Texas 2023 - 88th 3rd C.S.

Texas Senate Bill SB24 Compare Versions

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1	1	88S30103 EAS-F
2	2	By: Zaffirini S.B. No. 24
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to guardianships for persons who are incapacitated;
8	8	changing a fee.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 1023.002(c), Estates Code, is amended to
11	11	read as follows:
12	12	(c) If it appears to the court at any time before the
13	13	guardianship is closed that the proceeding was commenced in a court
14	14	that did not have venue over the proceeding, the court shall, on the
15	15	application of any interested person, transfer the proceeding to
16	16	the proper county in the manner prescribed by Section 1023.006.
17	17	SECTION 2. Section 1023.004(a), Estates Code, is amended to
18	18	read as follows:
19	19	(a) On filing an application or on motion of a court to
20	20	transfer a guardianship to another county under Section 1023.002 or
21	21	1023.003, the sureties on the bond of the guardian shall be cited by
22	22	a qualified delivery method [personal service] to appear and show
23	23	cause why the guardianship should not be transferred.
24	24	SECTION 3. Section 1023.005(c), Estates Code, is amended to
25	25	read as follows:
26	26	(c) On receipt of an order described by Subsection (a), the
27	27	clerk of the court to which the guardianship is transferred
28	28	[county] shall accept the transfer of the guardianship.
29	29	SECTION 4. Sections 1023.006(a), (b), (c), (d), (e), and
30	30	(g), Estates Code, are amended to read as follows:
31	31	(a) Not later than the 10th working day after the date an
32	32	order of transfer is signed under Section 1023.002 or 1023.005, the
33	33	clerk shall record any unrecorded papers of the guardianship
34	34	required to be recorded. On payment of the clerk's fee, the clerk
35	35	shall send, using the electronic filing system established under
36	36	Section 72.031, Government Code, to the county clerk of the county
37	37	to which the guardianship was ordered transferred:
38	38	(1) a transfer certificate and certified index of
39	39	transferred documents;
40	40	(2) a copy of each [final] order;
41	41	(3) a copy of the order of transfer signed by the
42	42	transferring court;
43	43	(4) a copy of the original papers filed in the
44	44	transferring court, including any papers previously received on
45	45	transfer from a court in another county;
46	46	(5) a copy of the transfer certificate and certified
47	47	index of transferred documents from each previous transfer, if
48	48	applicable; and
49	49	(6) a bill of any costs accrued in the transferring
50	50	court.
51	51	(b) The clerk of the transferring court shall use the
52	52	standardized transfer certificate and certified index of
53	53	transferred documents form developed by the Office of Court
54	54	Administration of the Texas Judicial System under Section 72.037,
55	55	Government Code, when transferring a proceeding under this section.
56	56	(c) The clerk of the transferring court shall keep a copy of
57	57	the documents transferred under Subsection (a), including
58	58	transferred pleadings, orders, and all other papers filed into the
59	59	case record.
60	60	(d) The clerk of the court to which the proceeding is
61	61	transferred shall, subject to Section 1023.005:
62	62	(1) accept documents transferred under Subsection
63	63	(a);
64	64	(2) docket the suit; and
65	65	(3) notify, using the electronic filing system
66	66	established under Section 72.031, Government Code, all parties, the
67	67	clerk of the transferring court, and, if appropriate, the
68	68	transferring court's local registry that the suit has been
69	69	docketed.
70	70	(e) The clerk of the transferee court shall physically or
71	71	electronically mark or stamp the transfer certificate and certified
72	72	index of transferred documents to evidence the date and time of
73	73	acceptance under Subsection (d), but may not physically or
74	74	electronically mark or stamp any other document transferred under
75	75	Subsection (a).
76	76	(g) The clerks of both the transferee and transferring
77	77	courts may each produce under Chapter 51, Government Code,
78	78	certified or uncertified copies of documents transferred under
79	79	Subsection (a) but must include a copy of the transfer certificate
80	80	and certified index of transferred documents with each document
81	81	produced.
82	82	SECTION 5. Chapter 1023, Estates Code, is amended by adding
83	83	Section 1023.0071 to read as follows:
84	84	Sec. 1023.0071. TRANSFER FEE. (a) The fee for filing a
85	85	guardianship case transferred from another county under this
86	86	chapter in which the guardian has previously been appointed and
87	87	qualified in accordance with this title is $45 payable to the clerk
88	88	of the court to which the case is transferred. No portion of this
89	89	fee may be sent to the state.
90	90	(b) A party may not be assessed any other filing fee by the
91	91	clerk of the court to which the guardianship is transferred in
92	92	connection with the filing and docketing of the transferred case.
93	93	(c) To the extent that this section conflicts with another
94	94	state statute, the Texas Rules of Civil Procedure, or other rules,
95	95	this section prevails.
96	96	SECTION 6. Section 1105.157, Estates Code, is amended by
97	97	amending Subsections (a) and (d) and adding Subsection (d-1) to
98	98	read as follows:
99	99	(a) Instead of giving a surety or sureties on a bond, or to
100	100	reduce the amount of a bond, the guardian of an estate may deposit
101	101	the guardian's own cash or securities acceptable to the court with:
102	102	(1) a financial institution as defined by Section
103	103	201.101, Finance Code, that has its main office or a branch office
104	104	in this state; or
105	105	(2) the registry of the court, for which the clerk of
106	106	the court shall issue a receipt.
107	107	(d) A receipt issued by a depository under Subsection (c) or
108	108	a record of deposit to the registry of the court must be attached to
109	109	the guardian's bond and must be in substantially the following
110	110	form:
111	111	The State of Texas
112	112	County of ________ (insert name of county)
113	113	Know all persons by these presents that I/we, ___________
114	114	(name of each principal), as principal, have deposited cash or
115	115	securities as evidenced by the attached receipt or record of
116	116	deposit issued by _____ (name of depository where cash or
117	117	securities are deposited or the name of the court) on _____ (date of
118	118	deposit), are held and firmly bound to the judge of ______ (insert
119	119	reference to appropriate judge), and that judge's successors in
120	120	office, in the sum of $______, having been so deposited;
121	121	conditioned that the above bound principal or principals, appointed
122	122	by the judge as guardian or temporary guardian of the person or of
123	123	the estate, or both, of _________(name of ward and whether the
124	124	person is a minor or is an incapacitated person other than a minor),
125	125	shall well and truly perform all of the duties required of the
126	126	guardian or temporary guardian by law under appointment.
127	127	(d-1) The guardian's bond and depository receipt, if
128	128	applicable, shall [and] be delivered to and filed by the county
129	129	clerk after the bond [receipt] is approved by the judge.
130	130	SECTION 7. Section 1151.051(c), Estates Code, is amended to
131	131	read as follows:
132	132	(c) A guardian of the person has:
133	133	(1) the right to have physical possession of the ward
134	134	and to establish the ward's legal domicile;
135	135	(2) the duty to provide care, supervision, and
136	136	protection for the ward;
137	137	(3) the duty to provide the ward with clothing, food,
138	138	medical care, and shelter;
139	139	(4) the power to consent to medical, psychiatric, and
140	140	surgical treatment other than the inpatient psychiatric commitment
141	141	of the ward;
142	142	(5) on application to and order of the court, the power
143	143	to establish a trust in accordance with 42 U.S.C. Section
144	144	1396p(d)(4)(B) and direct that the income of the ward as defined by
145	145	that section be paid directly to the trust, solely for the purpose
146	146	of the ward's eligibility for medical assistance under Chapter 32,
147	147	Human Resources Code; [and]
148	148	(6) the duty to notify the court, as soon as
149	149	practicable, if the ward has died or is admitted to a medical
150	150	facility for acute care for a period of three or more days;
151	151	(7) the duty to notify the court not later than the
152	152	30th day after the date the ward's residence or address has changed;
153	153	(8) the duty to notify the court not later than the
154	154	30th day after the date of a change in the guardian's residence,
155	155	address, phone number, or any other information used by the court to
156	156	contact the guardian; and
157	157	(9) the power to sign documents necessary or
158	158	appropriate to facilitate employment of the ward if:
159	159	(A) the guardian was appointed with full
160	160	authority over the person of the ward under Section 1101.151; or
161	161	(B) the power is specified in the court order
162	162	appointing the guardian with limited powers over the person of the
163	163	ward under Section 1101.152.
164	164	SECTION 8. Section 1155.151(a), Estates Code, is amended to
165	165	read as follows:
166	166	(a) In a guardianship proceeding, the court costs of the
167	167	proceeding, including the costs described by Subsection (a-1),
168	168	shall, except as provided by Subsection (c), be paid as follows, and
169	169	the court shall issue the judgment accordingly:
170	170	(1) out of the guardianship estate, if a guardian of
171	171	the estate has been created for the benefit of the ward and the
172	172	court determines it is in the ward's best interest;
173	173	(2) out of the management trust, if a management trust
174	174	has been created for the benefit of the ward under Chapter 1301 and
175	175	the court determines it is in the ward's best interest;
176	176	(3) by the party to the proceeding who incurred the
177	177	costs, unless that party filed, on the party's own behalf, an
178	178	affidavit of inability to pay the costs under Rule 145, Texas Rules
179	179	of Civil Procedure, that shows the party is unable to afford the
180	180	costs, if:
181	181	(A) there is no guardianship estate or [no]
182	182	management trust that has been created for the ward's benefit; or
183	183	(B) the assets of the guardianship estate or
184	184	management trust, as appropriate, are insufficient to pay the
185	185	costs; or
186	186	(4) out of the county treasury if:
187	187	(A) there is no guardianship estate or management
188	188	trust or the assets of the guardianship estate or management trust,
189	189	as appropriate, are insufficient to pay the costs; and
190	190	(B) the party to the proceeding who incurred the
191	191	costs filed, on the party's own behalf, an affidavit of inability to
192	192	pay the costs under Rule 145, Texas Rules of Civil Procedure, that
193	193	shows the party is unable to afford the costs.
194	194	SECTION 9. The heading to Section 1156.052, Estates Code,
195	195	is amended to read as follows:
196	196	Sec. 1156.052. ALLOWANCE FOR WARD'S SPOUSE, MINOR CHILDREN,
197	197	OR INCAPACITATED ADULT CHILDREN [DEPENDENT].
198	198	SECTION 10. Section 1156.052, Estates Code, is amended by
199	199	amending Subsections (a) and (b) and adding Subsection (d) to read
200	200	as follows:
201	201	(a) Subject to Section 1156.051 and on application to the
202	202	court, the court may order the guardian of the estate of a ward to
203	203	spend money from the ward's estate for the education and
204	204	maintenance of the ward's spouse, minor children, or incapacitated
205	205	adult children [dependent].
206	206	(b) In determining whether to order the expenditure of money
207	207	from a ward's estate for the ward's spouse, minor children, or
208	208	incapacitated adult children [dependent], as appropriate, under
209	209	this section, the court shall consider:
210	210	(1) the circumstances of the ward, the ward's spouse,
211	211	and the ward's minor children and incapacitated adult children
212	212	[dependents];
213	213	(2) the ability and duty of the ward's spouse to
214	214	support himself or herself and the ward's minor children or
215	215	incapacitated adult children [dependent];
216	216	(3) the size of the ward's estate;
217	217	(4) a beneficial interest the ward or the ward's
218	218	spouse, minor children, or incapacitated adult children have [or
219	219	dependent has] in a trust; and
220	220	(5) an existing estate plan, including a trust or
221	221	will, that provides a benefit to the ward's spouse, minor children,
222	222	or incapacitated adult children [dependent].
223	223	(d) Copies of the notices sent under Subsection (c) must be
224	224	filed with the court with a copy of the proof of delivery receipt
225	225	for each notice sent.
226	226	SECTION 11. Section 1203.006, Estates Code, is amended to
227	227	read as follows:
228	228	Sec. 1203.006. REQUIREMENTS FOR DISCHARGE. (a) A
229	229	guardian applying to resign may not be discharged until:
230	230	(1) the resignation application has been heard;
231	231	(2) the exhibit and final account or report required
232	232	under Section 1203.001 has been examined, settled, and approved;
233	233	and
234	234	(3) the guardian [applicant] has satisfied the court
235	235	that the guardian [applicant] has:
236	236	(A) delivered any estate property remaining in
237	237	the guardian's [applicant's] possession; or
238	238	(B) complied with all court orders relating to
239	239	the guardian's [applicant's] trust as guardian.
240	240	(b) When a guardian applying to resign has fully complied
241	241	with the court orders, the court shall enter an order:
242	242	(1) accepting the resignation; [and]
243	243	(2) discharging the guardian;
244	244	(3) canceling the letters issued to the guardian; and
245	245	(4) [applicant and,] if the guardian [applicant] is
246	246	under bond, discharging and releasing the [applicant's] sureties on
247	247	the guardian's bond.
248	248	SECTION 12. Section 1204.105, Estates Code, is amended by
249	249	adding Subsection (h) to read as follows:
250	250	(h) The guardian of the estate shall file an affidavit sworn
251	251	to by the guardian or a certificate signed by the guardian's
252	252	attorney stating:
253	253	(1) the name of each person to whom citation was served
254	254	under this section, indicating the method of service;
255	255	(2) the name of each person executing a waiver of
256	256	citation under Subsection (d); and
257	257	(3) that each person whose whereabouts are known or
258	258	can be reasonably ascertained who is entitled to citation under
259	259	this section was provided a copy of the account for final
260	260	settlement, indicating the method of delivery for each person to
261	261	whom a copy was provided.
262	262	SECTION 13. Section 1204.151, Estates Code, is amended to
263	263	read as follows:
264	264	Sec. 1204.151. DISCHARGE OF GUARDIAN WHEN NO ESTATE
265	265	PROPERTY REMAINS. The court shall enter an order discharging a
266	266	guardian from the guardian's trust, canceling the letters issued to
267	267	the guardian of the estate, and closing the guardianship estate if,
268	268	on final settlement of the estate, none of the estate remains in the
269	269	guardian's possession.
270	270	SECTION 14. Section 1204.152, Estates Code, is amended to
271	271	read as follows:
272	272	Sec. 1204.152. DISCHARGE OF GUARDIAN WHEN ESTATE FULLY
273	273	ADMINISTERED. The court shall enter an order discharging a
274	274	guardian of the estate from the guardian's trust, canceling the
275	275	letters issued to the guardian of the estate, and declaring the
276	276	estate closed when:
277	277	(1) the guardian has fully administered the estate in
278	278	accordance with this title and the court's orders;
279	279	(2) the guardian's account for final settlement has
280	280	been approved; and
281	281	(3) the guardian has delivered all of the estate
282	282	remaining in the guardian's possession to any person entitled to
283	283	receive the estate.
284	284	SECTION 15. Section 1251.005(a), Estates Code, is amended
285	285	to read as follows:
286	286	(a) On the filing of an application for temporary
287	287	guardianship, the court clerk shall issue:
288	288	(1) citation to be personally served on:
289	289	(A) the proposed ward; and
290	290	(B) the proposed temporary guardian named in the
291	291	application, if that person is not the applicant; and
292	292	(2) notice to be served in the manner provided under
293	293	Rule 21a, Texas Rules of Civil Procedure, on the proposed ward's
294	294	appointed attorney.
295	295	SECTION 16. Section 1023.008, Estates Code, is repealed.
296	296	SECTION 17. (a) Except as otherwise provided by this
297	297	section, the changes in law made by this Act apply to a guardianship
298	298	created before, on, or after the effective date of this Act.
299	299	(b) Sections 1023.002(c), 1023.004(a), 1023.005(c), and
300	300	1023.006(a), (b), (c), (d), (e), and (g), Estates Code, as amended
301	301	by this Act, and Section 1023.0071, Estates Code, as added by this
302	302	Act, apply only to an application filed or motion made to transfer a
303	303	guardianship on or after the effective date of this Act. An
304	304	application filed or motion made before the effective date of this
305	305	Act is governed by the law in effect on the date the application was
306	306	filed or motion was made, and the former law is continued in effect
307	307	for that purpose.
308	308	(c) Sections 1156.052 and 1251.005(a), Estates Code, as
309	309	amended by this Act, apply only to an application filed on or after
310	310	the effective date of this Act. An application filed before the
311	311	effective date of this Act is governed by the law in effect on the
312	312	date the application was filed, and the former law is continued in
313	313	effect for that purpose.
314	314	SECTION 18. This Act takes effect on the 91st day after the
315	315	last day of the legislative session.