H.B. No. 3009
AN ACT
relating to the health care providers authorized to examine a
person to determine whether the person is incapacitated for
purposes of certain guardianship proceedings.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter C, Chapter 1101, Estates Code, is
amended by adding Sections 1101.100 and 1101.1011 to read as
follows:
Sec. 1101.100. DEFINITIONS. In this subchapter:
(1) "Advanced practice registered nurse" has the
meaning assigned by Section 301.152, Occupations Code.
(2) "Physician" means an individual licensed by the
Texas Medical Board to practice medicine in this state.
Sec. 1101.1011. LIMITATION ON ACTS BY ADVANCED PRACTICE
REGISTERED NURSE. An advanced practice registered nurse may act
under this subchapter only if the advanced practice registered
nurse is acting under a physician's delegation authority and
supervision in accordance with Chapter 157, Occupations Code.
SECTION 2. Section 1101.103, Estates Code, is amended to
read as follows:
Sec. 1101.103. DETERMINATION OF INCAPACITY OF CERTAIN
ADULTS: HEALTH CARE PROVIDER [PHYSICIAN] EXAMINATION. (a) Except
as provided by Section 1101.104, the court may not grant an
application to create a guardianship for an incapacitated person,
other than a minor or person for whom it is necessary to have a
guardian appointed only to receive funds from a governmental
source, unless the applicant presents to the court a written letter
or certificate from a physician or advanced practice registered
nurse [licensed in this state] that is:
(1) dated not earlier than the 120th day before the
date the application is filed; and
(2) based on an examination the physician or advanced
practice registered nurse performed not earlier than the 120th day
before the date the application is filed.
(a-1) For purposes of Subsection (a), a letter or
certificate based on an examination by an advanced practice
registered nurse must be signed by the supervising physician.
(b) The letter or certificate must:
(1) describe the nature, degree, and severity of the
proposed ward's incapacity, including any functional deficits
regarding the proposed ward's ability to:
(A) handle business and managerial matters;
(B) manage financial matters;
(C) operate a motor vehicle;
(D) make personal decisions regarding residence,
voting, and marriage; and
(E) consent to medical, dental, psychological,
or psychiatric treatment;
(2) in providing a description under Subdivision (1)
regarding the proposed ward's ability to operate a motor vehicle
and make personal decisions regarding voting, state whether in the
physician's opinion the proposed ward:
(A) has the mental capacity to vote in a public
election; and
(B) has the ability to safely operate a motor
vehicle;
(3) provide an evaluation of the proposed ward's
physical condition and mental functioning and summarize the
proposed ward's medical history if reasonably available;
(3-a) in providing an evaluation under Subdivision (3),
state whether improvement in the proposed ward's physical condition
and mental functioning is possible and, if so, state the period
after which the proposed ward should be reevaluated to determine
whether a guardianship continues to be necessary;
(4) state how or in what manner the proposed ward's
ability to make or communicate responsible decisions concerning
himself or herself is affected by the proposed ward's physical or
mental health, including the proposed ward's ability to:
(A) understand or communicate;
(B) recognize familiar objects and individuals;
(C) solve problems;
(D) reason logically; and
(E) administer to daily life activities with and
without supports and services;
(5) state whether any current medication affects the
proposed ward's demeanor or the proposed ward's ability to
participate fully in a court proceeding;
(6) describe the precise physical and mental
conditions underlying a diagnosis of a mental disability, and state
whether the proposed ward would benefit from supports and services
that would allow the individual to live in the least restrictive
setting;
(6-a) state whether a guardianship is necessary for the
proposed ward and, if so, whether specific powers or duties of the
guardian should be limited if the proposed ward receives supports
and services; and
(7) include any other information required by the
court.
(b-1) For purposes of Subsection (b)(2), the opinion of an
advanced practice registered nurse that is based on an examination
of a proposed ward conducted by the advanced practice registered
nurse under delegation from and supervision by a physician and is
signed by the supervising physician is considered the supervising
physician's opinion.
(c) If the court determines it is necessary, the court may
appoint the necessary physicians or advanced practice registered
nurses to examine the proposed ward. The court must make its
determination with respect to the necessity for a physician's or
advanced practice registered nurse's examination of the proposed
ward at a hearing held for that purpose. Not later than the fourth
day before the date of the hearing, the applicant shall give to the
proposed ward and the proposed ward's attorney ad litem written
notice specifying the purpose and the date and time of the hearing.
(d) A physician or advanced practice registered nurse who
examines the proposed ward, other than a physician, advanced
practice registered nurse, or psychologist who examines the
proposed ward under Section 1101.104(2), shall make available for
inspection by the attorney ad litem appointed to represent the
proposed ward a written letter or certificate from the physician or
advanced practice registered nurse that complies with the
requirements of Subsections (a) and (b).
SECTION 3. Section 1101.104, Estates Code, is amended to
read as follows:
Sec. 1101.104. EXAMINATIONS AND DOCUMENTATION REGARDING
INTELLECTUAL DISABILITY. (a) If an intellectual disability is the
basis of the proposed ward's alleged incapacity, the court may not
grant an application to create a guardianship for the proposed ward
unless the applicant presents to the court a written letter or
certificate that:
(1) complies with Sections 1101.103(a) and (b); or
(2) shows that not earlier than 24 months before the
hearing date:
(A) the proposed ward has been examined by a
physician or advanced practice registered nurse or by a
psychologist licensed in this state or certified by the Health and
Human [Department of Aging and Disability] Services Commission to
perform the examination, in accordance with rules of the executive
commissioner of the commission [Health and Human Services
Commission] governing examinations of that kind, and the
[physician's or psychologist's] written findings and
recommendations include a determination of an intellectual
disability; or
(B) a physician or advanced practice registered
nurse or a psychologist licensed in this state or certified by the
Health and Human [Department of Aging and Disability] Services
Commission to perform examinations described by Paragraph (A)
updated or endorsed in writing a prior determination of an
intellectual disability for the proposed ward made by a physician
or by a psychologist licensed in this state or certified by the
commission [department].
(a-1) For purposes of Subsection (a), a letter or
certificate based on an examination by an advanced practice
registered nurse must be signed by the supervising physician.
(b) For purposes of Subsection (a)(2)(B), the determination
of an advanced practice registered nurse that is based on an
examination of a proposed ward conducted by the advanced practice
registered nurse under delegation from and supervision by a
physician and is signed by the supervising physician is considered
the supervising physician's determination.
SECTION 4. Section 1102.002, Estates Code, is amended to
read as follows:
Sec. 1102.002. ESTABLISHMENT OF PROBABLE CAUSE FOR
INVESTIGATION. (a) In this section:
(1) "Advanced practice registered nurse" has the
meaning assigned by Section 301.152, Occupations Code.
(2) "Physician" has the meaning assigned by Section
1101.100.
(b) An advanced practice registered nurse may act under this
section only if the advanced practice registered nurse is acting
under a physician's delegation authority and supervision in
accordance with Chapter 157, Occupations Code.
(c) To establish probable cause under Section 1102.001, the
court may require:
(1) an information letter about the person believed to
be incapacitated that is submitted by an interested person and
satisfies the requirements of Section 1102.003; or
(2) a written letter or certificate from a physician
or advanced practice registered nurse who has examined the person
believed to be incapacitated that satisfies the requirements of
Section 1101.103, except that the letter must be:
(A) dated not earlier than the 120th day before
the date of the appointment of a guardian ad litem or court
investigator under Section 1102.001; and
(B) based on an examination the physician or
advanced practice registered nurse performed not earlier than the
120th day before that date.
(d) For purposes of Subsection (c)(2), a letter or
certificate based on an examination by an advanced practice
registered nurse must be signed by the supervising physician. The
opinion of an advanced practice registered nurse that is based on an
examination of a proposed ward conducted by the advanced practice
registered nurse under delegation from and supervision by a
physician and signed by the supervising physician is considered the
supervising physician's opinion.
SECTION 5. Section 1202.054(b-1), Estates Code, is amended
to read as follows:
(b-1) A written letter or certificate from a physician or
advanced practice registered nurse as described by Section 1202.152
is not required before the appointment of the court investigator or
a guardian ad litem under Subsection (b).
SECTION 6. Section 1202.152, Estates Code, is amended to
read as follows:
Sec. 1202.152. HEALTH CARE PROVIDER'S [PHYSICIAN'S] LETTER
OR CERTIFICATE REQUIRED. (a) In this section:
(1) "Advanced practice registered nurse" has the
meaning assigned by Section 301.152, Occupations Code.
(2) "Physician" has the meaning assigned by Section
1101.100.
(b) An advanced practice registered nurse may act under this
section only if the advanced practice registered nurse is acting
under a physician's delegation authority and supervision in
accordance with Chapter 157, Occupations Code.
(c) The court may not grant an order completely restoring a
ward's capacity or modifying a ward's guardianship under an
application filed under Section 1202.051 unless the applicant
presents to the court a written letter or certificate from a
physician or advanced practice registered nurse licensed in this
state that is dated:
(1) not earlier than the 120th day before the date the
application was filed; or
(2) after the date the application was filed but
before the date of the hearing.
(c-1) For purposes of Subsection (c), a letter or
certificate based on an examination by an advanced practice
registered nurse must be signed by the supervising physician.
(d) [(b)] A letter or certificate presented under
Subsection (c) [(a)] must:
(1) describe the nature and degree of incapacity,
including the medical history if reasonably available, or state
that, in the physician's opinion, the ward has the capacity, or
sufficient capacity with supports and services, to:
(A) provide food, clothing, and shelter for
himself or herself;
(B) care for the ward's own physical health; and
(C) manage the ward's financial affairs;
(2) provide a medical prognosis specifying the
estimated severity of any incapacity;
(3) state how or in what manner the ward's ability to
make or communicate responsible decisions concerning himself or
herself is affected by the ward's physical or mental health;
(4) state whether any current medication affects the
ward's demeanor or the ward's ability to participate fully in a
court proceeding;
(5) describe the precise physical and mental
conditions underlying a diagnosis of senility, if applicable; and
(6) include any other information required by the
court.
(e) For purposes of Subsection (d), the opinion of an
advanced practice registered nurse that is based on an examination
of a ward conducted by the advanced practice registered nurse under
delegation from and supervision by a physician and is signed by the
supervising physician is considered the supervising physician's
opinion.
(f) [(c)] If the court determines it is necessary, the court
may appoint the necessary physicians or advanced practice
registered nurses to examine the ward in the same manner and to the
same extent as a ward is examined by a physician or advanced
practice registered nurse under Section 1101.103 or 1101.104.
SECTION 7. The changes in law made by this Act apply only to
an application for the appointment of a guardian, for the complete
restoration of a ward's capacity, or for the modification of a
guardianship that is filed on or after the effective date of this
Act. An application filed before the effective date of this Act is
governed by the law in effect on the date the application was filed,
and the former law is continued in effect for that purpose.
SECTION 8. This Act takes effect September 1, 2023.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 3009 was passed by the House on May
11, 2023, by the following vote: Yeas 142, Nays 2, 1 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 3009 on May 25, 2023, by the following vote: Yeas 142, Nays 0,
1 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 3009 was passed by the Senate, with
amendments, on May 23, 2023, by the following vote: Yeas 31, Nays
0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor