Texas 2023 - 88th Regular

Texas Senate Bill SB2549 Compare Versions

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1	1	88R1873 KFF-D
2	2	By: Middleton S.B. No. 2549
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 his or her childhood;
60	60	(B) has never been the subject of an allegation,
61	61	complaint, or investigation concerning the abuse, neglect, or
62	62	exploitation of the proposed ward;
63	63	(C) seeks to be appointed guardian of the person
64	64	of the proposed ward; and
65	65	(D) is not disqualified from serving as guardian
66	66	under Subchapter H, Chapter 1104;
67	67	(2) at least one written letter or certificate that
68	68	meets the requirements of:
69	69	(A) Sections 1101.103(a) and (b); or
70	70	(B) Section 1101.104, except that the period
71	71	prescribed by Section 1101.104(2) would be calculated from the date
72	72	the application is filed instead of the hearing date; and
73	73	(3) a written request that:
74	74	(A) the court make the findings required by
75	75	Section 1101.101 and appoint the parent as guardian of the person of
76	76	the proposed ward in accordance with this section without the
77	77	necessity of an investigation by a court investigator under Section
78	78	1054.151; and
79	79	(B) after appointment and qualification of the
80	80	applicant as guardian of the person of the ward, no other action
81	81	shall be had in the probate court in relation to the guardianship of
82	82	the person of the ward other than the review required by Section
83	83	1201.052(b).
84	84	(c) If, following a written request under Subsection (b)(3)
85	85	and on receipt of an affidavit that complies with Subsection (b)(1)
86	86	and a letter or certificate that complies with Subsection (b)(2),
87	87	the court is able to make the findings required by Section 1101.101,
88	88	the court, notwithstanding Subchapter C, Chapter 1104, shall
89	89	appoint the parent as guardian of the proposed ward's person
90	90	without appointing a court investigator or the continued
91	91	appointment of an attorney ad litem unless:
92	92	(1) the parent is disqualified from serving as
93	93	guardian under Subchapter H, Chapter 1104;
94	94	(2) the court has any reason to believe that one or
95	95	more of the assertions set out in the affidavit are untrue; or
96	96	(3) the court finds that the appointment is not in the
97	97	best interest of the proposed ward.
98	98	(d) A guardianship created under this section is considered
99	99	an independent guardianship of the person of a ward, and a guardian
100	100	appointed under this section is considered an independent guardian
101	101	of the person of a ward.
102	102	Sec. 1103A.002. SEALING OF CERTAIN RECORDS. (a) The court
103	103	shall seal a written letter or certificate submitted under Section
104	104	1103A.001(b) and any other medical record or document examined by
105	105	the court for purposes of this section unless the court finds good
106	106	cause not to seal the document.
107	107	(b) The court's records sealed under this section are not
108	108	open for inspection by any person except:
109	109	(1) on further order of the court after notice to the
110	110	guardian of the person of the ward whose information is sealed and a
111	111	finding of good cause; or
112	112	(2) in connection with a criminal or civil proceeding
113	113	as otherwise provided by law.
114	114	Sec. 1103A.003. PETITION FOR CONVERSION OF GUARDIANSHIP OF
115	115	THE PERSON TO INDEPENDENT GUARDIANSHIP OF THE PERSON. (a) This
116	116	section applies only to a guardianship of the person of a ward
117	117	created before September 1, 2023, if on the date the application for
118	118	guardianship was filed under Section 1101.001 or 1103.001:
119	119	(1) the ward met the description of a proposed ward
120	120	under Section 1103A.001(a)(1); and
121	121	(2) the guardian was the parent and primary caregiver
122	122	of the ward.
123	123	(b) The guardian in a guardianship to which this section
124	124	applies may petition the court with jurisdiction over the
125	125	guardianship to authorize that the guardianship of the person be
126	126	treated on a prospective basis as if the guardianship was created
127	127	and, if applicable, the guardian of the person appointed, under
128	128	Section 1103A.001.
129	129	SECTION 5. Section 1105.101(c), Estates Code, is amended to
130	130	read as follows:
131	131	(c) The court shall issue letters of guardianship of the
132	132	person to a person without the requirement of a bond if:
133	133	(1) the person is:
134	134	(A) a parent of the ward appointed under Section
135	135	1103A.001 who is not also appointed as guardian of the estate of the
136	136	ward; or
137	137	(B) named to be appointed guardian in a will made
138	138	by a surviving parent that is probated by a court in this state, or
139	139	in a written declaration made by a surviving parent, and the will or
140	140	declaration directs that the guardian serve without a bond; and
141	141	(2) the court finds that the guardian is qualified.
142	142	SECTION 6. Section 1106.002, Estates Code, is amended to
143	143	read as follows:
144	144	Sec. 1106.002. EXPIRATION OF LETTERS OF GUARDIANSHIP. (a)
145	145	Except as provided by Subsection (b), letters [Letters] of
146	146	guardianship expire one year and four months after the date the
147	147	letters are issued, unless renewed.
148	148	(b) Unless the court finds that it is not in the best
149	149	interest of the ward, letters of guardianship issued to a guardian
150	150	of the person of a ward appointed under Section 1103A.001 do not
151	151	expire unless the guardian is removed or would otherwise be
152	152	ineligible to serve as guardian.
153	153	SECTION 7. Section 1163.101, Estates Code, is amended by
154	154	amending Subsection (a) and adding Subsection (a-1) to read as
155	155	follows:
156	156	(a) Except as provided by Subsection (a-1), once [Once] each
157	157	year for the duration of the guardianship, a guardian of the person
158	158	shall file with the court a report that contains the information
159	159	required by this section.
160	160	(a-1) Unless the court finds that it is not in the best
161	161	interest of the ward, a guardian of the person of a ward appointed
162	162	under Section 1103A.001 is not required to file an annual report
163	163	under this section.
164	164	SECTION 8. The heading to Subchapter B, Chapter 1201,
165	165	Estates Code, is amended to read as follows:
166	166	SUBCHAPTER B. [ANNUAL] DETERMINATION TO CONTINUE, MODIFY, OR
167	167	TERMINATE GUARDIANSHIP
168	168	SECTION 9. Section 1201.052, Estates Code, is amended to
169	169	read as follows:
170	170	Sec. 1201.052. ANNUAL OR OTHER DETERMINATION. (a) To
171	171	determine whether a guardianship should be continued, modified, or
172	172	terminated, the court in which the guardianship proceeding is
173	173	pending:
174	174	(1) shall, except as provided by Subsection (b),
175	175	review annually each guardianship in which the application to
176	176	create the guardianship was filed after September 1, 1993; and
177	177	(2) may review annually any other guardianship.
178	178	(b) To determine whether a guardianship of the person of a
179	179	ward created under Section 1103A.001 should be continued, modified,
180	180	or terminated, the court in which the guardianship proceeding is
181	181	pending shall review the guardianship of the person at the
182	182	discretion of the court but not more frequently than once every five
183	183	years unless the guardian of the person of the ward is also the
184	184	guardian of the estate of the ward.
185	185	(c) Notwithstanding Subsection (b), on receipt of a claim
186	186	that the guardianship is no longer in the best interest of the ward,
187	187	the court may review the matter and take any action the court
188	188	determines necessary.
189	189	SECTION 10. The changes in law made by this Act apply to a
190	190	guardianship proceeding that is pending or commenced on or after
191	191	the effective date of this Act.
192	192	SECTION 11. This Act takes effect immediately if it
193	193	receives a vote of two-thirds of all the members elected to each
194	194	house, as provided by Section 39, Article III, Texas Constitution.
195	195	If this Act does not receive the vote necessary for immediate
196	196	effect, this Act takes effect September 1, 2023.