87R8635 KFF-F
By: Metcalf H.B. No. 3394
A BILL TO BE ENTITLED
AN ACT
relating to determining the incapacity of a proposed guardian or
guardian.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1101.002, Estates Code, is amended to
read as follows:
Sec. 1101.002. CONTENTS OF APPLICATION; CONFIDENTIALITY OF
CERTAIN ADDRESSES. An application filed under Section 1101.001 or
1203.0521 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;
(2) a copy of the protective order is attached to the
application as an exhibit;
(3) the application states the county in which the
person resides;
(4) the application indicates the place where notice
to or the issuance and service of citation on the person may be made
or sent; and
(5) the application is accompanied by a request for an
order under Section 1051.201 specifying the manner of issuance,
service, and return of citation or notice on the person.
SECTION 2. Subchapter B, Chapter 1203, Estates Code, is
amended by adding Section 1203.0521 to read as follows:
Sec. 1203.0521. DETERMINATION REGARDING PROPOSED
GUARDIAN'S OR GUARDIAN'S INCAPACITY. (a) The court on its own
motion may or on the written application of an interested person
shall order an investigation into whether a proposed guardian or
guardian appointed by the court under this title is an
incapacitated person for purposes of appointing a guardian or
Section 1203.052(a)(5)(A), as applicable.
(b) Subject to Section 1101.002, an application filed under
this section must be sworn to by the applicant and state:
(1) the proposed ward's or ward's name, sex, date of
birth, and address;
(2) the proposed guardian's or guardian's name, sex,
date of birth, and address;
(3) the nature and degree of the proposed guardian's or
guardian's alleged incapacity;
(4) the facts requiring an investigation into the
proposed guardian's or guardian's capacity; and
(5) the applicant's interest in the proposed ward or
ward.
(c) The court on its own motion may or on receipt of an
application under this section shall appoint a guardian ad litem or
court investigator to investigate the conditions and circumstances
of the proposed guardian or guardian, including any facts alleged
in the application that would give rise to a finding of incapacity,
to determine whether there is probable cause to believe the
proposed guardian or guardian is an incapacitated person. The
court's order appointing the guardian ad litem or court
investigator must include a statement that the proposed guardian or
guardian has the right to petition the court to have the appointment
set aside.
(d) The guardian ad litem or court investigator shall file
with the court a report of the findings and conclusions of the
investigation conducted under Subsection (c).
(e) If a guardian ad litem or court investigator, after an
investigation as prescribed by this section, determines that
probable cause exists to believe the proposed guardian or guardian
is an incapacitated person, the guardian ad litem or court
investigator, as applicable, shall file with the court an
application recommending an independent examination of the
proposed guardian's or guardian's capacity by a physician licensed
in this state.
(f) If the court determines it is necessary, the court may
appoint one or more physicians licensed in this state to examine the
proposed guardian or guardian. The court must make its
determination with respect to the necessity for a physician's
examination of the proposed guardian or guardian at a hearing held
for that purpose. Not later than the fourth day before the date of
the hearing, the court shall give to the proposed guardian or
guardian written notice specifying the purpose, date, and time of
the hearing.
(g) A physician who examines the proposed guardian or
guardian under this section shall return to the court a written
letter or certificate from the physician that describes the nature,
degree, and severity of the proposed guardian's or guardian's
incapacity, if any, including any functional deficits regarding the
proposed guardian's or guardian's ability to perform the duties a
guardian owes to a ward. A written letter or certificate by a
physician finding incapacity under this subsection may be relied on
by the court only for purposes of making a determination of
incapacity:
(1) under Section 1203.052(a)(5)(A);
(2) with regard to the appointment of a guardian for
the proposed ward; or
(3) for creating a guardianship over the proposed
guardian or guardian.
(h) Notwithstanding Section 1155.151 and except as provided
by Subsection (j), the court may order court costs associated with
making a determination relating to incapacity under this section to
be paid by the applicant who requested the investigation under this
section if the proposed guardian or guardian is determined not to be
an incapacitated person.
(i) Notwithstanding Section 1155.151 and except as provided
by Subsection (j), the court may order court costs associated with
making a determination relating to incapacity under this section to
be paid by the proposed guardian or guardian who is the subject of
an investigation conducted under Subsection (c) if the proposed
guardian or guardian is determined to be an incapacitated person.
(j) If the applicant, proposed guardian, or guardian
ordered to pay court costs under Subsection (h) or (i) files, on the
person's own behalf, an affidavit of inability to pay court costs
under Rule 145, Texas Rules of Civil Procedure, that shows the
person is unable to afford the costs, the court shall order costs be
paid out of the county treasury.
SECTION 3. The changes in law made by this Act apply to:
(1) a guardianship created before, on, or after the
effective date of this Act; and
(2) an application for a guardianship pending on, or
filed on or after, the effective date of this Act.
SECTION 4. This Act takes effect September 1, 2021.