Texas 2021 - 87th Regular

Texas House Bill HB1675 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
	1	+	87R15967 KFF-D
1	2		By: Allison, Middleton, Pacheco H.B. No. 1675
	3	+	Substitute the following for H.B. No. 1675:
	4	+	By: Krause C.S.H.B. No. 1675
2	5
3	6
4	7		A BILL TO BE ENTITLED
5	8		AN ACT
6	9		relating to guardianships of the person of wards with profound
7	10		intellectual disabilities who are minors or were minors when their
8	11		guardianship proceedings commenced.
9	12		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	13		SECTION 1. This Act may be cited as Caleb's Law.
11	14		SECTION 2. Section 1054.001, Estates Code, is amended to
12	15		read as follows:
13	16		Sec. 1054.001. APPOINTMENT OF ATTORNEY AD LITEM IN
14	17		PROCEEDING FOR APPOINTMENT OF GUARDIAN. In a proceeding under this
15	18		title for the appointment of a guardian and except as provided by
16	19		Section 1103A.001, the court shall appoint an attorney ad litem to
17	20		represent the proposed ward's interests.
18	21		SECTION 3. Section 1054.151, Estates Code, is amended to
19	22		read as follows:
20	23		Sec. 1054.151. INVESTIGATION OF GUARDIANSHIP APPLICATION.
21	24		On the filing of an application for guardianship under Section
22	25		1101.001 and except as provided by Section 1103A.001, a court
23	26		investigator shall investigate the circumstances alleged in the
24	27		application to determine whether a less restrictive alternative to
25	28		guardianship is appropriate.
26	29		SECTION 4. Subtitle D, Title 3, Estates Code, is amended by
27	30		adding Chapter 1103A to read as follows:
28	31		CHAPTER 1103A. PROCEDURE TO APPOINT CAREGIVER PARENT AS INDEPENDENT
29	32		GUARDIAN OF THE PERSON FOR CERTAIN MINORS REQUIRING GUARDIANSHIPS
30	33		AS ADULTS
31	34		Sec. 1103A.001. PROCEDURE FOR APPOINTMENT OF CAREGIVER
32	35		PARENT AS INDEPENDENT GUARDIAN OF THE PERSON OF CERTAIN MINORS WITH
33	36		PROFOUND INTELLECTUAL DISABILITIES. (a) This section applies only
34	37		to a proceeding for the appointment of a guardian of the person of a
35	38		proposed ward under Section 1101.001 or 1103.001 in which the:
36	39		(1) proposed ward is a minor who:
37	40		(A) has a profound intellectual disability, as
38	41		diagnosed by a physician licensed to practice in this state or as
39	42		determined, following an examination, by a psychologist licensed in
40	43		this state or certified by the Health and Human Services Commission
41	44		to perform the examination, in accordance with rules adopted by the
42	45		executive commissioner of the commission governing examinations of
43	46		that kind; and
44	47		(B) because of the incapacity described by
45	48		Paragraph (A) will require a guardianship of the person after the
46	49		proposed ward is no longer a minor; and
47	50		(2) proposed guardian of the person is a parent and
48	51		primary caregiver of the proposed ward.
49	52		(b) Notwithstanding any other law, if the applicant who
50	53		files an application for appointment as guardian of the person of a
51	54		proposed ward under Section 1101.001 or 1103.001 is the parent and
52	55		primary caregiver of the proposed ward, the applicant may present
53	56		to the court:
54	57		(1) an affidavit sworn to by the applicant that states
55	58		that the applicant is a parent of a proposed ward described by
56	59		Subsection (a)(1) and:
57	60		(A) is and has been the primary caregiver of the
58	61		proposed ward throughout all or most of his or her childhood;
59	62		(B) has never been the subject of an allegation,
60	63		complaint, or investigation concerning the abuse, neglect, or
61	64		exploitation of the proposed ward;
62	65		(C) seeks to be appointed guardian of the person
63	66		of the proposed ward; and
64	67		(D) is not disqualified from serving as guardian
65	68		under Subchapter H, Chapter 1104;
66	69		(2) at least one written letter or certificate that
67	70		meets the requirements of:
68	71		(A) Sections 1101.103(a) and (b); or
69	72		(B) Section 1101.104, except that the period
70	73		prescribed by Section 1101.104(2) would apply to the date the
71	74		application is filed; and
72	75		(3) a written request that:
73	76		(A) the court make the findings required by
74	77		Section 1101.101 and appoint the parent as guardian of the person of
75		-	the proposed ward in accordance with this section without the
76		-	necessity of an investigation by a court investigator under Section
77		-	1054.151; and
	78	+	the proposed ward in accordance with this section without a hearing
	79	+	or the necessity of an appointment of an attorney ad litem under
	80	+	Section 1054.001 or investigation by a court investigator under
	81	+	Section 1054.151; and
78	82		(B) after appointment and qualification of the
79	83		applicant as guardian of the person of the ward, no other action
80	84		shall be had in the probate court in relation to the guardianship of
81	85		the person of the ward other than the review required by Section
82	86		1201.052(b).
83	87		(c) If, following a written request under Subsection (b) and
84	88		on receipt of an affidavit that complies with Subsection (b)(1) and
85	89		a letter or certificate that complies with Subsection (b)(2), the
86	90		court is able to make the findings required by Section 1101.101, the
87	91		court, notwithstanding Subchapter C, Chapter 1104, shall appoint
88	92		the parent as guardian of the proposed ward's person without
89		-	appointing ~~a court investigator~~ or ~~the continued appointment of an~~
90		-	~~attorney ad litem~~ unless:
	93	+	conducting a hearing or appointing an attorney ad litem or court
	94	+	investigator unless:
91	95		(1) the parent is disqualified from serving as
92	96		guardian under Subchapter H, Chapter 1104;
93	97		(2) the court has any reason to believe that one or
94	98		more of the assertions set out in the affidavit are untrue; or
95	99		(3) the court finds that the appointment is not in the
96	100		best interest of the proposed ward.
97	101		(d) A guardianship created under this section is considered
98	102		an independent guardianship of the person of a ward, and a guardian
99	103		appointed under this section is considered an independent guardian
100	104		of the person of a ward.
101	105		Sec. 1103A.002. SEALING OF CERTAIN RECORDS. (a) The court
102	106		shall seal a written letter or certificate submitted under Section
103	107		1103A.001(b) and any other medical record or document examined by
104	108		the court for purposes of this section unless the court finds good
105	109		cause not to seal the document.
106	110		(b) The court's records sealed under this section are not
107	111		open for inspection by any person except:
108	112		(1) on further order of the court after notice to the
109	113		guardian of the person of the ward whose information is sealed and a
110	114		finding of good cause; or
111	115		(2) in connection with a criminal or civil proceeding
112	116		as otherwise provided by law.
113	117		Sec. 1103A.003. PETITION FOR CONVERSION OF GUARDIANSHIP OF
114	118		THE PERSON TO INDEPENDENT GUARDIANSHIP OF THE PERSON. (a) This
115	119		section applies only to a guardianship of the person of a ward
116	120		created before September 1, 2021, if on the date the application for
117	121		guardianship was filed under Section 1101.001 or 1103.001:
118	122		(1) the ward met the description of a proposed ward
119	123		under Section 1103A.001(a)(1); and
120	124		(2) the guardian was the parent and primary caregiver
121	125		of the ward.
122	126		(b) The guardian in a guardianship to which this section
123	127		applies may petition the court with jurisdiction over the
124	128		guardianship to authorize that the guardianship of the person be
125	129		treated on a prospective basis as if the guardianship was created
126	130		and, if applicable, the guardian of the person appointed, under
127	131		Section 1103A.001.
128	132		SECTION 5. Section 1105.101(c), Estates Code, is amended to
129	133		read as follows:
130	134		(c) The court shall issue letters of guardianship of the
131	135		person to a person without the requirement of a bond if:
132	136		(1) the person is:
133	137		(A) a parent of the ward appointed under Section
134	138		1103A.001 who is not also appointed as guardian of the estate of the
135	139		ward; or
136	140		(B) named to be appointed guardian in a will made
137	141		by a surviving parent that is probated by a court in this state, or
138	142		in a written declaration made by a surviving parent, and the will or
139	143		declaration directs that the guardian serve without a bond; and
140	144		(2) the court finds that the guardian is qualified.
141	145		SECTION 6. Section 1106.002, Estates Code, is amended to
142	146		read as follows:
143	147		Sec. 1106.002. EXPIRATION OF LETTERS OF GUARDIANSHIP. (a)
144	148		Except as provided by Subsection (b), letters [Letters] of
145	149		guardianship expire one year and four months after the date the
146	150		letters are issued, unless renewed.
147	151		(b) Unless the court finds that it is not in the best
148	152		interest of the ward, letters of guardianship issued to a guardian
149	153		of the person of a ward appointed under Section 1103A.001 do not
150	154		expire unless the guardian is removed or would otherwise be
151	155		ineligible to serve as guardian.
152	156		SECTION 7. Section 1163.101, Estates Code, is amended by
153	157		amending Subsection (a) and adding Subsection (a-1) to read as
154	158		follows:
155	159		(a) Except as provided by Subsection (a-1), once [Once] each
156	160		year for the duration of the guardianship, a guardian of the person
157	161		shall file with the court a report that contains the information
158	162		required by this section.
159	163		(a-1) Unless the court finds that it is not in the best
160	164		interest of the ward, a guardian of the person of a ward appointed
161	165		under Section 1103A.001 is not required to file an annual report
162	166		under this section.
163	167		SECTION 8. The heading to Subchapter B, Chapter 1201,
164	168		Estates Code, is amended to read as follows:
165	169		SUBCHAPTER B. [ANNUAL] DETERMINATION TO CONTINUE, MODIFY, OR
166	170		TERMINATE GUARDIANSHIP
167	171		SECTION 9. Section 1201.052, Estates Code, is amended to
168	172		read as follows:
169	173		Sec. 1201.052. ANNUAL OR OTHER DETERMINATION. (a) To
170	174		determine whether a guardianship should be continued, modified, or
171	175		terminated, the court in which the guardianship proceeding is
172	176		pending:
173	177		(1) shall, except as provided by Subsection (b),
174	178		review annually each guardianship in which the application to
175	179		create the guardianship was filed after September 1, 1993; and
176	180		(2) may review annually any other guardianship.
177	181		(b) To determine whether a guardianship of the person of a
178	182		ward created under Section 1103A.001 should be continued, modified,
179	183		or terminated, the court in which the guardianship proceeding is
180	184		pending shall review the guardianship of the person at the
181	185		discretion of the court but not more frequently than once every five
182	186		years unless the guardian of the person of the ward is also the
183	187		guardian of the estate of the ward.
184		-	(c) Notwithstanding Subsection (b), on receipt of a claim
185		-	that the guardianship is no longer in the best interest of the ward,
186		-	the court may review the matter and take any action the court
187		-	determines necessary.
188	188		SECTION 10. The changes in law made by this Act apply to a
189	189		guardianship proceeding that is pending or commenced on or after
190	190		the effective date of this Act.
191	191		SECTION 11. This Act takes effect September 1, 2021.