By: Allison, Middleton, Pacheco H.B. No. 1675
A BILL TO BE ENTITLED
AN ACT
relating to guardianships of the person of wards with profound
intellectual disabilities who are minors or were minors when their
guardianship proceedings commenced.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act may be cited as Caleb's Law.
SECTION 2. Section 1054.001, Estates Code, is amended to
read as follows:
Sec. 1054.001. APPOINTMENT OF ATTORNEY AD LITEM IN
PROCEEDING FOR APPOINTMENT OF GUARDIAN. In a proceeding under this
title for the appointment of a guardian and except as provided by
Section 1103A.001, the court shall appoint an attorney ad litem to
represent the proposed ward's interests.
SECTION 3. Section 1054.151, Estates Code, is amended to
read as follows:
Sec. 1054.151. INVESTIGATION OF GUARDIANSHIP APPLICATION.
On the filing of an application for guardianship under Section
1101.001 and except as provided by Section 1103A.001, a court
investigator shall investigate the circumstances alleged in the
application to determine whether a less restrictive alternative to
guardianship is appropriate.
SECTION 4. Subtitle D, Title 3, Estates Code, is amended by
adding Chapter 1103A to read as follows:
CHAPTER 1103A. PROCEDURE TO APPOINT CAREGIVER PARENT AS INDEPENDENT
GUARDIAN OF THE PERSON FOR CERTAIN MINORS REQUIRING GUARDIANSHIPS
AS ADULTS
Sec. 1103A.001. PROCEDURE FOR APPOINTMENT OF CAREGIVER
PARENT AS INDEPENDENT GUARDIAN OF THE PERSON OF CERTAIN MINORS WITH
PROFOUND INTELLECTUAL DISABILITIES. (a) This section applies only
to a proceeding for the appointment of a guardian of the person of a
proposed ward under Section 1101.001 or 1103.001 in which the:
(1) proposed ward is a minor who:
(A) has a profound intellectual disability, as
diagnosed by a physician licensed to practice in this state or as
determined, following an examination, by a psychologist licensed in
this state or certified by the Health and Human Services Commission
to perform the examination, in accordance with rules adopted by the
executive commissioner of the commission governing examinations of
that kind; and
(B) because of the incapacity described by
Paragraph (A) will require a guardianship of the person after the
proposed ward is no longer a minor; and
(2) proposed guardian of the person is a parent and
primary caregiver of the proposed ward.
(b) Notwithstanding any other law, if the applicant who
files an application for appointment as guardian of the person of a
proposed ward under Section 1101.001 or 1103.001 is the parent and
primary caregiver of the proposed ward, the applicant may present
to the court:
(1) an affidavit sworn to by the applicant that states
that the applicant is a parent of a proposed ward described by
Subsection (a)(1) and:
(A) is and has been the primary caregiver of the
proposed ward throughout all or most of his or her childhood;
(B) has never been the subject of an allegation,
complaint, or investigation concerning the abuse, neglect, or
exploitation of the proposed ward;
(C) seeks to be appointed guardian of the person
of the proposed ward; and
(D) is not disqualified from serving as guardian
under Subchapter H, Chapter 1104;
(2) at least one written letter or certificate that
meets the requirements of:
(A) Sections 1101.103(a) and (b); or
(B) Section 1101.104, except that the period
prescribed by Section 1101.104(2) would apply to the date the
application is filed; and
(3) a written request that:
(A) the court make the findings required by
Section 1101.101 and appoint the parent as guardian of the person of
the proposed ward in accordance with this section without the
necessity of an investigation by a court investigator under Section
1054.151; and
(B) after appointment and qualification of the
applicant as guardian of the person of the ward, no other action
shall be had in the probate court in relation to the guardianship of
the person of the ward other than the review required by Section
1201.052(b).
(c) If, following a written request under Subsection (b) and
on receipt of an affidavit that complies with Subsection (b)(1) and
a letter or certificate that complies with Subsection (b)(2), the
court is able to make the findings required by Section 1101.101, the
court, notwithstanding Subchapter C, Chapter 1104, shall appoint
the parent as guardian of the proposed ward's person without
appointing a court investigator or the continued appointment of an
attorney ad litem unless:
(1) the parent is disqualified from serving as
guardian under Subchapter H, Chapter 1104;
(2) the court has any reason to believe that one or
more of the assertions set out in the affidavit are untrue; or
(3) the court finds that the appointment is not in the
best interest of the proposed ward.
(d) A guardianship created under this section is considered
an independent guardianship of the person of a ward, and a guardian
appointed under this section is considered an independent guardian
of the person of a ward.
Sec. 1103A.002. SEALING OF CERTAIN RECORDS. (a) The court
shall seal a written letter or certificate submitted under Section
1103A.001(b) and any other medical record or document examined by
the court for purposes of this section unless the court finds good
cause not to seal the document.
(b) The court's records sealed under this section are not
open for inspection by any person except:
(1) on further order of the court after notice to the
guardian of the person of the ward whose information is sealed and a
finding of good cause; or
(2) in connection with a criminal or civil proceeding
as otherwise provided by law.
Sec. 1103A.003. PETITION FOR CONVERSION OF GUARDIANSHIP OF
THE PERSON TO INDEPENDENT GUARDIANSHIP OF THE PERSON. (a) This
section applies only to a guardianship of the person of a ward
created before September 1, 2021, if on the date the application for
guardianship was filed under Section 1101.001 or 1103.001:
(1) the ward met the description of a proposed ward
under Section 1103A.001(a)(1); and
(2) the guardian was the parent and primary caregiver
of the ward.
(b) The guardian in a guardianship to which this section
applies may petition the court with jurisdiction over the
guardianship to authorize that the guardianship of the person be
treated on a prospective basis as if the guardianship was created
and, if applicable, the guardian of the person appointed, under
Section 1103A.001.
SECTION 5. Section 1105.101(c), Estates Code, is amended to
read as follows:
(c) The court shall issue letters of guardianship of the
person to a person without the requirement of a bond if:
(1) the person is:
(A) a parent of the ward appointed under Section
1103A.001 who is not also appointed as guardian of the estate of the
ward; or
(B) named to be appointed guardian in a will made
by a surviving parent that is probated by a court in this state, or
in a written declaration made by a surviving parent, and the will or
declaration directs that the guardian serve without a bond; and
(2) the court finds that the guardian is qualified.
SECTION 6. Section 1106.002, Estates Code, is amended to
read as follows:
Sec. 1106.002. EXPIRATION OF LETTERS OF GUARDIANSHIP. (a)
Except as provided by Subsection (b), letters [Letters] of
guardianship expire one year and four months after the date the
letters are issued, unless renewed.
(b) Unless the court finds that it is not in the best
interest of the ward, letters of guardianship issued to a guardian
of the person of a ward appointed under Section 1103A.001 do not
expire unless the guardian is removed or would otherwise be
ineligible to serve as guardian.
SECTION 7. Section 1163.101, Estates Code, is amended by
amending Subsection (a) and adding Subsection (a-1) to read as
follows:
(a) Except as provided by Subsection (a-1), once [Once] each
year for the duration of the guardianship, a guardian of the person
shall file with the court a report that contains the information
required by this section.
(a-1) Unless the court finds that it is not in the best
interest of the ward, a guardian of the person of a ward appointed
under Section 1103A.001 is not required to file an annual report
under this section.
SECTION 8. The heading to Subchapter B, Chapter 1201,
Estates Code, is amended to read as follows:
SUBCHAPTER B. [ANNUAL] DETERMINATION TO CONTINUE, MODIFY, OR
TERMINATE GUARDIANSHIP
SECTION 9. Section 1201.052, Estates Code, is amended to
read as follows:
Sec. 1201.052. ANNUAL OR OTHER DETERMINATION. (a) To
determine whether a guardianship should be continued, modified, or
terminated, the court in which the guardianship proceeding is
pending:
(1) shall, except as provided by Subsection (b),
review annually each guardianship in which the application to
create the guardianship was filed after September 1, 1993; and
(2) may review annually any other guardianship.
(b) To determine whether a guardianship of the person of a
ward created under Section 1103A.001 should be continued, modified,
or terminated, the court in which the guardianship proceeding is
pending shall review the guardianship of the person at the
discretion of the court but not more frequently than once every five
years unless the guardian of the person of the ward is also the
guardian of the estate of the ward.
(c) Notwithstanding Subsection (b), on receipt of a claim
that the guardianship is no longer in the best interest of the ward,
the court may review the matter and take any action the court
determines necessary.
SECTION 10. The changes in law made by this Act apply to a
guardianship proceeding that is pending or commenced on or after
the effective date of this Act.
SECTION 11. This Act takes effect September 1, 2021.