Texas 2021 - 87th Regular

Texas Senate Bill SB960 Compare Versions

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

Old	New	Differences
1	1	87R6714 KFF-F
2	2	By: Zaffirini S.B. No. 960
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to a pilot program that allows counties to establish
8	8	public guardians for certain incapacitated persons.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Chapter 1104, Estates Code, is amended by adding
11	11	Subchapter G-1 to read as follows:
12	12	SUBCHAPTER G-1. PILOT PROGRAM TO ESTABLISH PUBLIC GUARDIANS
13	13	Sec. 1104.326. DEFINITIONS. In this subchapter:
14	14	(1) "Office," unless the context requires otherwise,
15	15	means an office of public guardian established under the pilot
16	16	program.
17	17	(2) "Participating county" means a county that
18	18	participates in the pilot program.
19	19	(3) "Pilot program" means the pilot program
20	20	established under Section 1104.327.
21	21	Sec. 1104.327. ESTABLISHMENT OF PILOT PROGRAM; PUBLIC
22	22	GUARDIANS. (a) Not later than January 1, 2022, the Office of Court
23	23	Administration of the Texas Judicial System shall develop and
24	24	implement a pilot program under which the office will assist one or
25	25	more counties that elect to participate in the program to establish
26	26	public guardians in accordance with this subchapter. The program
27	27	must require, if a county elects to participate in the program, that
28	28	the commissioners court of the county by order:
29	29	(1) create an office of public guardian to provide
30	30	guardianship services described by Section 1104.334 to
31	31	incapacitated persons; or
32	32	(2) enter into an agreement with a person operating a
33	33	nonprofit guardianship program or private professional
34	34	guardianship program located in the county or in an adjacent county
35	35	to act as a public guardian by providing guardianship services
36	36	described by Section 1104.334 to incapacitated persons.
37	37	(b) Subject to Subsection (c) and Section 1104.328, the
38	38	commissioners court of a participating county shall appoint an
39	39	individual as public guardian to administer the office of public
40	40	guardian established under Subsection (a)(1) and may employ or
41	41	authorize the public guardian to employ personnel necessary to
42	42	perform the duties of the office, including personnel who will
43	43	represent the interests of a ward as a guardian on behalf of the
44	44	office if approved by the commissioners court.
45	45	(c) The commissioners court of a participating county may
46	46	enter into an agreement with an individual to act as public guardian
47	47	under Subsection (b) on a part-time basis with appropriate
48	48	compensation if:
49	49	(1) the commissioners court determines a full-time
50	50	appointment does not serve the needs of the county; and
51	51	(2) the individual who is appointed on a part-time
52	52	basis is not employed in or does not hold another position that
53	53	presents a conflict of interest.
54	54	(d) The commissioners courts of two or more participating
55	55	counties may collectively enter into an agreement:
56	56	(1) to create and fund an office of public guardian for
57	57	purposes of Subsection (a)(1) and to appoint the same individual as
58	58	public guardian to that office under Subsection (b); or
59	59	(2) with a person operating a guardianship program
60	60	described by Subsection (a)(2) to serve as a public guardian for
61	61	purposes of that subdivision.
62	62	(e) An individual appointed as public guardian under
63	63	Subsection (b) serves a term that expires on September 1, 2023.
64	64	Sec. 1104.328. QUALIFICATIONS OF PUBLIC GUARDIAN. To be
65	65	appointed as public guardian under Section 1104.327(b), an
66	66	individual must:
67	67	(1) be a licensed attorney or be certified under
68	68	Subchapter C, Chapter 155, Government Code; and
69	69	(2) have demonstrable guardianship experience.
70	70	Sec. 1104.329. CONFLICT OF INTEREST. (a) Except as
71	71	provided by Subsection (b), an office or a public guardian must be
72	72	independent from providers of services to wards and proposed wards
73	73	and may not directly provide housing, medical, legal, or other
74	74	direct, non-surrogate decision-making services to a ward or
75	75	proposed ward, unless approved by the court.
76	76	(b) An office or a public guardian may provide money
77	77	management services described by Section 531.125, Government Code,
78	78	or other representative payee services to a ward or proposed ward.
79	79	Sec. 1104.330. COMPENSATION. A person appointed or acting
80	80	as public guardian under Section 1104.327 shall receive
81	81	compensation as set by the commissioners court and is not entitled
82	82	to compensation under Subchapter A, Chapter 1155, unless approved
83	83	by the court or the person is appointed as guardian of a ward in
84	84	accordance with Section 1104.334(a)(2)(B).
85	85	Sec. 1104.331. BOND REQUIREMENT. (a) A public guardian
86	86	shall file with the court clerk a general bond in an amount fixed by
87	87	the commissioners court payable to the participating county and
88	88	issued by a surety company approved by the county judge. The bond
89	89	must be conditioned on the faithful performance by the person of the
90	90	person's duties and, if the public guardian administers an office,
91	91	the office's duties.
92	92	(b) The bond required by this section satisfies any bond
93	93	required under Chapter 1105.
94	94	Sec. 1104.332. VACANCY. If an individual appointed as
95	95	public guardian under Section 1104.327(b) vacates the position, the
96	96	commissioners court of the participating county shall appoint,
97	97	subject to Section 1104.328, an individual to serve as public
98	98	guardian for the unexpired term.
99	99	Sec. 1104.333. POWERS AND DUTIES. (a) An office or a
100	100	public guardian shall:
101	101	(1) if applicable, evaluate the financial status of a
102	102	proposed ward to determine whether the proposed ward is eligible to
103	103	have the office or public guardian appointed guardian of the ward
104	104	under Section 1104.334(a)(2)(A); and
105	105	(2) serve as guardian of the person or of the estate of
106	106	a ward, or both, on appointment by a court in accordance with the
107	107	requirements of this title.
108	108	(b) In connection with a financial evaluation under
109	109	Subsection (a)(1) and on the request of an office or a public
110	110	guardian, a court with jurisdiction over the guardianship
111	111	proceeding may order the release of public and private records,
112	112	including otherwise confidential records, to the office or public
113	113	guardian.
114	114	(c) Notwithstanding Section 552.261, Government Code, a
115	115	state agency may not charge an office or a public guardian for
116	116	providing the office or public guardian with a copy of public
117	117	information requested from the agency by the office or public
118	118	guardian.
119	119	Sec. 1104.334. APPOINTMENT OF OFFICE OR PUBLIC GUARDIAN AS
120	120	GUARDIAN. (a) In accordance with applicable law, including
121	121	Subchapter C, Chapter 1101, a court may appoint an office or a
122	122	public guardian to serve as guardian of the person or of the estate
123	123	of a ward, or both, if:
124	124	(1) on the date the guardianship application is filed,
125	125	the ward resides in or is located in a participating county served
126	126	by an office or a public guardian; and
127	127	(2) the court finds that the ward:
128	128	(A) does not have sufficient assets or other
129	129	resources to pay a private professional guardian to serve as the
130	130	ward's guardian and the appointment is in the ward's best interest;
131	131	or
132	132	(B) has sufficient assets or other resources to
133	133	pay a private professional guardian to serve as the ward's
134	134	guardian, the appointment is in the ward's best interest, and:
135	135	(i) the ward's family members who are
136	136	eligible for appointment as the ward's guardian agree to the
137	137	appointment of an office or a public guardian to serve as the ward's
138	138	guardian or are unable to agree on the person or persons that should
139	139	be appointed as the ward's guardian; or
140	140	(ii) the ward does not have a family member,
141	141	friend, or other suitable person willing and able to serve as the
142	142	ward's guardian.
143	143	(b) For purposes of Subsection (a)(2), the determination of
144	144	a ward's ability to pay a private professional guardian is
145	145	dependent on:
146	146	(1) the nature, extent, and liquidity of the ward's
147	147	assets;
148	148	(2) the ward's disposable net income, including income
149	149	of a recipient of medical assistance that is used to pay expenses
150	150	under Section 1155.202(a);
151	151	(3) the nature of the guardianship;
152	152	(4) the type, duration, and complexity of services
153	153	required by the ward; and
154	154	(5) additional, foreseeable expenses.
155	155	(c) The number of appointments of an office under the pilot
156	156	program may not exceed 35 wards for each guardian representing the
157	157	interests of wards on behalf of the office.
158	158	(d) If each guardian representing the interests of wards on
159	159	behalf of an office reaches the limitation provided by Subsection
160	160	(c), the office shall immediately give notice to the courts.
161	161	Sec. 1104.335. CONFIDENTIALITY AND DISCLOSURE OF
162	162	INFORMATION. (a) All files, reports, records, communications, or
163	163	working papers used or developed by an office or a public guardian
164	164	in the performance of duties relating to a financial evaluation
165	165	under Section 1104.333(a)(1) or the provision of guardianship
166	166	services are confidential and not subject to disclosure under
167	167	Chapter 552, Government Code.
168	168	(b) Confidential information may be disclosed only for a
169	169	purpose consistent with this subchapter, as required by other state
170	170	or federal law, or as necessary to enable an office or a public
171	171	guardian to exercise the powers and duties as guardian of the person
172	172	or of the estate of a ward, or both.
173	173	(c) A court on its own motion or on the motion of an
174	174	interested person may order disclosure of confidential information
175	175	only if:
176	176	(1) a hearing on the motion is conducted;
177	177	(2) notice of the hearing is served on the office or
178	178	public guardian and each interested person; and
179	179	(3) the court determines after the hearing and an in
180	180	camera review of the information that disclosure is essential to
181	181	the administration of justice and will not endanger the life or
182	182	safety of any individual who:
183	183	(A) is being assessed for guardianship services;
184	184	(B) is a ward of the office or public guardian; or
185	185	(C) provides services to a ward of the office or
186	186	public guardian.
187	187	(d) The Office of Court Administration of the Texas Judicial
188	188	System shall establish policies and procedures for the exchange of
189	189	information between offices, public guardians, and other
190	190	appropriate governmental entities, as necessary for offices,
191	191	public guardians, and governmental entities to properly execute
192	192	their respective duties and responsibilities relating to
193	193	guardianship services or other needed services for a ward. An
194	194	exchange of information under this subsection does not constitute a
195	195	release for purposes of waiving the confidentiality of the
196	196	information exchanged.
197	197	(e) To the extent consistent with policies and procedures
198	198	adopted by an office or a public guardian, the office or public
199	199	guardian on request may release confidential information in the
200	200	record of an individual who is a former ward of the office or public
201	201	guardian to:
202	202	(1) the individual;
203	203	(2) the individual's guardian; or
204	204	(3) an executor or administrator of the individual's
205	205	estate.
206	206	(f) Before releasing confidential information under
207	207	Subsection (e), an office or a public guardian shall edit the
208	208	information to protect the identity of any individual whose life or
209	209	safety may be endangered by the release. A release of information
210	210	under Subsection (e) does not constitute a release for purposes of
211	211	waiving the confidentiality of the information released.
212	212	Sec. 1104.336. CERTAIN ADMINISTRATIVE COSTS. (a) If an
213	213	office or a public guardian is appointed guardian of the person or
214	214	of the estate of a ward, or both, the administrative costs of the
215	215	guardianship services provided to the ward may not be charged to the
216	216	ward's estate unless the court determines, subject to Subsection
217	217	(b), that the ward is financially able to pay all or part of the
218	218	costs.
219	219	(b) A court shall measure a ward's ability to pay for costs
220	220	under Subsection (a) by whether the ward has sufficient assets or
221	221	other resources to pay a private professional guardian to serve as
222	222	the ward's guardian in accordance with Section 1104.334(b).
223	223	Sec. 1104.337. COSTS OF GUARDIANSHIP PROCEEDING GENERALLY.
224	224	Notwithstanding any other law requiring the payment of court costs
225	225	in a guardianship proceeding and in accordance with Section
226	226	1155.151(a-2)(5), an office is not required to pay court costs on
227	227	the filing of or during a guardianship proceeding.
228	228	Sec. 1104.338. CONTRACT WITH HEALTH AND HUMAN SERVICES
229	229	COMMISSION TO PROVIDE GUARDIANSHIP SERVICES. A contract under
230	230	Section 161.103, Human Resources Code, may allow for the provision
231	231	of guardianship services by an office.
232	232	Sec. 1104.339. FUNDING USING SUPPLEMENTAL COURT-INITIATED
233	233	GUARDIANSHIP FEE; MONITORING. (a) Notwithstanding Section
234	234	118.067, Local Government Code, if a county participates in the
235	235	pilot program, the "supplemental court-initiated guardianship fee"
236	236	under Section 118.052(2)(E), Local Government Code, may be used to
237	237	support guardianship services provided by public guardians.
238	238	(b) The Office of Court Administration of the Texas Judicial
239	239	System shall monitor participating counties to ensure money is
240	240	appropriately used in compliance with this section.
241	241	Sec. 1104.340. ACCESS TO CRIMINAL HISTORY RECORD
242	242	INFORMATION; AUTHORITY TO CHARGE FEE. (a) The clerk of a
243	243	participating county having venue of the proceeding for the
244	244	appointment of a guardian shall obtain criminal history record
245	245	information that is maintained by the Department of Public Safety
246	246	or the Federal Bureau of Investigation identification division and
247	247	may charge a fee in the manner and amount provided by Section
248	248	1104.402 relating to:
249	249	(1) a public guardian appointed under Section
250	250	1104.327(b);
251	251	(2) each person who represents or plans to represent
252	252	the interests of a ward as a guardian on behalf of an office; or
253	253	(3) each person employed by an office who will:
254	254	(A) have personal contact with a ward or proposed
255	255	ward;
256	256	(B) exercise control over and manage a ward's
257	257	estate; or
258	258	(C) perform any duties with respect to the
259	259	management of a ward's estate.
260	260	(b) The Department of Public Safety shall provide a report
261	261	requested under this section to the clerk in the manner provided by
262	262	Section 411.1386, Government Code.
263	263	Sec. 1104.341. USE OF CRIMINAL HISTORY RECORD INFORMATION.
264	264	The court shall use the information obtained under Section 1104.340
265	265	only in determining whether to appoint, remove, or continue the
266	266	appointment of an office.
267	267	Sec. 1104.342. ADDITION TO VERIFICATION OF ACCOUNT AND
268	268	STATEMENT REGARDING TAXES AND STATUS AS GUARDIAN. In addition to
269	269	the other requirements of Section 1163.005, an affidavit attached
270	270	to an account under that section must state whether the public
271	271	guardian or an individual certified under Subchapter C, Chapter
272	272	155, Government Code, who is providing guardianship services to the
273	273	ward and who is swearing to the account on the guardian's behalf, is
274	274	or has been the subject of an investigation conducted by the
275	275	Judicial Branch Certification Commission during the accounting
276	276	period.
277	277	Sec. 1104.343. GUARDIAN'S AFFIDAVIT ON ANNUAL REPORT. In
278	278	addition to the other requirements of Section 1163.101(c), an
279	279	affidavit under that subsection must state whether the public
280	280	guardian or an individual certified under Subchapter C, Chapter
281	281	155, Government Code, who is providing guardianship services to the
282	282	ward and who is filing the affidavit on the guardian's behalf, is or
283	283	has been the subject of an investigation conducted by the Judicial
284	284	Branch Certification Commission during the preceding year.
285	285	Sec. 1104.344. MINIMUM STANDARDS FOR GUARDIANSHIP
286	286	SERVICES. The Office of Court Administration of the Texas Judicial
287	287	System shall consult with the Judicial Branch Certification
288	288	Commission to adopt minimum standards for the provision of
289	289	guardianship services by offices under the pilot program.
290	290	Sec. 1104.345. CERTIFICATION OF CERTAIN OFFICE PERSONNEL.
291	291	An individual who will provide guardianship services to a ward of an
292	292	office or represent the interests of a ward as a guardian on behalf
293	293	of a public guardian must hold a certificate issued under
294	294	Subchapter C, Chapter 155, Government Code.
295	295	Sec. 1104.346. REPORTS BY OFFICES. Not later than
296	296	September 1, 2022, each office of public guardian established under
297	297	the pilot program shall provide to the Office of Court
298	298	Administration of the Texas Judicial System a report containing:
299	299	(1) the number of wards served by the office under the
300	300	pilot program;
301	301	(2) the total amount of any money received from this
302	302	state for the provision of guardianship services; and
303	303	(3) the amount of money received from any other public
304	304	source, including a participating county or the federal government,
305	305	for the provision of guardianship services, reported by source, and
306	306	the total amount of money received from those public sources.
307	307	Sec. 1104.347. REPORT ON PILOT PROGRAM. (a) Not later than
308	308	December 1, 2022, the Office of Court Administration of the Texas
309	309	Judicial System shall submit a report to the governor and the
310	310	legislature that contains an evaluation of the pilot program,
311	311	including the establishment and operation of offices of public
312	312	guardians under the program and the provision of guardianship
313	313	services by the offices. The report must include:
314	314	(1) an analysis of costs and offsetting savings or
315	315	other benefits to the state as a result of the establishment and
316	316	operation of offices and public guardians under the program; and
317	317	(2) recommendations for legislation, if any.
318	318	(b) If it is cost-effective and feasible, the Office of
319	319	Court Administration of the Texas Judicial System may contract with
320	320	an appropriate research or public policy entity with expertise in
321	321	gerontology, disabilities, and public administration to conduct
322	322	the analysis described by Subsection (a)(1).
323	323	Sec. 1104.348. RULES. The supreme court, in consultation
324	324	with the Office of Court Administration of the Texas Judicial
325	325	System and the presiding judge of the statutory probate courts
326	326	elected under Section 25.0022, Government Code, shall adopt rules
327	327	necessary to implement the pilot program.
328	328	Sec. 1104.349. EXPIRATION. The pilot program terminates and
329	329	this subchapter expires on September 1, 2023.
330	330	SECTION 2. Not later than January 1, 2022, the supreme court
331	331	shall adopt rules necessary to develop and implement the pilot
332	332	program required by Subchapter G-1, Chapter 1104, Estates Code, as
333	333	added by this Act, including rules governing:
334	334	(1) the transfer of a guardianship of the person or of
335	335	the estate of a ward, or both, if appropriate, to an office of
336	336	public guardian established under that program or a public guardian
337	337	contracted under that program; and
338	338	(2) the transfer or continuation of a guardianship of
339	339	the person or of the estate of a ward, or both, if appropriate, from
340	340	an office of public guardian established under the program or a
341	341	public guardian contracted under the program on the expiration of
342	342	the program.
343	343	SECTION 3. This Act takes effect September 1, 2021.