Texas 2021 - 87th Regular

Texas House Bill HB3318 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	By: Neave H.B. No. 3318
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to guardianships, alternatives to guardianship, and
7	7	supports and services for incapacitated persons.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Section 1023.005, Estates Code, is amended to
10	10	read as follows:
11	11	Sec. 1023.005. COURT ACTION. (a) On hearing an application
12	12	or motion under Section 1023.003, if [good cause is not shown to
13	13	deny the transfer and] it appears that transfer of the guardianship
14	14	is in the best interests of the ward and either the ward has resided
15	15	in the county to which the guardianship is to be transferred for at
16	16	least six months or good cause is not otherwise shown to deny the
17	17	transfer, the court shall enter an order:
18	18	(1) authorizing the transfer on payment on behalf of
19	19	the estate of all accrued costs; [and]
20	20	(2) requiring that any existing bond of the guardian
21	21	must remain in effect until a new bond has been given or a rider has
22	22	been filed in accordance with Section 1023.010; and
23	23	(3) certifying that the guardianship is in compliance
24	24	with this code at the time of transfer.
25	25	(b) In making a determination that the transfer is in the
26	26	best interests of the ward under Subsection (a), the court may
27	27	consider:
28	28	(1) the interests of justice;
29	29	(2) the convenience of the parties; and
30	30	(3) the preference of the ward, if the ward is 12 years
31	31	of age or older.
32	32	(c) On receipt of an order described by Subsection (a), the
33	33	county shall accept the transfer of the guardianship.
34	34	SECTION 2. Section 1023.008, Estates Code, is amended to
35	35	read as follows:
36	36	Sec. 1023.008. CONTINUATION OF GUARDIANSHIP. (a) When a
37	37	guardianship is transferred from one county to another in
38	38	accordance with this chapter:
39	39	(1) [,] the guardianship proceeds in the court to
40	40	which it was transferred as if it had been originally commenced in
41	41	that court;
42	42	(2) the court to which the guardianship is transferred
43	43	becomes the court of continuing, exclusive jurisdiction;
44	44	(3) a proceeding relating to the guardianship that is
45	45	commenced in the court ordering the transfer continues in the court
46	46	to which the guardianship is transferred as if the proceeding
47	47	commenced in the receiving court;
48	48	(4) a judgment or order entered in the guardianship
49	49	before the transfer has the same effect and must be enforced as a
50	50	judgment or order entered by the court to which the guardianship is
51	51	transferred; and
52	52	(5) the court ordering the transfer does not retain:
53	53	(A) jurisdiction of the ward who is the subject
54	54	of the guardianship; and
55	55	(B) the authority to enforce an order entered for
56	56	a violation of this title that occurred before or after the
57	57	transfer.
58	58	(b) It is not necessary to record in the receiving court any
59	59	of the papers in the case that were recorded in the court from which
60	60	the case was transferred.
61	61	SECTION 3. Chapter 1023, Estates Code, is amended by adding
62	62	Section 1023.011 to read as follows:
63	63	Sec. 1023.011. NO LIABILITY OF JUDGE. (a) When a
64	64	guardianship is transferred from one county to another in
65	65	accordance with this chapter, a judge of the court from which the
66	66	guardianship is transferred may not be held civilly liable for any
67	67	injury, damage, or loss to the ward or the ward's estate that occurs
68	68	after the transfer.
69	69	(b) A judge of the court to which a guardianship is
70	70	transferred as described by Subsection (a) may not be held civilly
71	71	liable for any injury, damage, or loss to the ward or the ward's
72	72	estate that occurred before the transfer.
73	73	SECTION 4. Subchapter D, Chapter 1055, Estates Code, is
74	74	amended to read as follows:
75	75	SUBCHAPTER D. MEDIATION
76	76	Sec. 1055.151. MEDIATION OF CONTESTED GUARDIANSHIP
77	77	PROCEEDING. (a) Subject to Subsection (b), on [On] the written
78	78	agreement of the parties or on the court's own motion, the court may
79	79	refer a contested guardianship proceeding to mediation.
80	80	(b) If the court refers to mediation a proceeding under
81	81	Subsection (a) regarding the appointment of a guardian for a
82	82	proposed ward:
83	83	(1) a determination of incapacity of the proposed ward
84	84	may be an issue to be mediated, but the applicant for guardianship
85	85	must still prove to the court that the proposed ward is an
86	86	incapacitated person in accordance with the requirements of Chapter
87	87	1101; and
88	88	(2) all parties to the proceeding shall evaluate
89	89	during the mediation alternatives to guardianship and supports and
90	90	services available to the proposed ward, including whether the
91	91	supports and services and alternatives to guardianship would be
92	92	feasible to avoid the need for appointment of a guardian.
93	93	(c) The cost of mediation shall be paid by the parties to the
94	94	proceeding unless otherwise ordered by the court. If the parties
95	95	are unable to pay the cost of mediation, the court may refer the
96	96	parties to a local alternative dispute resolution center providing
97	97	services as part of a system for resolution of disputes established
98	98	under Section 152.002, Civil Practice and Remedies Code, if a
99	99	system has been established in the county, and the local center may
100	100	waive mediation costs as appropriate.
101	101	Sec. 1055.152. MEDIATED SETTLEMENT AGREEMENTS. (a) A
102	102	mediated settlement agreement is binding on the parties if the
103	103	agreement:
104	104	(1) provides, in a prominently displayed statement
105	105	that is in boldfaced type, in capital letters, or underlined, that
106	106	the agreement is not subject to revocation by the parties;
107	107	(2) is signed by each party to the agreement; and
108	108	(3) is signed by the party's attorney, if any, who is
109	109	present at the time the agreement is signed.
110	110	(b) [(c)] If a mediated settlement agreement meets the
111	111	requirements of this section, a party is entitled to judgment on the
112	112	mediated settlement agreement notwithstanding Rule 11, Texas Rules
113	113	of Civil Procedure, or another rule or law.
114	114	(c) [(d)] Notwithstanding Subsections (a) and (b) [and
115	115	(c)], a court may decline to enter a judgment on a mediated
116	116	settlement agreement if the court finds that the agreement is not in
117	117	the ward's or proposed ward's best interests.
118	118	SECTION 5. Section 1202.001, Estates Code, is amended by
119	119	adding Subsection (b-1) to read as follows:
120	120	(b-1) A guardianship of the person shall be settled and
121	121	closed when the court finds that the ward's incapacity needs can be
122	122	managed without the necessity for that continued guardianship by an
123	123	alternative to guardianship or with supports and services as
124	124	provided by Subchapter F.
125	125	SECTION 6. Chapter 1202, Estates Code, is amended by adding
126	126	Subchapter F to read as follows:
127	127	SUBCHAPTER F. TERMINATION OF GUARDIANSHIP OF THE PERSON ON FINDING
128	128	THAT THE WARD'S INCAPACITY NEEDS CAN BE MANAGED WITHOUT
129	129	GUARDIANSHIP
130	130	Sec. 1202.231. TERMINATION OF GUARDIANSHIP OF THE PERSON ON
131	131	FINDING THAT WARD'S INCAPACITY NEEDS CAN BE MANAGED WITHOUT
132	132	GUARDIANSHIP. (a) In addition to a court's possible termination of
133	133	a guardianship under Section 1202.001(b), on application by the
134	134	guardian of the person of a ward, a court investigator or guardian
135	135	ad litem appointed by the court, or another person interested in the
136	136	ward's welfare who has been granted permission by the court to
137	137	intervene under Section 1055.003, or on the court's own motion and
138	138	subject to Section 1202.232, the court may order that the
139	139	guardianship of the person of the ward terminate and be settled and
140	140	closed if the court makes the findings required under Section
141	141	1202.233.
142	142	Sec. 1202.232. PHYSICIAN'S LETTER OR CERTIFICATE REQUIRED.
143	143	(a) The court may not grant an order terminating a guardianship of
144	144	the person under Section 1202.231 unless the applicant presents to
145	145	the court or the court secures a written letter or certificate from
146	146	a physician licensed in this state that is dated:
147	147	(1) not earlier than the 120th day before the date the
148	148	application was filed or the date the court enters the court's
149	149	motion; or
150	150	(2) any time after the date the application was filed
151	151	or the date the court's motion was entered but before the date of
152	152	the hearing.
153	153	(b) A letter or certificate presented under Subsection (a)
154	154	must:
155	155	(1) describe the nature and degree of incapacity of
156	156	the ward, including the ward's medical history if reasonably
157	157	available;
158	158	(2) provide a medical prognosis for the ward
159	159	specifying the estimated severity of any incapacity;
160	160	(3) state how or in what manner the ward's ability to
161	161	make or communicate responsible decisions concerning the ward is
162	162	affected by the ward's physical or mental health;
163	163	(4) state whether any current medication affects the
164	164	ward's demeanor or the ward's ability to participate fully in a
165	165	court proceeding;
166	166	(5) describe the precise physical and mental
167	167	conditions underlying a diagnosis of senility, if applicable;
168	168	(6) describe feasible alternatives to guardianship
169	169	available to the ward that would avoid the need for the continued
170	170	appointment of a guardian of the person and state whether, in the
171	171	physician's opinion, those alternatives to guardianship meet the
172	172	following needs of the ward without the necessity for a continued
173	173	guardianship of the person:
174	174	(A) provision of food, clothing, and shelter for
175	175	the ward's own self;
176	176	(B) care for the ward's own physical health; and
177	177	(C) management of the ward's financial affairs;
178	178	(7) describe feasible supports and services available
179	179	to the ward that would avoid the need for the continued appointment
180	180	of a guardian of the person for the ward and state whether, in the
181	181	physician's opinion, the supports and services meet the following
182	182	needs of the ward without the necessity for a continued
183	183	guardianship of the person:
184	184	(A) provision of food, clothing, and shelter for
185	185	the ward's own self;
186	186	(B) care for the ward's own physical health; and
187	187	(C) management of the ward's financial affairs;
188	188	and
189	189	(8) include any other information required by the
190	190	court.
191	191	(c) If the court determines it is necessary, the court may
192	192	appoint the necessary physicians to examine the ward.
193	193	Sec. 1202.233. FINDINGS REQUIRED. Before ordering the
194	194	termination of a guardianship of the person under Section 1202.231,
195	195	the court must find by a preponderance of the evidence that:
196	196	(1) the ward remains a partially or completely
197	197	incapacitated person;
198	198	(2) the current nature and degree of the ward's
199	199	incapacity and the ward's needs can be managed without the
200	200	necessity of a continued guardianship of the person by:
201	201	(A) alternatives to guardianship that are
202	202	available to the ward and that are determined to be feasible; or
203	203	(B) supports and services that are available to
204	204	the ward and that are determined to be feasible; and
205	205	(3) termination of the guardianship of the person:
206	206	(A) is in the ward's best interest; and
207	207	(B) will encourage the development or
208	208	maintenance of maximum self-reliance and independence in the ward.
209	209	Sec. 1202.234. GENERAL REQUIREMENTS FOR ORDER. A court
210	210	order that terminates a guardianship of the person under this
211	211	subchapter must:
212	212	(1) contain the findings required under Section
213	213	1202.232;
214	214	(2) state the guardian's name;
215	215	(3) state the ward's name;
216	216	(4) specify:
217	217	(A) the supports and services that:
218	218	(i) will meet the ward's needs without the
219	219	continued necessity for guardianship of the person; and
220	220	(ii) justify the termination of that
221	221	guardianship; or
222	222	(B) the alternatives to guardianship that:
223	223	(i) will meet the ward's needs without the
224	224	continued necessity for guardianship of the person; and
225	225	(ii) justify the termination of that
226	226	guardianship;
227	227	(5) identify the persons or entities providing or that
228	228	will provide:
229	229	(A) the supports and services described by
230	230	Subdivision (4)(A); or
231	231	(B) alternatives to guardianship described by
232	232	Subdivision (4)(B);
233	233	(6) state that the guardian is required to:
234	234	(A) immediately settle the guardianship in
235	235	accordance with this title; and
236	236	(B) deliver all of the ward's remaining personal
237	237	effects and assets, if any, to the persons or entities identified
238	238	under Subdivision (5)(A) or (B), as applicable; and
239	239	(7) state that the clerk shall revoke letters of
240	240	guardianship of the person when the guardianship is finally settled
241	241	and closed.
242	242	Sec. 1202.235. APPOINTMENT OF ATTORNEY AD LITEM OR GUARDIAN
243	243	AD LITEM. A court may enter additional orders in the best interest
244	244	of the ward, including:
245	245	(1) requiring notice to interested persons;
246	246	(2) appointing a court investigator; or
247	247	(3) appointing an attorney ad litem or guardian ad
248	248	litem, or both, for the ward.
249	249	SECTION 7. Chapter 155, Government Code, is amended by
250	250	adding Subchapter G to read as follows:
251	251	SUBCHAPTER G. GUARDIANSHIP MEDIATION TRAINING
252	252	Sec. 155.301. TRAINING. (a) The office by rule shall
253	253	establish a training course with at least 24 hours of training for
254	254	persons facilitating mediations under Title 3, Estates Code, that
255	255	may be provided by a mediation training provider approved by the
256	256	office. A mediation training provider shall adhere to the
257	257	established curriculum in providing the training course.
258	258	(b) This section does not require a mediator facilitating a
259	259	mediation under Title 3, Estates Code, to attend or be certified
260	260	under a training course established under Subsection (a).
261	261	SECTION 8. The changes in law made by this Act apply to a
262	262	guardianship created before, on, or after the effective date of
263	263	this Act.
264	264	SECTION 9. The Office of Court Administration of the Texas
265	265	Judicial System is required to implement a provision of this Act
266	266	only if the legislature appropriates money specifically for that
267	267	purpose. If the legislature does not appropriate money specifically
268	268	for that purpose, the office may, but is not required to, implement
269	269	a provision of this Act using other appropriations available for
270	270	that purpose.
271	271	SECTION 10. This Act takes effect September 1, 2021.