87R6714 KFF-F
By: Zaffirini S.B. No. 960
A BILL TO BE ENTITLED
AN ACT
relating to a pilot program that allows counties to establish
public guardians for certain incapacitated persons.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 1104, Estates Code, is amended by adding
Subchapter G-1 to read as follows:
SUBCHAPTER G-1. PILOT PROGRAM TO ESTABLISH PUBLIC GUARDIANS
Sec. 1104.326. DEFINITIONS. In this subchapter:
(1) "Office," unless the context requires otherwise,
means an office of public guardian established under the pilot
program.
(2) "Participating county" means a county that
participates in the pilot program.
(3) "Pilot program" means the pilot program
established under Section 1104.327.
Sec. 1104.327. ESTABLISHMENT OF PILOT PROGRAM; PUBLIC
GUARDIANS. (a) Not later than January 1, 2022, the Office of Court
Administration of the Texas Judicial System shall develop and
implement a pilot program under which the office will assist one or
more counties that elect to participate in the program to establish
public guardians in accordance with this subchapter. The program
must require, if a county elects to participate in the program, that
the commissioners court of the county by order:
(1) create an office of public guardian to provide
guardianship services described by Section 1104.334 to
incapacitated persons; or
(2) enter into an agreement with a person operating a
nonprofit guardianship program or private professional
guardianship program located in the county or in an adjacent county
to act as a public guardian by providing guardianship services
described by Section 1104.334 to incapacitated persons.
(b) Subject to Subsection (c) and Section 1104.328, the
commissioners court of a participating county shall appoint an
individual as public guardian to administer the office of public
guardian established under Subsection (a)(1) and may employ or
authorize the public guardian to employ personnel necessary to
perform the duties of the office, including personnel who will
represent the interests of a ward as a guardian on behalf of the
office if approved by the commissioners court.
(c) The commissioners court of a participating county may
enter into an agreement with an individual to act as public guardian
under Subsection (b) on a part-time basis with appropriate
compensation if:
(1) the commissioners court determines a full-time
appointment does not serve the needs of the county; and
(2) the individual who is appointed on a part-time
basis is not employed in or does not hold another position that
presents a conflict of interest.
(d) The commissioners courts of two or more participating
counties may collectively enter into an agreement:
(1) to create and fund an office of public guardian for
purposes of Subsection (a)(1) and to appoint the same individual as
public guardian to that office under Subsection (b); or
(2) with a person operating a guardianship program
described by Subsection (a)(2) to serve as a public guardian for
purposes of that subdivision.
(e) An individual appointed as public guardian under
Subsection (b) serves a term that expires on September 1, 2023.
Sec. 1104.328. QUALIFICATIONS OF PUBLIC GUARDIAN. To be
appointed as public guardian under Section 1104.327(b), an
individual must:
(1) be a licensed attorney or be certified under
Subchapter C, Chapter 155, Government Code; and
(2) have demonstrable guardianship experience.
Sec. 1104.329. CONFLICT OF INTEREST. (a) Except as
provided by Subsection (b), an office or a public guardian must be
independent from providers of services to wards and proposed wards
and may not directly provide housing, medical, legal, or other
direct, non-surrogate decision-making services to a ward or
proposed ward, unless approved by the court.
(b) An office or a public guardian may provide money
management services described by Section 531.125, Government Code,
or other representative payee services to a ward or proposed ward.
Sec. 1104.330. COMPENSATION. A person appointed or acting
as public guardian under Section 1104.327 shall receive
compensation as set by the commissioners court and is not entitled
to compensation under Subchapter A, Chapter 1155, unless approved
by the court or the person is appointed as guardian of a ward in
accordance with Section 1104.334(a)(2)(B).
Sec. 1104.331. BOND REQUIREMENT. (a) A public guardian
shall file with the court clerk a general bond in an amount fixed by
the commissioners court payable to the participating county and
issued by a surety company approved by the county judge. The bond
must be conditioned on the faithful performance by the person of the
person's duties and, if the public guardian administers an office,
the office's duties.
(b) The bond required by this section satisfies any bond
required under Chapter 1105.
Sec. 1104.332. VACANCY. If an individual appointed as
public guardian under Section 1104.327(b) vacates the position, the
commissioners court of the participating county shall appoint,
subject to Section 1104.328, an individual to serve as public
guardian for the unexpired term.
Sec. 1104.333. POWERS AND DUTIES. (a) An office or a
public guardian shall:
(1) if applicable, evaluate the financial status of a
proposed ward to determine whether the proposed ward is eligible to
have the office or public guardian appointed guardian of the ward
under Section 1104.334(a)(2)(A); and
(2) serve as guardian of the person or of the estate of
a ward, or both, on appointment by a court in accordance with the
requirements of this title.
(b) In connection with a financial evaluation under
Subsection (a)(1) and on the request of an office or a public
guardian, a court with jurisdiction over the guardianship
proceeding may order the release of public and private records,
including otherwise confidential records, to the office or public
guardian.
(c) Notwithstanding Section 552.261, Government Code, a
state agency may not charge an office or a public guardian for
providing the office or public guardian with a copy of public
information requested from the agency by the office or public
guardian.
Sec. 1104.334. APPOINTMENT OF OFFICE OR PUBLIC GUARDIAN AS
GUARDIAN. (a) In accordance with applicable law, including
Subchapter C, Chapter 1101, a court may appoint an office or a
public guardian to serve as guardian of the person or of the estate
of a ward, or both, if:
(1) on the date the guardianship application is filed,
the ward resides in or is located in a participating county served
by an office or a public guardian; and
(2) the court finds that the ward:
(A) does not have sufficient assets or other
resources to pay a private professional guardian to serve as the
ward's guardian and the appointment is in the ward's best interest;
or
(B) has sufficient assets or other resources to
pay a private professional guardian to serve as the ward's
guardian, the appointment is in the ward's best interest, and:
(i) the ward's family members who are
eligible for appointment as the ward's guardian agree to the
appointment of an office or a public guardian to serve as the ward's
guardian or are unable to agree on the person or persons that should
be appointed as the ward's guardian; or
(ii) the ward does not have a family member,
friend, or other suitable person willing and able to serve as the
ward's guardian.
(b) For purposes of Subsection (a)(2), the determination of
a ward's ability to pay a private professional guardian is
dependent on:
(1) the nature, extent, and liquidity of the ward's
assets;
(2) the ward's disposable net income, including income
of a recipient of medical assistance that is used to pay expenses
under Section 1155.202(a);
(3) the nature of the guardianship;
(4) the type, duration, and complexity of services
required by the ward; and
(5) additional, foreseeable expenses.
(c) The number of appointments of an office under the pilot
program may not exceed 35 wards for each guardian representing the
interests of wards on behalf of the office.
(d) If each guardian representing the interests of wards on
behalf of an office reaches the limitation provided by Subsection
(c), the office shall immediately give notice to the courts.
Sec. 1104.335. CONFIDENTIALITY AND DISCLOSURE OF
INFORMATION. (a) All files, reports, records, communications, or
working papers used or developed by an office or a public guardian
in the performance of duties relating to a financial evaluation
under Section 1104.333(a)(1) or the provision of guardianship
services are confidential and not subject to disclosure under
Chapter 552, Government Code.
(b) Confidential information may be disclosed only for a
purpose consistent with this subchapter, as required by other state
or federal law, or as necessary to enable an office or a public
guardian to exercise the powers and duties as guardian of the person
or of the estate of a ward, or both.
(c) A court on its own motion or on the motion of an
interested person may order disclosure of confidential information
only if:
(1) a hearing on the motion is conducted;
(2) notice of the hearing is served on the office or
public guardian and each interested person; and
(3) the court determines after the hearing and an in
camera review of the information that disclosure is essential to
the administration of justice and will not endanger the life or
safety of any individual who:
(A) is being assessed for guardianship services;
(B) is a ward of the office or public guardian; or
(C) provides services to a ward of the office or
public guardian.
(d) The Office of Court Administration of the Texas Judicial
System shall establish policies and procedures for the exchange of
information between offices, public guardians, and other
appropriate governmental entities, as necessary for offices,
public guardians, and governmental entities to properly execute
their respective duties and responsibilities relating to
guardianship services or other needed services for a ward. An
exchange of information under this subsection does not constitute a
release for purposes of waiving the confidentiality of the
information exchanged.
(e) To the extent consistent with policies and procedures
adopted by an office or a public guardian, the office or public
guardian on request may release confidential information in the
record of an individual who is a former ward of the office or public
guardian to:
(1) the individual;
(2) the individual's guardian; or
(3) an executor or administrator of the individual's
estate.
(f) Before releasing confidential information under
Subsection (e), an office or a public guardian shall edit the
information to protect the identity of any individual whose life or
safety may be endangered by the release. A release of information
under Subsection (e) does not constitute a release for purposes of
waiving the confidentiality of the information released.
Sec. 1104.336. CERTAIN ADMINISTRATIVE COSTS. (a) If an
office or a public guardian is appointed guardian of the person or
of the estate of a ward, or both, the administrative costs of the
guardianship services provided to the ward may not be charged to the
ward's estate unless the court determines, subject to Subsection
(b), that the ward is financially able to pay all or part of the
costs.
(b) A court shall measure a ward's ability to pay for costs
under Subsection (a) by whether the ward has sufficient assets or
other resources to pay a private professional guardian to serve as
the ward's guardian in accordance with Section 1104.334(b).
Sec. 1104.337. COSTS OF GUARDIANSHIP PROCEEDING GENERALLY.
Notwithstanding any other law requiring the payment of court costs
in a guardianship proceeding and in accordance with Section
1155.151(a-2)(5), an office is not required to pay court costs on
the filing of or during a guardianship proceeding.
Sec. 1104.338. CONTRACT WITH HEALTH AND HUMAN SERVICES
COMMISSION TO PROVIDE GUARDIANSHIP SERVICES. A contract under
Section 161.103, Human Resources Code, may allow for the provision
of guardianship services by an office.
Sec. 1104.339. FUNDING USING SUPPLEMENTAL COURT-INITIATED
GUARDIANSHIP FEE; MONITORING. (a) Notwithstanding Section
118.067, Local Government Code, if a county participates in the
pilot program, the "supplemental court-initiated guardianship fee"
under Section 118.052(2)(E), Local Government Code, may be used to
support guardianship services provided by public guardians.
(b) The Office of Court Administration of the Texas Judicial
System shall monitor participating counties to ensure money is
appropriately used in compliance with this section.
Sec. 1104.340. ACCESS TO CRIMINAL HISTORY RECORD
INFORMATION; AUTHORITY TO CHARGE FEE. (a) The clerk of a
participating county having venue of the proceeding for the
appointment of a guardian shall obtain criminal history record
information that is maintained by the Department of Public Safety
or the Federal Bureau of Investigation identification division and
may charge a fee in the manner and amount provided by Section
1104.402 relating to:
(1) a public guardian appointed under Section
1104.327(b);
(2) each person who represents or plans to represent
the interests of a ward as a guardian on behalf of an office; or
(3) each person employed by an office who will:
(A) have personal contact with a ward or proposed
ward;
(B) exercise control over and manage a ward's
estate; or
(C) perform any duties with respect to the
management of a ward's estate.
(b) The Department of Public Safety shall provide a report
requested under this section to the clerk in the manner provided by
Section 411.1386, Government Code.
Sec. 1104.341. USE OF CRIMINAL HISTORY RECORD INFORMATION.
The court shall use the information obtained under Section 1104.340
only in determining whether to appoint, remove, or continue the
appointment of an office.
Sec. 1104.342. ADDITION TO VERIFICATION OF ACCOUNT AND
STATEMENT REGARDING TAXES AND STATUS AS GUARDIAN. In addition to
the other requirements of Section 1163.005, an affidavit attached
to an account under that section must state whether the public
guardian or an individual certified under Subchapter C, Chapter
155, Government Code, who is providing guardianship services to the
ward and who is swearing to the account on the guardian's behalf, is
or has been the subject of an investigation conducted by the
Judicial Branch Certification Commission during the accounting
period.
Sec. 1104.343. GUARDIAN'S AFFIDAVIT ON ANNUAL REPORT. In
addition to the other requirements of Section 1163.101(c), an
affidavit under that subsection must state whether the public
guardian or an individual certified under Subchapter C, Chapter
155, Government Code, who is providing guardianship services to the
ward and who is filing the affidavit on the guardian's behalf, is or
has been the subject of an investigation conducted by the Judicial
Branch Certification Commission during the preceding year.
Sec. 1104.344. MINIMUM STANDARDS FOR GUARDIANSHIP
SERVICES. The Office of Court Administration of the Texas Judicial
System shall consult with the Judicial Branch Certification
Commission to adopt minimum standards for the provision of
guardianship services by offices under the pilot program.
Sec. 1104.345. CERTIFICATION OF CERTAIN OFFICE PERSONNEL.
An individual who will provide guardianship services to a ward of an
office or represent the interests of a ward as a guardian on behalf
of a public guardian must hold a certificate issued under
Subchapter C, Chapter 155, Government Code.
Sec. 1104.346. REPORTS BY OFFICES. Not later than
September 1, 2022, each office of public guardian established under
the pilot program shall provide to the Office of Court
Administration of the Texas Judicial System a report containing:
(1) the number of wards served by the office under the
pilot program;
(2) the total amount of any money received from this
state for the provision of guardianship services; and
(3) the amount of money received from any other public
source, including a participating county or the federal government,
for the provision of guardianship services, reported by source, and
the total amount of money received from those public sources.
Sec. 1104.347. REPORT ON PILOT PROGRAM. (a) Not later than
December 1, 2022, the Office of Court Administration of the Texas
Judicial System shall submit a report to the governor and the
legislature that contains an evaluation of the pilot program,
including the establishment and operation of offices of public
guardians under the program and the provision of guardianship
services by the offices. The report must include:
(1) an analysis of costs and offsetting savings or
other benefits to the state as a result of the establishment and
operation of offices and public guardians under the program; and
(2) recommendations for legislation, if any.
(b) If it is cost-effective and feasible, the Office of
Court Administration of the Texas Judicial System may contract with
an appropriate research or public policy entity with expertise in
gerontology, disabilities, and public administration to conduct
the analysis described by Subsection (a)(1).
Sec. 1104.348. RULES. The supreme court, in consultation
with the Office of Court Administration of the Texas Judicial
System and the presiding judge of the statutory probate courts
elected under Section 25.0022, Government Code, shall adopt rules
necessary to implement the pilot program.
Sec. 1104.349. EXPIRATION. The pilot program terminates and
this subchapter expires on September 1, 2023.
SECTION 2. Not later than January 1, 2022, the supreme court
shall adopt rules necessary to develop and implement the pilot
program required by Subchapter G-1, Chapter 1104, Estates Code, as
added by this Act, including rules governing:
(1) the transfer of a guardianship of the person or of
the estate of a ward, or both, if appropriate, to an office of
public guardian established under that program or a public guardian
contracted under that program; and
(2) the transfer or continuation of a guardianship of
the person or of the estate of a ward, or both, if appropriate, from
an office of public guardian established under the program or a
public guardian contracted under the program on the expiration of
the program.
SECTION 3. This Act takes effect September 1, 2021.