87R5295 KFF-D
By: White, Guillen H.B. No. 2439
A BILL TO BE ENTITLED
AN ACT
relating to the appointment of a temporary guardian to receive
certain social security benefits.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle G, Title 3, Estates Code, is amended by
adding Chapter 1251A to read as follows:
CHAPTER 1251A. TEMPORARY GUARDIANSHIP TO RECEIVE CERTAIN SOCIAL
SECURITY BENEFITS
SUBCHAPTER A. APPOINTMENT OF TEMPORARY GUARDIAN TO RECEIVE CERTAIN
SOCIAL SECURITY BENEFITS GENERALLY
Sec. 1251A.001. APPOINTMENT OF TEMPORARY GUARDIAN TO
RECEIVE CERTAIN SOCIAL SECURITY BENEFITS. (a) A court shall
appoint a temporary guardian with the limited power to receive
funds under the federal Social Security Act (42 U.S.C. Section 301
et seq.), including funds in the form of Supplemental Security
Income (SSI) benefits under 42 U.S.C. Section 1381 et seq. or funds
in the form of Social Security Disability Insurance (SSDI) benefits
under 42 U.S.C. Section 401 et seq., if the court:
(1) is presented with substantial evidence that a
person may be an incapacitated person; and
(2) has probable cause to believe that the immediate
appointment of a guardian is required.
(b) The person for whom a temporary guardian is appointed
under this chapter retains all rights and powers that are not
specifically granted to the person's temporary guardian by court
order.
Sec. 1251A.002. NO PRESUMPTION OF INCAPACITY. A person for
whom a temporary guardian is appointed under this chapter may not be
presumed to be incapacitated.
Sec. 1251A.003. PERSONS ELIGIBLE FOR APPOINTMENT AS
TEMPORARY GUARDIAN TO RECEIVE CERTAIN SOCIAL SECURITY BENEFITS.
The following persons are eligible for appointment as temporary
guardian under this chapter:
(1) the person's spouse;
(2) the person's reasonably available adult children;
(3) the person's parents; or
(4) the person's nearest living relative.
Sec. 1251A.004. APPLICATION. (a) A sworn, written
application for the appointment of a temporary guardian shall be
filed before the court appoints a temporary guardian under this
chapter.
(b) The application must state:
(1) the name and address of the person who is the
subject of the guardianship proceeding;
(2) the appointment is requested for the limited
purpose of receiving funds under the federal Social Security Act,
including a description of the specific benefits sought;
(3) the facts and reasons supporting the allegations
and requests;
(4) the proposed temporary guardian's name, address,
and qualification; and
(5) the applicant's name, address, and interest.
Sec. 1251A.005. NOTICE OF APPLICATION. (a) On the filing
of an application for temporary guardianship under this chapter,
the clerk shall issue notice to be served on:
(1) the proposed ward; and
(2) the proposed temporary guardian named in the
application, if that person is not the applicant.
(b) The notice must describe:
(1) the rights of the parties; and
(2) the date, time, place, purpose, and possible
consequences of a hearing on the application.
(c) A copy of the application must be attached to the
notice.
Sec. 1251A.006. SCHEDULING OF EXPEDITED HEARING. (a)
Immediately after an application for a temporary guardianship is
filed under this chapter, the court shall issue an order setting a
certain date for the hearing on the application.
(b) Unless postponed as provided by Subsection (c), a
hearing shall be held not later than 48 hours after the time the
application for temporary guardianship is filed.
(c) The proposed ward may consent to postpone the hearing on
the application for temporary guardianship for a period not to
exceed seven days after the date the application is filed.
(d) An application for temporary guardianship takes
precedence over all matters except older matters of the same
character.
Sec. 1251A.007. MOTION FOR DISMISSAL OF APPLICATION. (a)
Subject to Subsection (b), the proposed ward may appear and move for
the dismissal of the application for temporary guardianship filed
under this chapter.
(b) At least one day before making a motion under Subsection
(a), the proposed ward shall provide notice to the party who filed
the application for temporary guardianship.
(c) If a motion is made for dismissal of the application for
temporary guardianship, the court shall hear and determine the
motion as expeditiously as justice requires.
Sec. 1251A.008. RIGHTS OF PROPOSED WARD AT HEARING. At a
hearing under this subchapter, the proposed ward has the right to:
(1) receive prior notice;
(2) be represented by counsel;
(3) be present;
(4) present evidence;
(5) confront and cross-examine witnesses; and
(6) a closed hearing if requested by the proposed
ward.
Sec. 1251A.009. APPEARANCE BY PROPOSED TEMPORARY GUARDIAN
TO RECEIVE CERTAIN SOCIAL SECURITY BENEFITS IN CERTAIN
CIRCUMSTANCES. If the applicant for a temporary guardianship under
this chapter is not the proposed temporary guardian, a temporary
guardianship may not be granted before a hearing on the application
required by Section 1251A.006(b) unless the proposed temporary
guardian appears in court.
Sec. 1251A.010. EXPEDITED ORDER APPOINTING TEMPORARY
GUARDIAN TO RECEIVE CERTAIN SOCIAL SECURITY BENEFITS. (a) Not
later than 24 hours after the time the hearing required by Section
1251A.006(b) concludes, the court shall appoint a temporary
guardian by written order if the court determines that the
applicant has established that there is substantial evidence that
the proposed ward is an incapacitated person and that the immediate
appointment of a guardian is required for the purposes described by
Section 1251A.001(a).
(b) The court shall assign to the temporary guardian only
those powers and duties that are necessary to receive the funds
specified in the application under Section 1251A.004(b)(2).
(c) The order appointing the temporary guardian must
describe:
(1) the reasons for the temporary guardianship; and
(2) the powers and duties of the temporary guardian.
Sec. 1251A.011. BOND NOT REQUIRED. Notwithstanding Chapter
1105 or any other law, a person appointed to serve as temporary
guardian under this chapter is not required to give a bond.
Sec. 1251A.012. COURT COSTS. If the court appoints a
temporary guardian after the hearing required by Section
1251A.006(b), all court costs, including attorney's fees, may be
assessed as provided by Sections 1155.054 and 1155.151.
SUBCHAPTER B. POWERS AND DUTIES OF TEMPORARY GUARDIAN TO RECEIVE
CERTAIN SOCIAL SECURITY BENEFITS
Sec. 1251A.051. AUTHORITY OF TEMPORARY GUARDIAN TO RECEIVE
CERTAIN SOCIAL SECURITY BENEFITS. (a) When the temporary guardian
appointed under this chapter takes the oath required under this
title, the court order appointing the temporary guardian takes
effect without the necessity for issuance of letters of
guardianship.
(b) The clerk shall note compliance with the oath
requirement by the appointed temporary guardian on a certificate
attached to the order.
(c) The order appointing the temporary guardian is evidence
of the temporary guardian's authority to act within the scope of the
powers and duties stated in the order.
(d) The clerk may not issue certified copies of the order
until the oath requirement is satisfied.
Sec. 1251A.052. APPLICABILITY OF GUARDIANSHIP PROVISIONS.
The provisions of this title relating to the guardianship of the
estates of incapacitated persons apply to a temporary guardianship
created under this chapter, to the extent the provisions may be made
applicable.
SUBCHAPTER C. EXPIRATION AND CLOSING OF TEMPORARY GUARDIANSHIP TO
RECEIVE CERTAIN SOCIAL SECURITY BENEFITS
Sec. 1251A.101. EXPIRATION OF TEMPORARY GUARDIANSHIP TO
RECEIVE CERTAIN SOCIAL SECURITY BENEFITS. The term of a temporary
guardian appointed under this chapter expires on the earliest of:
(1) the 30th day after the date the court order
appointing the temporary guardian takes effect, except that the
court may grant one extension of that time for not longer than 30
days; or
(2) the date a permanent guardian appointed by the
court for the proposed ward qualifies to serve as the ward's
guardian.
Sec. 1251A.102. ACCOUNTING. (a) At the expiration of a
temporary guardianship under Section 1251A.101, the temporary
guardian shall file with the court clerk:
(1) a sworn list of all estate property that has come
into the temporary guardian's possession; and
(2) a full exhibit and account of all the temporary
guardian's acts as temporary guardian.
(b) The court shall act on the list, exhibit, and account
filed under Subsection (a).
Sec. 1251A.103. DELIVERY OF ESTATE; DISCHARGE OF TEMPORARY
GUARDIAN TO RECEIVE CERTAIN SOCIAL SECURITY BENEFITS. (a) When the
court order appointing a temporary guardian under this chapter
expires or ceases to be effective for any reason, the court
immediately shall enter an order requiring the temporary guardian
to deliver the estate remaining in the temporary guardian's
possession to the person legally entitled to possession of the
estate.
(b) On proof of delivery under Subsection (a), the temporary
guardian shall be discharged.
SECTION 2. This Act takes effect September 1, 2021.