88R14515 EAS-D
By: Canales H.B. No. 4107
A BILL TO BE ENTITLED
AN ACT
relating to examination requirements for purposes of certain
guardianship proceedings.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1101.103, Estates Code, is amended to
read as follows:
Sec. 1101.103. DETERMINATION OF INCAPACITY OF CERTAIN
ADULTS: PHYSICIAN OR PSYCHOLOGIST 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 psychologist 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
psychologist performed not earlier than the 120th day before the
date the application is filed.
(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 or psychologist'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:
(A) if a physician performs the examination, an
evaluation of the proposed ward's physical condition and mental
functioning and summarize the proposed ward's medical history if
reasonably available; or
(B) if a psychologist performs the examination,
an evaluation of the proposed ward's mental functioning and
summarize the proposed ward's psychological history, if
applicable;
(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 or [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.
(c) If the court determines it is necessary, the court may
appoint a physician or psychologist [the necessary physicians] to
examine the proposed ward. The court must make its determination
with respect to the necessity for a physician's or psychologist'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 psychologist who examines the proposed
ward, other than a physician 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
psychologist that complies with the requirements of Subsections (a)
and (b).
SECTION 2. Section 1202.152, Estates Code, is amended to
read as follows:
Sec. 1202.152. PHYSICIAN'S OR PSYCHOLOGIST'S LETTER OR
CERTIFICATE REQUIRED. (a) 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 psychologist 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.
(b) A letter or certificate presented under Subsection (a)
must:
(1) describe the nature and degree of incapacity,
including, as appropriate, the medical or psychological history if
reasonably available, or state that, in the physician's or
psychologist'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) if the letter or certificate is from a
physician, a medical prognosis specifying the estimated severity of
any incapacity; or
(B) if the letter or certificate is from a
psychologist, a psychological prognosis specifying the estimated
severity of any mental 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 or [and] mental
conditions underlying a diagnosis of senility, if applicable; and
(6) include any other information required by the
court.
(c) If the court determines it is necessary, the court may
appoint a physician or psychologist [the necessary physicians] to
examine the ward in the same manner and to the same extent as a ward
is examined by a physician or psychologist under Section 1101.103
or 1101.104.
SECTION 3. (a) The changes in law made by this Act to
Section 1101.103, Estates Code, apply only to an application for
the appointment of a guardian 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.
(b) The changes in law made by this Act to Section 1202.152,
Estates Code, apply only to an application for the complete
restoration of a ward's capacity or modification of a guardianship
filed on or after the effective date of this Act. An application
for the complete restoration of a ward's capacity or modification
of a guardianship 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 4. This Act takes effect September 1, 2023.