By: Zaffirini S.B. No. 1325
(In the Senate - Filed March 6, 2017; March 14, 2017, read
first time and referred to Committee on State Affairs;
April 3, 2017, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 9, Nays 0; April 3, 2017,
sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 1325 By: Zaffirini
A BILL TO BE ENTITLED
AN ACT
relating to authorizing counties to establish public guardians to
serve as guardians for certain incapacitated persons.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 1002, Estates Code, is amended by adding
Sections 1002.0215 and 1002.0265 to read as follows:
Sec. 1002.0215. OFFICE OF PUBLIC GUARDIAN. "Office of
public guardian" means an office of public guardian established by
the commissioners court of a county under Subchapter G-1, Chapter
1104.
Sec. 1002.0265. PUBLIC GUARDIAN. "Public guardian" means a
person:
(1) appointed to administer an office of public
guardian by the commissioners court of a county under Subchapter
G-1, Chapter 1104; or
(2) with which one or more counties enter into an
agreement under Section 1104.327(a)(2) or (d).
SECTION 2. Section 1104.251(a), Estates Code, is amended to
read as follows:
(a) An individual must be certified under Subchapter C,
Chapter 155, Government Code, if the individual:
(1) is a private professional guardian;
(2) will represent the interests of a ward as a
guardian on behalf of a private professional guardian;
(3) is providing guardianship services to a ward of a
guardianship program on the program's behalf, except as provided by
Section 1104.254; [or]
(4) is an employee of the Health and Human Services
Commission [Department of Aging and Disability Services] providing
guardianship services to a ward of the commission;
(5) is a public guardian; or
(6) will represent the interests of a ward as a
guardian on behalf of a public guardian [department].
SECTION 3. Chapter 1104, Estates Code, is amended by adding
Subchapter G-1 to read as follows:
SUBCHAPTER G-1. PUBLIC GUARDIANS
Sec. 1104.326. DEFINITION. In this subchapter, unless the
context otherwise requires, "office" means an office of public
guardian established under this subchapter.
Sec. 1104.327. ESTABLISHMENT OF OFFICES; PUBLIC GUARDIANS.
(a) The commissioners court of a county by order may:
(1) create an office of public guardian to provide
guardianship services to incapacitated persons described by
Section 1104.334; or
(2) enter into an agreement with a person operating a
nonprofit guardianship program or private professional
guardianship program located in the county or in an adjacent county
to act as a public guardian by providing guardianship services to
incapacitated persons described by Section 1104.334.
(b) Subject to Subsection (c) and Section 1104.328, the
commissioners court of a county shall appoint an individual as
public guardian to administer the office of public guardian
established under Subsection (a)(1) and may employ or authorize the
public guardian to employ personnel necessary to perform the duties
of the office, including personnel who will represent the interests
of a ward as a guardian on behalf of the office if approved by the
commissioners court.
(c) The commissioners court of a county may appoint an
individual as public guardian under Subsection (b) on a part-time
basis with appropriate compensation if:
(1) the commissioners court determines a full-time
appointment does not serve the needs of the county; and
(2) the individual who is appointed on a part-time
basis is not employed in or does not hold another position that
presents a conflict of interest.
(d) The commissioners courts of two or more counties may
collectively enter into an agreement:
(1) to create and fund an office of public guardian for
purposes of Subsection (a)(1) and to appoint the same individual as
public guardian to that office under Subsection (b); or
(2) with a person operating a guardianship program
described by Subsection (a)(2) to serve as a public guardian for
purposes of that subdivision.
(e) An individual appointed as public guardian under
Subsection (b) serves a term of five years.
Sec. 1104.328. QUALIFICATIONS OF PUBLIC GUARDIAN. To be
appointed as public guardian under Section 1104.327(b), an
individual must:
(1) be a licensed attorney or be certified under
Subchapter C, Chapter 155, Government Code; and
(2) have demonstrable guardianship experience.
Sec. 1104.329. CONFLICT OF INTEREST. (a) Except as
provided by Subsection (b), an office or public guardian must be
independent from providers of services to wards and proposed wards
and may not directly provide housing, medical, legal, or other
direct, non-surrogate decision-making services to a ward or
proposed ward, unless approved by the court.
(b) An office or public guardian may provide money
management services described by Section 531.125, Government Code,
or other representative payee services to a ward or proposed ward.
Sec. 1104.330. COMPENSATION. A person appointed or acting
as public guardian under Section 1104.327 shall receive
compensation as set by the commissioners court and is not entitled
to compensation under Subchapter A, Chapter 1155, unless approved
by the court.
Sec. 1104.331. BOND REQUIREMENT. (a) A public guardian
shall file with the court clerk a general bond in an amount fixed by
the commissioners court payable to the county and issued by a surety
company approved by the county judge. The bond must be conditioned
on the faithful performance by the person of the person's duties
and, if the public guardian administers an office, the office's
duties.
(b) The bond required by this section satisfies any bond
required under Chapter 1105.
Sec. 1104.332. VACANCY. If an individual appointed as
public guardian under Section 1104.327(b) vacates the position, the
commissioners court shall appoint, subject to Section 1104.328, an
individual to serve as public guardian for the unexpired term.
Sec. 1104.333. POWERS AND DUTIES. (a) An office or public
guardian shall:
(1) if applicable, evaluate the financial status of a
proposed ward to determine whether the proposed ward is eligible to
have the office or public guardian appointed guardian of the ward
under Section 1104.334(a)(2)(A); and
(2) serve as guardian of the person or of the estate of
a ward, or both, on appointment by a court in accordance with the
requirements of this title.
(b) In connection with a financial evaluation under
Subsection (a)(1) and on the request of an office or public
guardian, a court with jurisdiction over the guardianship
proceeding may order the release of public and private records,
including otherwise confidential records, to the office or public
guardian.
(c) Notwithstanding Section 552.261, Government Code, a
state agency may not charge an office or public guardian for
providing the office or public guardian with a copy of public
information requested from the agency by the office or public
guardian.
Sec. 1104.334. APPOINTMENT OF OFFICE OR PUBLIC GUARDIAN AS
GUARDIAN. (a) In accordance with applicable law, including
Subchapter C, Chapter 1101, a court may appoint an office or public
guardian to serve as guardian of the person or of the estate of a
ward, or both, if:
(1) on the date the guardianship application is filed,
the ward resides in or is located in the county served by the office
or public guardian; and
(2) the court finds that:
(A) the ward does not have sufficient assets or
other resources to pay a private professional guardian to serve as
the ward's guardian;
(B) the ward does not have a family member,
friend, or other suitable person or entity willing and able to serve
as the ward's guardian; or
(C) the appointment of an office or public
guardian is in the ward's best interest.
(b) For purposes of Subsection (a)(2)(A), the determination
of a ward's ability to pay a private professional guardian is
dependent on:
(1) the nature, extent, and liquidity of the ward's
assets;
(2) the ward's disposable net income, including income
of a recipient of medical assistance that is used to pay expenses
under Section 1155.202(a);
(3) the nature of the guardianship;
(4) the type, duration, and complexity of services
required by the ward; and
(5) additional, foreseeable expenses.
(c) The number of appointments of an office under this
section may not exceed 35 wards for each guardian representing the
interests of wards on behalf of the office.
(d) If each guardian representing the interests of wards on
behalf of an office reaches the limitation provided by Subsection
(c), the office shall immediately give notice to the courts.
Sec. 1104.335. CONFIDENTIALITY AND DISCLOSURE OF
INFORMATION. (a) All files, reports, records, communications, or
working papers used or developed by an office or public guardian in
the performance of duties relating to a financial evaluation under
Section 1104.333(a)(1) or the provision of guardianship services
are confidential and not subject to disclosure under Chapter 552,
Government Code.
(b) Confidential information may be disclosed only for a
purpose consistent with this subchapter, as required by other state
or federal law, or as necessary to enable an office or public
guardian to exercise the powers and duties as guardian of the person
or of the estate of a ward, or both.
(c) A court on its own motion or on the motion of an
interested person may order disclosure of confidential information
only if:
(1) a hearing on the motion is conducted;
(2) notice of the hearing is served on the office or
public guardian and each interested person; and
(3) the court determines after the hearing and an in
camera review of the information that disclosure is essential to
the administration of justice and will not endanger the life or
safety of any individual who:
(A) is being assessed for guardianship services;
(B) is a ward of the office or public guardian; or
(C) provides services to a ward of the office or
public guardian.
(d) The Office of Court Administration of the Texas Judicial
System shall establish policies and procedures for the exchange of
information between offices, public guardians, and other
appropriate governmental entities, as necessary for offices,
public guardians, and governmental entities to properly execute
their respective duties and responsibilities relating to
guardianship services or other needed services for a ward. An
exchange of information under this subsection does not constitute a
release for purposes of waiving the confidentiality of the
information exchanged.
(e) To the extent consistent with policies and procedures
adopted by an office or public guardian, the office or public
guardian on request may release confidential information in the
record of an individual who is a former ward of the office or public
guardian to:
(1) the individual;
(2) the individual's guardian; or
(3) an executor or administrator of the individual's
estate.
(f) Before releasing confidential information under
Subsection (e), an office or public guardian shall edit the
information to protect the identity of any individual whose life or
safety may be endangered by the release. A release of information
under Subsection (e) does not constitute a release for purposes of
waiving the confidentiality of the information released.
Sec. 1104.336. CERTAIN ADMINISTRATIVE COSTS. (a) If an
office or public guardian is appointed guardian of the person or of
the estate of a ward, or both, the administrative costs of the
guardianship services provided to the ward may not be charged to the
ward's estate unless the court determines, subject to Subsection
(b), that the ward is financially able to pay all or part of the
costs.
(b) A court shall measure a ward's ability to pay for costs
under Subsection (a) by whether the ward has sufficient assets or
other resources to pay a private professional guardian to serve as
the ward's guardian in accordance with Section 1104.334(b).
Sec. 1104.337. OFFICE OF COURT ADMINISTRATION OF THE TEXAS
JUDICIAL SYSTEM; REPORT. (a) Not later than December 1 of each
even-numbered year, the Office of Court Administration of the Texas
Judicial System shall submit a report to the governor and the
legislature that contains an evaluation of public guardians
established under this subchapter, including the establishment and
operation of offices of public guardians under this subchapter and
the provision of guardianship services by the offices. The report
must include:
(1) an analysis of costs and offsetting savings or
other benefits to the state as a result of the establishment and
operation of offices and public guardians under this subchapter;
and
(2) recommendations for legislation, if any.
(b) If it is cost-effective and feasible, the Office of
Court Administration of the Texas Judicial System may contract with
an appropriate research or public policy entity with expertise in
gerontology, disabilities, and public administration to conduct
the analysis described by Subsection (a)(1).
Sec. 1104.338. RULES. The supreme court, in consultation
with the Office of Court Administration of the Texas Judicial
System and the presiding judge of the statutory probate courts
elected under Section 25.0022, Government Code, shall adopt rules
necessary to implement this subchapter.
SECTION 4. Section 1104.402(a), Estates Code, is amended to
read as follows:
(a) Except as provided by Section 1104.403, 1104.404, or
1104.406(a), the clerk of the county having venue of the proceeding
for the appointment of a guardian shall obtain criminal history
record information that is maintained by the Department of Public
Safety or the Federal Bureau of Investigation identification
division relating to:
(1) a private professional guardian;
(2) each person who represents or plans to represent
the interests of a ward as a guardian on behalf of the private
professional guardian;
(3) each person employed by a private professional
guardian who will:
(A) have personal contact with a ward or proposed
ward;
(B) exercise control over and manage a ward's
estate; or
(C) perform any duties with respect to the
management of a ward's estate;
(4) each person employed by or volunteering or
contracting with a guardianship program to provide guardianship
services to a ward of the program on the program's behalf; [or]
(5) a public guardian appointed under Section
1104.327(b);
(6) each person who represents or plans to represent
the interests of a ward as a guardian on behalf of an office of
public guardian;
(7) each person employed by an office of public
guardian who will:
(A) have personal contact with a ward or proposed
ward;
(B) exercise control over and manage a ward's
estate; or
(C) perform any duties with respect to the
management of a ward's estate; or
(8) any other person proposed to serve as a guardian
under this title, including a proposed temporary guardian and a
proposed successor guardian, other than an attorney.
SECTION 5. Section 1104.409, Estates Code, is amended to
read as follows:
Sec. 1104.409. USE OF INFORMATION BY COURT. The court shall
use the information obtained under this subchapter only in
determining whether to:
(1) appoint, remove, or continue the appointment of a
private professional guardian, a guardianship program, an office of
public guardian, or the Health and Human Services Commission
[department]; or
(2) appoint any other person proposed to serve as a
guardian under this title, including a proposed temporary guardian
and a proposed successor guardian, other than an attorney.
SECTION 6. Section 1155.151(a-2), Estates Code, is amended
to read as follows:
(a-2) Notwithstanding any other law requiring the payment
of court costs in a guardianship proceeding, the following are not
required to pay court costs on the filing of or during a
guardianship proceeding:
(1) an attorney ad litem;
(2) a guardian ad litem;
(3) a person or entity who files an affidavit of
inability to pay the costs under Rule 145, Texas Rules of Civil
Procedure, that shows the person or entity is unable to afford the
costs;
(4) a nonprofit guardianship program;
(5) a governmental entity, including an office of
public guardian; and
(6) a government agency or nonprofit agency providing
guardianship services.
SECTION 7. Section 1163.005(a), Estates Code, 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;
(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, an office of public guardian, or
the Health and Human Services Commission [Department of Aging and
Disability Services], whether the guardian or an individual
certified under Subchapter C, Chapter 155 [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 Judicial Branch
[Guardianship] Certification Commission [Board] during the
accounting period.
SECTION 8. Section 1163.101(c), Estates Code, 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;
(9) if the guardian is a private professional
guardian, a guardianship program, an office of public guardian, or
the Health and Human Services Commission [Department of Aging and
Disability Services], whether the guardian or an individual
certified under Subchapter C, Chapter 155, Government Code, who is
providing guardianship services to the ward and who is filing the
affidavit on the guardian's behalf, is or has been the subject of an
investigation conducted by the Judicial Branch [Guardianship]
Certification Commission [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 9. Section 155.001, Government Code, is amended by
amending Subdivisions (4) and (6) and adding Subdivisions (5-a) and
(6-a) to read as follows:
(4) "Guardianship program" means a local, county, or
regional program, other than an office of public guardian, that
provides guardianship and related services to an incapacitated
person or other person who needs assistance in making decisions
concerning the person's own welfare or financial affairs.
(5-a) "Office of public guardian" has the meaning
assigned by Section 1002.0215, Estates Code.
(6) "Private professional guardian" means a person,
other than an attorney, [or] a corporate fiduciary, or an office of
public guardian, who is engaged in the business of providing
guardianship services.
(6-a) "Public guardian" has the meaning assigned by
Section 1002.0265, Estates Code.
SECTION 10. Section 155.101(a), Government Code, is amended
to read as follows:
(a) The commission shall adopt minimum standards for:
(1) the provision of guardianship services or other
similar but less restrictive types of assistance or services by:
(A) guardianship programs; and
(B) private professional guardians; [and]
(2) the provision of guardianship services by the
Health and Human Services Commission; and
(3) the provision of guardianship services by offices
of public guardians [Department of Aging and Disability Services].
SECTION 11. Section 155.102(a), Government Code, is amended
to read as follows:
(a) To provide guardianship services in this state, the
following individuals must hold a certificate issued under this
section:
(1) an individual who is a private professional
guardian;
(2) an individual who will provide those services to a
ward of a private professional guardian on the guardian's behalf;
[and]
(3) an individual, other than a volunteer, who will
provide those services or other services under Section 161.114,
Human Resources Code, to a ward of a guardianship program or the
Health and Human Services Commission [Department of Aging and
Disability Services] on the program's or commission's
[department's] behalf;
(4) an individual who is a public guardian; and
(5) an individual who will provide those services to a
ward of an office of public guardian.
SECTION 12. Section 155.105, Government Code, is amended by
adding Subsection (b-1) to read as follows:
(b-1) Not later than January 31 of each year, each office of
public guardian shall provide to the commission a report containing
for the preceding year:
(1) the number of wards served by the office;
(2) the total amount of any money received from this
state for the provision of guardianship services; and
(3) the amount of money received from any other public
source, including a county or the federal government, for the
provision of guardianship services, reported by source, and the
total amount of money received from those public sources.
SECTION 13. Section 411.1386(a), Government Code, is
amended to read as follows:
(a) Except as provided by Subsections (a-1), (a-5), and
(a-6), the clerk of the county having venue over a proceeding for
the appointment of a guardian under Title 3, Estates Code, shall
obtain from the department criminal history record information
maintained by the department that relates to:
(1) a private professional guardian;
(2) each person who represents or plans to represent
the interests of a ward as a guardian on behalf of the private
professional guardian;
(3) each person employed by a private professional
guardian who will:
(A) have personal contact with a ward or proposed
ward;
(B) exercise control over and manage a ward's
estate; or
(C) perform any duties with respect to the
management of a ward's estate;
(4) each person employed by or volunteering or
contracting with a guardianship program to provide guardianship
services to a ward of the program on the program's behalf; [or]
(5) a public guardian, as defined by Section
1002.0265(1), Estates Code;
(6) each person who represents or plans to represent
the interests of a ward as a guardian on behalf of an office of
public guardian;
(7) each person employed by an office of public
guardian, as defined by Section 1002.0215, Estates Code, who will:
(A) have personal contact with a ward or proposed
ward;
(B) exercise control over and manage a ward's
estate; or
(C) perform any duties with respect to the
management of a ward's estate; or
(8) any other person proposed to serve as a guardian
under Title 3, Estates Code, including a proposed temporary
guardian and a proposed successor guardian, other than an attorney.
SECTION 14. Section 161.103, Human Resources Code, is
amended to read as follows:
Sec. 161.103. CONTRACT FOR GUARDIANSHIP SERVICES. (a) If
appropriate, the commission [department] may contract with a
political subdivision of this state, a guardianship program as
defined by Section 1002.016, Estates Code, a private agency, or
another state agency for the provision of guardianship services
under this section.
(b) A contract under Subsection (a) may allow for the
provision of guardianship services by an office of public guardian,
as defined by Section 1002.0215, Estates Code.
SECTION 15. Not later than January 1, 2018, the supreme
court shall adopt rules necessary to implement Subchapter G-1,
Chapter 1104, Estates Code, as added by this Act, including rules
governing the transfer of a guardianship of the person or of the
estate of a ward, or both, if appropriate, to an office of public
guardian established under that subchapter or a public guardian
contracted under that subchapter.
SECTION 16. (a) The changes in law made by this Act apply
only to the appointment of a guardian of the person or of the estate
of a ward, or both, made on or after July 1, 2018.
(b) Notwithstanding any other law, a person who,
immediately before July 1, 2018, is serving as guardian of the
person or of the estate of a ward, or both, who, under Section
1104.334, Estates Code, as added by this Act, would be eligible for
appointment of an office of public guardian as the ward's guardian,
may continue to serve as guardian of the person or of the estate of
the ward, or both, unless otherwise removed as provided by law.
SECTION 17. This Act takes effect September 1, 2017.
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