By: Zaffirini S.B. No. 39
A BILL TO BE ENTITLED
AN ACT
relating to guardianships for persons who have physical
disabilities or who are incapacitated.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ESTATES CODE
SECTION 1. Section 1055.003, Estates Code, is amended as
follows:
Sec. 1055.003. INTERVENTION BY INTERESTED PERSON. (a)
Notwithstanding the Texas Rules of Civil Procedure, an interested
person may intervene in a guardianship proceeding only by filing a
timely motion to intervene that is served on the parties.
(b) The motion must state the grounds for intervention in
the proceeding and be accompanied by a pleading that sets out the
purpose for which intervention is sought.
(c) The provisions of Subsections (a) and (b) do not apply
to any person who would be entitled to notice of the filing of the
guardianship application pursuant to Section 1051.104 of this code.
SECTION 2. Section 1102.002, Estates Code, is amended as
follows:
Sec. 1102.002. CONTENTS OF APPLICATION FOR GUARDIANSHIP;
CONFIDENTIALITY OF CERTAIN ADDRESSES. An application filed under
Section 1101.001 may omit the address of a person named in the
application if:
(1) The application states that the person is or was
protected by a protective order issued under Chapter 85, Family
Code;
SECTION 3. Section 1357.056, Estates Code is amended as
follows:
Sec. 1357.056. FORM OF SUPPORTED DECISION-MAKING
AGREEMENT.
IMPORTANT INFORMATION FOR SUPPORTER
Supporter's Duties
When you accept the authority granted to a supporter
under this supported decision-making agreement, you
establish a "fiduciary" relationship with the adult
with a disability who executes the agreement. This is a
special legal relationship that imposes on you legal
duties that continue until the agreement is terminated
by either party, by the terms of the agreement, or by
operation of law. A fiduciary duty generally includes
the duty to:
(1) act in good faith;
(2) do nothing beyond the authority granted in this
agreement;
(3) act loyally for the benefit of the adult with a
disability making the agreement;
(4) disclose to the adult with a disability pertinent
information affecting that person; and
(5) avoid conflicts that would impair your ability to
act in the best interest of the person executing the agreement.
Termination of Agent's Authority
You must stop acting as a supporter on behalf of the
adult with a disability if you learn of any event that
terminates this agreement or your authority to act
under it. An event that terminates this agreement or
your authority to act under it includes:
(1) the termination of the agreement by either you or
the adult with a disability;
(2) the appointment and qualification of a guardian of
the person or estate;
(3) if the Texas Department of Family and Protective
Services finds that the adult with a disability has been abused,
neglected or exploited by you; or you are found criminally liable
for conduct involving the adult with a disability.
SECTION 4. Section 1357.101, Estates Code is amended as
follows:
Sec. 1357.101. RELIANCE ON AGREEMENT; LIMITATION OF
LIABILITY.
(c) A supporter in a supported decision making agreement is
in a fiduciary relationship with the adult with a disability who
enters into the agreement, and owes to the adult with a disability
those duties stated in the form set forth in Section 1357.056.
SECTION 5. Section 752.051, Estates Code, is amended as
follows:
Sec. 752.051. FORM OF STATUTORY DURABLE POWER OF ATTORNEY.
If any agent named by me dies, becomes legally
disabled, resigns, or refuses to act, or is removed by
a court of competent jurisdiction, I name the
following (each to act alone and successively, in the
order named) as successor(s) to that agent:
____________________________________________________
_______.
SECTION 6. Section 752.052, Estates Code, is amended as
follows:
Sec. 752.052. RELATION OF ATTORNEY-IN-FACT TO
COURT-APPOINTED GUARDIAN OF ESTATE.
(a) The appointment by a court in a guardianship proceeding
in Texas of a temporary or permanent guardian of the estate for a
ward who is the principal under a statutory durable power of
attorney automatically revokes all powers and authority granted to
each agent or attorney-in-fact named in the power of attorney,
unless the court in the guardianship proceeding enters an order
that:
(1) affirms and states the effectiveness of the power
of attorney; and
(2) confirms the validity of the appointment of the
named agent or attorney-in-fact.
SECTION 7. Subtitle P, Chapter 753, Section 753.001,
Estates Code is added as follows:
Sec. 753.001. REMOVAL OF ATTORNEY-IN FACT.
(a) The following persons may file a petition to remove the
currently serving attorney-in-fact named in a durable power of
attorney and appoint a successor attorney-in-fact who is named in
the durable power of attorney:
(1) any person named as a successor attorney-in-fact
in the durable power of attorney; or
(2) as a least restrictive alternative to
guardianship, any interested person (including an attorney
ad-litem or guardian ad-litem) in a guardianship proceeding.
(b) An attorney-in-fact may be removed on the petition of an
interested person, and after hearing, a court may, in its
discretion, remove an attorney-in-fact and deny part or all of the
attorney-in-fact's compensation, if allowed by the terms of the
power of attorney, if:
(1) the court finds that the attorney-in-fact has
breached his or her fiduciary duties to the principal;
(2) the court finds that the attorney-in-fact has
materially violated or attempted to violate the terms of the
durable power of attorney and the violation or attempted violation
results in a material financial loss to the principal;
(3) the attorney-in-fact becomes incapacitated or is
otherwise incapable of properly performing his or her duties;
(4) the attorney-in-fact fails to make an accounting
that is required by law or by the terms of the power of attorney or
as ordered by the court; or
(5) the court finds other cause for removal.
(c) A cause of action brought under subsection (a) may be
filed in any court with original probate jurisdiction.
SECTION 8. Subtitle P, Chapter 753, Section 753.002,
Estates Code is added as follows:
Sec. 753.002. APPOINTMENT OF DESIGNATED SUCCESSOR
ATTORNEY-IN FACT.
(a) If a person currently serving as an attorney-in-fact
under a durable power of attorney is removed pursuant to Section
753.001 of this code, the court shall not authorize the appointment
of any successor attorney-in-fact named in the durable power of
attorney unless the court enters findings that such person is
qualified and capable of properly performing his or her duties to
the principal, pursuant to the terms of the durable power of
attorney and other applicable law.
(b) Within twenty-one days after entry of an order removing
an attorney-in-fact, pursuant to Section 753.001, and appointing a
successor attorney-in-fact, as provided in this subsection (a), the
successor attorney-in-fact shall provide actual notice of such
order to all appropriate third-parties who the attorney-in-fact has
reason to believe have relied, or may rely, on the durable power of
attorney.