Texas 2023 - 88th Regular

Texas House Bill HB653 Compare Versions

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1	1	88R21146 KFF-D
2	2	By: Allison, Spiller, Hull H.B. No. 653
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to guardianships of the person of wards with profound
8	8	intellectual disabilities who are minors or were minors when their
9	9	guardianship proceedings commenced.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. This Act may be cited as Caleb's Law.
12	12	SECTION 2. Section 1054.001, Estates Code, is amended to
13	13	read as follows:
14	14	Sec. 1054.001. APPOINTMENT OF ATTORNEY AD LITEM IN
15	15	PROCEEDING FOR APPOINTMENT OF GUARDIAN. In a proceeding under this
16	16	title for the appointment of a guardian and except as provided by
17	17	Section 1103A.001, the court shall appoint an attorney ad litem to
18	18	represent the proposed ward's interests.
19	19	SECTION 3. Section 1054.151, Estates Code, is amended to
20	20	read as follows:
21	21	Sec. 1054.151. INVESTIGATION OF GUARDIANSHIP APPLICATION.
22	22	On the filing of an application for guardianship under Section
23	23	1101.001 and except as provided by Section 1103A.001, a court
24	24	investigator shall investigate the circumstances alleged in the
25	25	application to determine whether a less restrictive alternative to
26	26	guardianship is appropriate.
27	27	SECTION 4. Subtitle D, Title 3, Estates Code, is amended by
28	28	adding Chapter 1103A to read as follows:
29	29	CHAPTER 1103A. PROCEDURE TO APPOINT CAREGIVER PARENT AS INDEPENDENT
30	30	GUARDIAN OF THE PERSON FOR CERTAIN MINORS REQUIRING GUARDIANSHIPS
31	31	AS ADULTS
32	32	Sec. 1103A.001. PROCEDURE FOR APPOINTMENT OF CAREGIVER
33	33	PARENT AS INDEPENDENT GUARDIAN OF THE PERSON OF CERTAIN MINORS WITH
34	34	PROFOUND INTELLECTUAL DISABILITIES. (a) This section applies only
35	35	to a proceeding for the appointment of a guardian of the person of a
36	36	proposed ward under Section 1101.001 or 1103.001 in which the:
37	37	(1) proposed ward is a minor who:
38	38	(A) has a profound intellectual disability, as
39	39	diagnosed by a physician licensed to practice in this state or as
40	40	determined, following an examination, by a psychologist licensed in
41	41	this state or certified by the Health and Human Services Commission
42	42	to perform the examination, in accordance with rules adopted by the
43	43	executive commissioner of the commission governing examinations of
44	44	that kind; and
45	45	(B) because of the incapacity described by
46	46	Paragraph (A) will require a guardianship of the person after the
47	47	proposed ward is no longer a minor; and
48	48	(2) proposed guardian of the person is a parent and
49	49	primary caregiver of the proposed ward.
50	50	(b) Notwithstanding any other law, if the applicant who
51	51	files an application for appointment as guardian of the person of a
52	52	proposed ward under Section 1101.001 or 1103.001 is the parent and
53	53	primary caregiver of the proposed ward, the applicant may present
54	54	to the court:
55	55	(1) an affidavit sworn to by the applicant that states
56	56	that the applicant is a parent of a proposed ward described by
57	57	Subsection (a)(1) and:
58	58	(A) is and has been the primary caregiver of the
59	59	proposed ward throughout all or most of the proposed ward's
60	60	childhood;
61	61	(B) has never been the subject of a substantiated
62	62	allegation, complaint, or investigation concerning the abuse,
63	63	neglect, or exploitation of the proposed ward;
64	64	(C) seeks to be appointed guardian of the person
65	65	of the proposed ward; and
66	66	(D) is not disqualified from serving as guardian
67	67	under Subchapter H, Chapter 1104;
68	68	(2) at least one written letter or certificate that
69	69	meets the requirements of:
70	70	(A) Sections 1101.103(a) and (b); or
71	71	(B) Section 1101.104, except that the period
72	72	prescribed by Section 1101.104(2) would be calculated from the date
73	73	the application is filed instead of the hearing date; and
74	74	(3) a written request that:
75	75	(A) the court make the findings required by
76	76	Section 1101.101 and appoint the parent as guardian of the person of
77	77	the proposed ward in accordance with this section without the
78	78	necessity of an investigation by a court investigator under Section
79	79	1054.151; and
80	80	(B) after appointment and qualification of the
81	81	applicant as guardian of the person of the ward, no other action
82	82	shall be had in the probate court in relation to the guardianship of
83	83	the person of the ward other than the review required by Section
84	84	1201.052(b).
85	85	(c) If, following a written request under Subsection (b)(3)
86	86	and on receipt of an affidavit that complies with Subsection (b)(1)
87	87	and a letter or certificate that complies with Subsection (b)(2),
88	88	the court is able to make the findings required by Section 1101.101,
89	89	the court, notwithstanding Subchapter C, Chapter 1104, shall
90	90	appoint the parent as guardian of the proposed ward's person
91	91	without appointing a court investigator or the continued
92	92	appointment of an attorney ad litem unless:
93	93	(1) the parent is disqualified from serving as
94	94	guardian under Subchapter H, Chapter 1104;
95	95	(2) the court has any reason to believe that one or
96	96	more of the assertions set out in the affidavit are untrue; or
97	97	(3) the court finds that the appointment is not in the
98	98	best interest of the proposed ward.
99	99	(d) A guardianship created under this section is considered
100	100	an independent guardianship of the person of a ward, and a guardian
101	101	appointed under this section is considered an independent guardian
102	102	of the person of a ward.
103	103	Sec. 1103A.002. SEALING OF CERTAIN RECORDS. (a) The court
104	104	shall seal a written letter or certificate submitted under Section
105	105	1103A.001(b) and any other medical record or document examined by
106	106	the court for purposes of this section unless the court finds good
107	107	cause not to seal the document.
108	108	(b) The court's records sealed under this section are not
109	109	open for inspection by any person except:
110	110	(1) on further order of the court after notice to the
111	111	guardian of the person of the ward whose information is sealed and a
112	112	finding of good cause; or
113	113	(2) in connection with a criminal or civil proceeding
114	114	as otherwise provided by law.
115	115	Sec. 1103A.003. PETITION FOR CONVERSION OF GUARDIANSHIP OF
116	116	THE PERSON TO INDEPENDENT GUARDIANSHIP OF THE PERSON. (a) This
117	117	section applies only to a guardianship of the person of a ward
118	118	created before September 1, 2023, if on the date the application for
119	119	guardianship was filed under Section 1101.001 or 1103.001:
120	120	(1) the ward met the description of a proposed ward
121	121	under Section 1103A.001(a)(1); and
122	122	(2) the guardian was the parent and primary caregiver
123	123	of the ward.
124	124	(b) The guardian in a guardianship to which this section
125	125	applies may petition the court with jurisdiction over the
126	126	guardianship to authorize that the guardianship of the person be
127	127	treated on a prospective basis as if the guardianship was created
128	128	and, if applicable, the guardian of the person appointed, under
129	129	Section 1103A.001.
130	130	SECTION 5. Section 1105.101(c), Estates Code, is amended to
131	131	read as follows:
132	132	(c) The court shall issue letters of guardianship of the
133	133	person to a person without the requirement of a bond if:
134	134	(1) the person is:
135	135	(A) a parent of the ward appointed under Section
136	136	1103A.001 who is not also appointed as guardian of the estate of the
137	137	ward; or
138	138	(B) named to be appointed guardian in a will made
139	139	by a surviving parent that is probated by a court in this state, or
140	140	in a written declaration made by a surviving parent, and the will or
141	141	declaration directs that the guardian serve without a bond; and
142	142	(2) the court finds that the guardian is qualified.
143	143	SECTION 6. Section 1106.002, Estates Code, is amended to
144	144	read as follows:
145	145	Sec. 1106.002. EXPIRATION OF LETTERS OF GUARDIANSHIP. (a)
146	146	Except as provided by Subsection (b), letters [Letters] of
147	147	guardianship expire one year and four months after the date the
148	148	letters are issued, unless renewed.
149	149	(b) Unless the court finds that it is not in the best
150	150	interest of the ward, letters of guardianship issued to a guardian
151	151	of the person of a ward appointed under Section 1103A.001 do not
152	152	expire unless the guardian is removed or would otherwise be
153	153	ineligible to serve as guardian.
154	154	SECTION 7. Section 1163.101, Estates Code, is amended by
155	155	amending Subsection (a) and adding Subsection (a-1) to read as
156	156	follows:
157	157	(a) Except as provided by Subsection (a-1), once [Once] each
158	158	year for the duration of the guardianship, a guardian of the person
159	159	shall file with the court a report that contains the information
160	160	required by this section.
161	161	(a-1) Unless the court finds that it is not in the best
162	162	interest of the ward, a guardian of the person of a ward appointed
163	163	under Section 1103A.001 is not required to file an annual report
164	164	under this section.
165	165	SECTION 8. The heading to Subchapter B, Chapter 1201,
166	166	Estates Code, is amended to read as follows:
167	167	SUBCHAPTER B. [ANNUAL] DETERMINATION TO CONTINUE, MODIFY, OR
168	168	TERMINATE GUARDIANSHIP
169	169	SECTION 9. Section 1201.052, Estates Code, is amended to
170	170	read as follows:
171	171	Sec. 1201.052. ANNUAL OR OTHER DETERMINATION. (a) To
172	172	determine whether a guardianship should be continued, modified, or
173	173	terminated, the court in which the guardianship proceeding is
174	174	pending:
175	175	(1) shall, except as provided by Subsection (b),
176	176	review annually each guardianship in which the application to
177	177	create the guardianship was filed after September 1, 1993; and
178	178	(2) may review annually any other guardianship.
179	179	(b) To determine whether a guardianship of the person of a
180	180	ward created under Section 1103A.001 should be continued, modified,
181	181	or terminated, the court in which the guardianship proceeding is
182	182	pending shall review the guardianship of the person at the
183	183	discretion of the court but not more frequently than once every five
184	184	years unless the guardian of the person of the ward is also the
185	185	guardian of the estate of the ward.
186	186	(c) Notwithstanding Subsection (b), on receipt of a claim
187	187	that the guardianship is no longer in the best interest of the ward,
188	188	the court may review the matter and take any action the court
189	189	determines necessary.
190	190	SECTION 10. The changes in law made by this Act apply to a
191	191	guardianship proceeding that is pending or commenced on or after
192	192	the effective date of this Act.
193	193	SECTION 11. This Act takes effect immediately if it
194	194	receives a vote of two-thirds of all the members elected to each
195	195	house, as provided by Section 39, Article III, Texas Constitution.
196	196	If this Act does not receive the vote necessary for immediate
197	197	effect, this Act takes effect September 1, 2023.