Texas 2023 - 88th Regular

Texas House Bill HB4107 Compare Versions

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1	1	88R14515 EAS-D
2	2	By: Canales H.B. No. 4107
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to examination requirements for purposes of certain
8	8	guardianship proceedings.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 1101.103, Estates Code, is amended to
11	11	read as follows:
12	12	Sec. 1101.103. DETERMINATION OF INCAPACITY OF CERTAIN
13	13	ADULTS: PHYSICIAN OR PSYCHOLOGIST EXAMINATION. (a) Except as
14	14	provided by Section 1101.104, the court may not grant an
15	15	application to create a guardianship for an incapacitated person,
16	16	other than a minor or person for whom it is necessary to have a
17	17	guardian appointed only to receive funds from a governmental
18	18	source, unless the applicant presents to the court a written letter
19	19	or certificate from a physician or psychologist licensed in this
20	20	state that is:
21	21	(1) dated not earlier than the 120th day before the
22	22	date the application is filed; and
23	23	(2) based on an examination the physician or
24	24	psychologist performed not earlier than the 120th day before the
25	25	date the application is filed.
26	26	(b) The letter or certificate must:
27	27	(1) describe the nature, degree, and severity of the
28	28	proposed ward's incapacity, including any functional deficits
29	29	regarding the proposed ward's ability to:
30	30	(A) handle business and managerial matters;
31	31	(B) manage financial matters;
32	32	(C) operate a motor vehicle;
33	33	(D) make personal decisions regarding residence,
34	34	voting, and marriage; and
35	35	(E) consent to medical, dental, psychological,
36	36	or psychiatric treatment;
37	37	(2) in providing a description under Subdivision (1)
38	38	regarding the proposed ward's ability to operate a motor vehicle
39	39	and make personal decisions regarding voting, state whether in the
40	40	physician's or psychologist's opinion the proposed ward:
41	41	(A) has the mental capacity to vote in a public
42	42	election; and
43	43	(B) has the ability to safely operate a motor
44	44	vehicle;
45	45	(3) provide:
46	46	(A) if a physician performs the examination, an
47	47	evaluation of the proposed ward's physical condition and mental
48	48	functioning and summarize the proposed ward's medical history if
49	49	reasonably available; or
50	50	(B) if a psychologist performs the examination,
51	51	an evaluation of the proposed ward's mental functioning and
52	52	summarize the proposed ward's psychological history, if
53	53	applicable;
54	54	(3-a) in providing an evaluation under Subdivision
55	55	(3), state whether improvement in the proposed ward's physical
56	56	condition and mental functioning is possible and, if so, state the
57	57	period after which the proposed ward should be reevaluated to
58	58	determine whether a guardianship continues to be necessary;
59	59	(4) state how or in what manner the proposed ward's
60	60	ability to make or communicate responsible decisions concerning
61	61	himself or herself is affected by the proposed ward's physical or
62	62	mental health, including the proposed ward's ability to:
63	63	(A) understand or communicate;
64	64	(B) recognize familiar objects and individuals;
65	65	(C) solve problems;
66	66	(D) reason logically; and
67	67	(E) administer to daily life activities with and
68	68	without supports and services;
69	69	(5) state whether any current medication affects the
70	70	proposed ward's demeanor or the proposed ward's ability to
71	71	participate fully in a court proceeding;
72	72	(6) describe the precise physical or [and] mental
73	73	conditions underlying a diagnosis of a mental disability, and state
74	74	whether the proposed ward would benefit from supports and services
75	75	that would allow the individual to live in the least restrictive
76	76	setting;
77	77	(6-a) state whether a guardianship is necessary for
78	78	the proposed ward and, if so, whether specific powers or duties of
79	79	the guardian should be limited if the proposed ward receives
80	80	supports and services; and
81	81	(7) include any other information required by the
82	82	court.
83	83	(c) If the court determines it is necessary, the court may
84	84	appoint a physician or psychologist [the necessary physicians] to
85	85	examine the proposed ward. The court must make its determination
86	86	with respect to the necessity for a physician's or psychologist's
87	87	examination of the proposed ward at a hearing held for that purpose.
88	88	Not later than the fourth day before the date of the hearing, the
89	89	applicant shall give to the proposed ward and the proposed ward's
90	90	attorney ad litem written notice specifying the purpose and the
91	91	date and time of the hearing.
92	92	(d) A physician or psychologist who examines the proposed
93	93	ward, other than a physician or psychologist who examines the
94	94	proposed ward under Section 1101.104(2), shall make available for
95	95	inspection by the attorney ad litem appointed to represent the
96	96	proposed ward a written letter or certificate from the physician or
97	97	psychologist that complies with the requirements of Subsections (a)
98	98	and (b).
99	99	SECTION 2. Section 1202.152, Estates Code, is amended to
100	100	read as follows:
101	101	Sec. 1202.152. PHYSICIAN'S OR PSYCHOLOGIST'S LETTER OR
102	102	CERTIFICATE REQUIRED. (a) The court may not grant an order
103	103	completely restoring a ward's capacity or modifying a ward's
104	104	guardianship under an application filed under Section 1202.051
105	105	unless the applicant presents to the court a written letter or
106	106	certificate from a physician or psychologist licensed in this state
107	107	that is dated:
108	108	(1) not earlier than the 120th day before the date the
109	109	application was filed; or
110	110	(2) after the date the application was filed but
111	111	before the date of the hearing.
112	112	(b) A letter or certificate presented under Subsection (a)
113	113	must:
114	114	(1) describe the nature and degree of incapacity,
115	115	including, as appropriate, the medical or psychological history if
116	116	reasonably available, or state that, in the physician's or
117	117	psychologist's opinion, the ward has the capacity, or sufficient
118	118	capacity with supports and services, to:
119	119	(A) provide food, clothing, and shelter for
120	120	himself or herself;
121	121	(B) care for the ward's own physical health; and
122	122	(C) manage the ward's financial affairs;
123	123	(2) provide:
124	124	(A) if the letter or certificate is from a
125	125	physician, a medical prognosis specifying the estimated severity of
126	126	any incapacity; or
127	127	(B) if the letter or certificate is from a
128	128	psychologist, a psychological prognosis specifying the estimated
129	129	severity of any mental incapacity;
130	130	(3) state how or in what manner the ward's ability to
131	131	make or communicate responsible decisions concerning himself or
132	132	herself is affected by the ward's physical or mental health;
133	133	(4) state whether any current medication affects the
134	134	ward's demeanor or the ward's ability to participate fully in a
135	135	court proceeding;
136	136	(5) describe the precise physical or [and] mental
137	137	conditions underlying a diagnosis of senility, if applicable; and
138	138	(6) include any other information required by the
139	139	court.
140	140	(c) If the court determines it is necessary, the court may
141	141	appoint a physician or psychologist [the necessary physicians] to
142	142	examine the ward in the same manner and to the same extent as a ward
143	143	is examined by a physician or psychologist under Section 1101.103
144	144	or 1101.104.
145	145	SECTION 3. (a) The changes in law made by this Act to
146	146	Section 1101.103, Estates Code, apply only to an application for
147	147	the appointment of a guardian that is filed on or after the
148	148	effective date of this Act. An application filed before the
149	149	effective date of this Act is governed by the law in effect on the
150	150	date the application was filed, and the former law is continued in
151	151	effect for that purpose.
152	152	(b) The changes in law made by this Act to Section 1202.152,
153	153	Estates Code, apply only to an application for the complete
154	154	restoration of a ward's capacity or modification of a guardianship
155	155	filed on or after the effective date of this Act. An application
156	156	for the complete restoration of a ward's capacity or modification
157	157	of a guardianship filed before the effective date of this Act is
158	158	governed by the law in effect on the date the application was filed,
159	159	and the former law is continued in effect for that purpose.
160	160	SECTION 4. This Act takes effect September 1, 2023.