By: Zaffirini, et al. S.B. No. 1624
(Leach)
A BILL TO BE ENTITLED
AN ACT
relating to guardianships, alternatives to guardianship, and
supports and services for incapacitated persons.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1054.001, Estates Code, is amended to
read as follows:
Sec. 1054.001. APPOINTMENT OF ATTORNEY AD LITEM IN
PROCEEDING FOR APPOINTMENT OF GUARDIAN. In a proceeding under this
title for the appointment of a guardian, the court shall appoint an
attorney ad litem to represent the proposed ward's interests,
including the proposed ward's expressed wishes.
SECTION 2. Section 1054.003, Estates Code, is amended to
read as follows:
Sec. 1054.003. ACCESS TO RECORDS. An attorney ad litem
appointed under Section 1054.001 or an attorney retained by a ward
or proposed ward under Section 1054.006 or 1202.103 shall be
provided copies of all of the current records in the guardianship
case. The attorney ad litem or retained attorney may have access to
all of the proposed ward's relevant medical, psychological, and
intellectual testing records.
SECTION 3. Section 1054.006, Estates Code, is amended to
read as follows:
Sec. 1054.006. REPRESENTATION OF WARD OR PROPOSED WARD BY
ATTORNEY. (a) A ward or proposed ward [The following persons] may
at any time retain an attorney who holds a certificate required by
Subchapter E to represent the ward's or proposed ward's [person's]
interests, including the ward's or proposed ward's expressed
wishes, in a guardianship proceeding, including a proceeding
involving the complete restoration of the ward's capacity or
modification of the ward's guardianship, instead of having those
interests represented by an attorney ad litem appointed under
Section 1054.001, Section 1202.101, or another provision of this
title[:
[(1) a ward who retains the power to enter into a
contract under the terms of the guardianship, subject to Section
1202.103; and
[(2) a proposed ward for purposes of a proceeding for
the appointment of a guardian as long as the proposed ward has
capacity to contract].
(b) Subject to Subsection (c), if a ward or proposed ward
has retained an attorney under Subsection (a), [If] the court shall
[finds that the ward or the proposed ward has capacity to contract,
the court may] remove an attorney ad litem appointed under Section
1054.001, Section 1202.101, or any other provision of this title
that requires the court to appoint an attorney ad litem to represent
the interests of a ward or proposed ward and appoint a ward or a
proposed ward's retained counsel.
(c) On the motion of a party to a guardianship proceeding or
on the court's own motion, the court may hold a hearing on the ward's
or proposed ward's capacity to retain an attorney under Subsection
(a). The burden of proof is on the party motioning the court. If
the court finds by a preponderance of evidence that the ward or
proposed ward does not understand the guardianship proceeding or
the purpose for which the attorney was retained, the court may
appoint an attorney ad litem under Section 1054.001, Section
1202.101, or another provision of this title.
(d) An attorney retained by a ward or proposed ward under
this section must represent the ward's or proposed ward's
interests, including the ward's or proposed ward's expressed
wishes.
SECTION 4. Section 1054.007, Estates Code, is amended by
adding Subsection (c) to read as follows:
(c) An attorney ad litem appointed for a ward or proposed
ward under this title shall represent the ward's or proposed ward's
interests, including the ward's or proposed ward's expressed
wishes.
SECTION 5. Section 1054.051, Estates Code, is amended to
read as follows:
Sec. 1054.051. APPOINTMENT OF GUARDIAN AD LITEM IN
GUARDIANSHIP PROCEEDING. (a) Subject to Subsection (b), the [The]
judge may appoint a guardian ad litem to represent the interests of
an incapacitated person in a guardianship proceeding.
(b) A person appointed as a guardian ad litem may not be:
(1) an interested person, as defined by Section
1002.018(1); or
(2) an attorney ad litem appointed for the
guardianship proceeding except as provided by Section 1054.052,
1202.101, or 1203.051.
SECTION 6. Subchapter D, Chapter 1054, Estates Code, is
amended by adding Section 1054.157 to read as follows:
Sec. 1054.157. REQUIRED TRAINING. At least once every two
years, a court investigator and a court visitor shall complete two
hours of training, including one hour of training on alternatives
to guardianship and supports and services available to a proposed
ward in accordance with Section 22.0133, Government Code.
SECTION 7. Section 1151.351(b), Estates Code, is amended to
read as follows:
(b) Unless limited by a court or otherwise restricted by
law, a ward is authorized to the following:
(1) to have a copy of the guardianship order and
letters of guardianship and contact information for the probate
court that issued the order and letters;
(2) to have a guardianship that encourages the
development or maintenance of maximum self-reliance and
independence in the ward with the eventual goal, if possible, of
self-sufficiency;
(3) to be treated with respect, consideration, and
recognition of the ward's dignity and individuality;
(4) to reside and receive support services in the most
integrated setting, including home-based or other community-based
settings, as required by Title II of the Americans with
Disabilities Act (42 U.S.C. Section 12131 et seq.);
(5) to consideration of the ward's current and
previously stated personal preferences, desires, medical and
psychiatric treatment preferences, religious beliefs, living
arrangements, and other preferences and opinions;
(6) to financial self-determination for all public
benefits after essential living expenses and health needs are met
and to have access to a monthly personal allowance;
(7) to receive timely and appropriate health care and
medical treatment that does not violate the ward's rights granted
by the constitution and laws of this state and the United States;
(8) to exercise full control of all aspects of life not
specifically granted by the court to the guardian;
(9) to control the ward's personal environment based
on the ward's preferences;
(10) to complain or raise concerns regarding the
guardian or guardianship to the court, including living
arrangements, retaliation by the guardian, conflicts of interest
between the guardian and service providers, or a violation of any
rights under this section;
(11) to receive notice in the ward's native language,
or preferred mode of communication, and in a manner accessible to
the ward, of a court proceeding to continue, modify, or terminate
the guardianship and the opportunity to appear before the court to
express the ward's preferences and concerns regarding whether the
guardianship should be continued, modified, or terminated;
(12) to have a court investigator or guardian ad litem
appointed by the court to investigate a complaint received by the
court from the ward or any person about the guardianship;
(13) to participate in social, religious, and
recreational activities, training, employment, education,
habilitation, and rehabilitation of the ward's choice in the most
integrated setting;
(14) to self-determination in the substantial
maintenance, disposition, and management of real and personal
property after essential living expenses and health needs are met,
including the right to receive notice and object about the
substantial maintenance, disposition, or management of clothing,
furniture, vehicles, and other personal effects;
(15) to personal privacy and confidentiality in
personal matters, subject to state and federal law;
(16) to unimpeded, private, and uncensored
communication and visitation with persons of the ward's choice,
except that if the guardian determines that certain communication
or visitation causes substantial harm to the ward:
(A) the guardian may limit, supervise, or
restrict communication or visitation, but only to the extent
necessary to protect the ward from substantial harm; and
(B) the ward may request a hearing to remove any
restrictions on communication or visitation imposed by the guardian
under Paragraph (A);
(17) to petition the court and retain counsel of the
ward's choice who holds a certificate required by Subchapter E,
Chapter 1054, to represent the ward's interest for capacity
restoration, modification of the guardianship, the appointment of a
different guardian, or for other appropriate relief under this
subchapter, including a transition to a supported decision-making
agreement, except as limited by Section 1054.006;
(18) to vote in a public election, marry, and retain a
license to operate a motor vehicle, unless restricted by the court;
(19) to personal visits from the guardian or the
guardian's designee at least once every three months, but more
often, if necessary, unless the court orders otherwise;
(20) to be informed of the name, address, phone
number, and purpose of Disability Rights Texas, an organization
whose mission is to protect the rights of, and advocate for, persons
with disabilities, and to communicate and meet with representatives
of that organization;
(21) to be informed of the name, address, phone
number, and purpose of an independent living center, an area agency
on aging, an aging and disability resource center, and the local
mental health and intellectual and developmental disability
center, and to communicate and meet with representatives from these
agencies and organizations;
(22) to be informed of the name, address, phone
number, and purpose of the Judicial Branch Certification Commission
and the procedure for filing a complaint against a certified
guardian;
(23) to contact the Department of Family and
Protective Services to report abuse, neglect, exploitation, or
violation of personal rights without fear of punishment,
interference, coercion, or retaliation;
(24) to have the guardian, on appointment and on
annual renewal of the guardianship, explain the rights delineated
in this subsection in the ward's native language, or preferred mode
of communication, and in a manner accessible to the ward; [and]
(25) to make decisions related to sexual assault
crisis services, including consenting to a forensic medical
examination and treatment, authorizing the collection of forensic
evidence, consenting to the release of evidence contained in an
evidence collection kit and disclosure of related confidential
information, and receiving counseling and other support services;
and
(26) to have private communications with the ward's
physicians or other medical professionals, unless the court, after
a hearing requested by the ward's guardian, orders the private
communications to be limited due to:
(A) the risk of substantial harm to the ward; or
(B) the communications being unduly burdensome
to the physician or medical professional.
SECTION 8. Section 1163.101, Estates Code, is amended by
amending Subsection (c) and adding Subsection (d) to read as
follows:
(c) The guardian of the person shall file a sworn affidavit
that contains:
(1) the guardian's current name, address, and
telephone number;
(2) the ward's date of birth and current name, address,
telephone number, and age;
(3) a description of the type of home in which the ward
resides, which shall be described as:
(A) the ward's own home;
(B) a nursing home;
(C) a guardian's home;
(D) a foster home;
(E) a boarding home;
(F) a relative's home, in which case the
description must specify the relative's relationship to the ward;
(G) a hospital or medical facility; or
(H) another type of residence;
(4) statements indicating:
(A) the length of time the ward has resided in the
present home;
(B) the reason for a change in the ward's
residence, if a change in the ward's residence has occurred in the
past year;
(C) the date the guardian most recently saw the
ward;
(D) how frequently the guardian has seen the ward
in the past year;
(E) whether the guardian has possession or
control of the ward's estate;
(F) whether the ward's mental health has
improved, deteriorated, or remained unchanged during the past year,
including a description of the change if a change has occurred;
(G) whether the ward's physical health has
improved, deteriorated, or remained unchanged during the past year,
including a description of the change if a change has occurred;
(H) whether the ward has regular medical care;
[and]
(I) the ward's treatment or evaluation by any of
the following persons during the past year, including the person's
name and a description of the treatment:
(i) a physician;
(ii) a psychiatrist, psychologist, or other
mental health care provider;
(iii) a dentist;
(iv) a social or other caseworker; or
(v) any other individual who provided
treatment; and
(J) supports and services the ward has received
or is currently receiving, as described by Subsection (d);
(5) a description of the ward's activities during the
past year, including recreational, educational, social, and
occupational activities, or a statement that no activities were
available or that the ward was unable or refused to participate in
activities;
(6) the guardian's evaluation of:
(A) the ward's living arrangements as excellent,
average, or below average, including an explanation if the
conditions are below average;
(B) whether the ward is content or unhappy with
the ward's living arrangements; and
(C) unmet needs of the ward;
(7) a statement indicating whether the guardian's
power should be increased, decreased, or unaltered, including an
explanation if a change is recommended;
(8) a statement indicating that the guardian has paid
the bond premium for the next reporting period;
(9) if the guardian is a private professional
guardian, a guardianship program, or the Health and Human Services
Commission, whether the 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; and
(10) any additional information the guardian desires
to share with the court regarding the ward, including:
(A) whether the guardian has filed for emergency
detention of the ward under Subchapter A, Chapter 573, Health and
Safety Code; and
(B) if applicable, the number of times the
guardian has filed for emergency detention and the dates of the
applications for emergency detention.
(d) The statements in the sworn affidavit regarding the
ward's supports and services under Subsection (c)(4)(J) must
include:
(1) information regarding actions the guardian is
taking to encourage the development of the ward's maximum
self-reliance and independence;
(2) a list of all the supports and services the ward is
currently receiving, including whether the ward:
(A) has a representative payee;
(B) receives services from a local mental health
authority or local intellectual and developmental disability
authority;
(C) receives any supports and services under
Medicaid, including under a Medicaid waiver program authorized
under Section 1915(c) of the federal Social Security Act (42 U.S.C.
Section 1396n); and
(D) receives any supports and services
informally;
(3) where the ward receives the supports and services
described by Subdivision (2);
(4) who provides the supports and services described
by Subdivision (2);
(5) a list of the supports and services the ward
previously received or attempted to receive and why the support or
service was discontinued or not received; and
(6) the guardian's opinion on whether the ward has the
capacity or sufficient capacity with supports and services for
complete restoration of the ward's capacity or modification of the
guardianship under Chapter 1202 or the reasons why the ward does not
have the capacity or sufficient capacity with supports and services
for complete restoration of the ward's capacity or modification of
the guardianship under Chapter 1202.
SECTION 9. Section 1201.052, Estates Code, is amended to
read as follows:
Sec. 1201.052. ANNUAL DETERMINATION; HEARING. (a) To
determine whether a guardianship should be continued, modified, or
terminated, the court in which the guardianship proceeding is
pending:
(1) shall review annually each guardianship in which
the application to create the guardianship was filed after
September 1, 1993; and
(2) may review annually any other guardianship.
(b) A court in which the guardianship proceeding is pending
may conduct a hearing under this section.
SECTION 10. Section 1201.053, Estates Code, is amended to
read as follows:
Sec. 1201.053. METHOD OF DETERMINATION. (a) In reviewing a
guardianship under Section 1201.052, a statutory probate court
shall review any [may]:
(1) [review any] report prepared by:
(A) a court investigator under Section 1054.153
or 1202.054;
(B) a guardian ad litem under Section 1202.054;
or
(C) a court visitor under Section 1054.104;
(2) [conduct a hearing; or
[(3) review an] annual account prepared under
Subchapter A, Chapter 1163; and
(3) [, or a ] report prepared under Subchapter C,
Chapter 1163.
(a-1) Unless a court orders that a report be completed more
frequently, if a report described by Subsection (a)(1) is required
under Section 1054.153 or 1054.104, the court investigator or court
visitor, as appropriate, shall prepare an additional report
described by Subsection (a)(1) every three years beginning on the
date the original letters of guardianship are issued.
(a-2) Before preparing an additional report under
Subsection (a-1), the court investigator or court visitor, as
appropriate, shall:
(1) meet with the ward in person, using necessary and
appropriate communication supports;
(2) present the bill of rights for wards under Section
1151.351 to the ward in the ward's preferred language and manner of
communication;
(3) document the ward's statement of guardianship, as
described by Subsection (a-3); and
(4) document the supports and services currently
available to the ward and whether the guardian's rights and powers
can be limited because a less restrictive alternative to
guardianship is appropriate.
(a-3) The ward's statement of guardianship:
(1) must include:
(A) whether the ward desires a full restoration
of the ward's capacity or modification of the ward's guardianship;
and
(B) any other information the ward wishes to
share with the court; and
(2) may be in the form of:
(A) a written statement made by the ward and
filed with the court by the court investigator or court visitor
preparing the report;
(B) a verbal statement made to the court
investigator or court visitor, as applicable, that is documented in
writing and filed with the court by the person receiving the
statement; or
(C) a verbal or written statement made by the
ward during a hearing either in person or remotely through other
means.
(b) A court that is not a statutory probate court:
(1) shall review:
(A) any account prepared under Subchapter A,
Chapter 1163; and
(B) any report prepared under Subchapter C,
Chapter 1163 or Subsection (a-1); and
(2) may use any other method to review a guardianship
under Section 1201.052 that is determined appropriate by the court
according to the court's caseload and available resources.
SECTION 11. Section 1202.101, Estates Code, is amended to
read as follows:
Sec. 1202.101. APPOINTMENT OF ATTORNEY AD LITEM. (a)
Unless the ward retains an attorney under Section 1202.103, the
[The] court shall appoint an attorney ad litem to represent a ward
in a proceeding for the complete restoration of the ward's capacity
or for the modification of the ward's guardianship. Unless
otherwise provided by the court, the attorney ad litem shall
represent the ward only for purposes of the restoration or
modification proceeding. The attorney ad litem shall represent the
ward's interests, including the ward's expressed wishes.
(b) The attorney ad litem has an attorney-client
relationship with the ward the attorney ad litem is appointed to
represent under this section.
SECTION 12. Section 1202.152, Estates Code, is amended by
amending Subsections (a) and (c) and adding Subsections (a-1),
(a-2), and (a-3) to read as follows:
(a) Subject to Section 1202.1521, the applicant must
present to the court and the [The] court shall consider a written
letter or certificate as evidence of capacity, or sufficient
capacity with supports and services, at a hearing under Section
1202.151 from:
(1) a physician licensed in this state, if the ward's
incapacity resulted from a physical condition or mental condition;
or
(2) a psychologist licensed in this state or certified
by the Health and Human Services Commission to perform the
examination, in accordance with rules adopted by the executive
commissioner of the commission governing examinations of that kind,
if the ward's incapacity resulted from a mental condition.
(a-1) The physician or psychologist who provides the letter
or certificate under Subsection (a) must:
(1) have experience examining individuals with the
physical or mental condition resulting in the ward's incapacity; or
(2) have an established patient-provider relationship
with the ward.
(a-2) The letter or certificate required by Subsection (a)
must be:
(1) signed by the physician or psychologist; and
(2) dated:
(A) not earlier than the 120th day before the
date the application was filed; or
(B) after the date the application was filed but
before the date of the hearing.
(a-3) The court may consider the following evidence of
capacity, or sufficient capacity with supports and services, at a
hearing under Section 1202.151:
(1) a statement from a representative of the local
mental health authority or the local intellectual and developmental
disability authority listing services received by the ward and the
effectiveness of those services;
(2) medical records;
(3) affidavits of treating professionals regarding
the effectiveness of supports and services the ward is receiving;
(4) documentation from a health care provider
providing supports or services to the ward under Medicaid,
including a Medicaid waiver program authorized under Section
1915(c) of the federal Social Security Act (42 U.S.C. Section
1396n);
(5) an affidavit of the ward's employer or day
habilitation program manager regarding the ward's ability to
perform the necessary tasks;
(6) documentation from the United States Social
Security Administration identifying the ward's representative
payee; or
(7) any other evidence demonstrating the ward's
capacity [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 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) If the court determines it is necessary, the court shall
[may] appoint a physician or psychologist to complete an
examination of the ward. The physician or psychologist must be
chosen by the ward, provided, however, that if the ward makes no
choice, the ward's physician or psychologist of choice is not
available, or additional information is needed or required after an
examination by the ward's physician or psychologist of choice, the
court may appoint the necessary physicians or psychologists to
examine the ward. A physician appointed by the court must examine
the ward in the same manner and to the same extent as a ward is
examined by a physician under Section 1101.103 or 1101.104.
SECTION 13. Subchapter D, Chapter 1202, Estates Code, is
amended by adding Section 1202.1521 to read as follows:
Sec. 1202.1521. PHYSICIAN'S LETTER OR CERTIFICATE:
REQUIREMENT IF ALLEGED INCAPACITY BASED ON INTELLECTUAL
DISABILITY. If an intellectual disability is the basis of a ward's
alleged incapacity, the written letter or certificate presented
under Section 1202.152(a), instead of containing the information
required by Section 1202.152(b), must:
(1) state, in the physician's or psychologist's
opinion, whether the ward has the capacity, or sufficient capacity
with supports and services, to do any of the activities listed in
Section 1202.152(b)(1);
(2) state how or in what manner the ward's ability to
make or communicate reasonable decisions concerning himself or
herself is affected by the ward's mental capacity; and
(3) include any other information required by the
court.
SECTION 14. Subchapter A, Chapter 22, Government Code, is
amended by adding Section 22.0133 to read as follows:
Sec. 22.0133. JUDICIAL, COURT INVESTIGATOR, AND COURT
VISITOR TRAINING RELATED TO GUARDIANSHIPS. The supreme court, in
consultation with the Judicial Branch Certification Commission,
shall ensure that at least one hour of training related to
alternatives to guardianships and supports and services that are
available to a proposed ward is provided to each judge with
jurisdiction to hear a guardianship proceeding, each court
investigator appointed under Section 1054.156, Estates Code, and
each court visitor appointed under Section 1054.103, Estates Code,
at least once every two years.
SECTION 15. Sections 1202.054(b-1) and (d), Estates Code,
are repealed.
SECTION 16. (a) Except as otherwise provided by this
section, the changes in law made by this Act apply to:
(1) a guardianship proceeding created before, on, or
after the effective date of this Act; and
(2) an application for a guardianship pending on, or
filed on or after, the effective date of this Act.
(b) The changes in law made by this Act to Section 1202.152,
Estates Code, apply only to a proceeding for the complete
restoration of capacity or modification of a guardianship commenced
on or after the effective date of this Act. A proceeding described
by this section commenced before the effective date of this Act is
governed by the law in effect on the date the proceeding was
commenced, and the former law is continued in effect for that
purpose.
SECTION 17. (a) Not later than December 1, 2023, the Texas
Supreme Court shall adopt the rules necessary to provide the
training required under Section 22.0133, Government Code, as added
by this Act.
(b) Notwithstanding Section 22.0133, Government Code, as
added by this Act, a judge who is in office on the effective date of
this Act or a court investigator or court visitor described by
Section 22.0133, Government Code, as added by this Act, who is
appointed on or before the effective date of this Act must complete
the training required by Section 22.0133, Government Code, as added
by this Act, not later than December 1, 2025.
SECTION 18. This Act takes effect September 1, 2023.