motion or on the
application of any person may initiate a proceeding to:
(1) subject to Subsection (b), remove a parental
administrator on proof of a ground for removal described by Section
1359.201; or
(2) subject to Subsection (c), convert a parental
administration for an incapacitated adult to a guardianship of the
person for the incapacitated adult.
(b) In a proceeding for the removal of a parental
administrator initiated under Subsection (a)(1), the court shall
have the parental administrator cited by personal service to appear
before the court. The citation must state:
(1) the time and place of a hearing on the matter at
which the parental administrator is to appear; and
(2) the alleged ground for removal of the parental
administrator.
(c) Notice of a proceeding to convert a parental
administration and appoint a guardian of the person initiated under
Subsection (a)(2) must be provided in the manner required by
Chapter 1051.
(d) Notwithstanding the requirements of Section 1101.104,
an application for the conversion of a parental administration and
the appointment of a guardian of the person does not require a
written letter or certificate from a physician licensed in this
state.
SECTION 5. The heading to Section 25.10, Penal Code, is
amended to read as follows:
Sec. 25.10. INTERFERENCE WITH CERTAIN POSSESSORY RIGHTS [OF
GUARDIAN OF THE PERSON].
SECTION 6. Sections 25.10(a) and (b), Penal Code, are
amended to read as follows:
(a) In this section:
(1) "Incapacitated adult" has the meaning assigned by
Section 1359.001, Estates Code.
(1-a) "Possessory right" means:
(A) the right of a guardian of the person to have
physical possession of a ward and to establish the ward's legal
domicile, as provided by Section 1151.051 [767(1)], Estates [Texas
Probate] Code; or
(B) the right of a parental administrator to have
physical possession of an incapacitated adult and to establish the
incapacitated adult's legal domicile, as provided by Section
1359.061, Estates Code.
(2) "Ward" has the meaning assigned by Section
1002.030 [601], Estates [Texas Probate] Code.
(b) A person commits an offense if the person takes,
retains, or conceals a ward or incapacitated adult when the person
knows that the person's taking, retention, or concealment
interferes with a possessory right with respect to the ward or
incapacitated adult.
SECTION 7. To the extent of any conflict, this Act prevails
over another Act of the 85th Legislature, Regular Session, 2017,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 8. The changes in law made by this Act to Section
25.10, Penal Code, apply only to an offense committed on or after
the effective date of this Act. An offense committed before the
effective date of this Act is governed by the law in effect on the
date the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this section, an offense
was committed before the effective date of this Act if any element
of the offense occurred before that date.
SECTION 9. This Act takes effect September 1, 2017.