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A BILL TO BE ENTITLED
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AN ACT
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relating to guardianships for persons who are incapacitated; |
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changing a fee. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 1023.002(c), Estates Code, is amended to |
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read as follows: |
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(c) If it appears to the court at any time before the |
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guardianship is closed that the proceeding was commenced in a court |
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that did not have venue over the proceeding, the court shall, on the |
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application of any interested person, transfer the proceeding to |
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the proper county in the manner prescribed by Section 1023.006. |
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SECTION 2. Section 1023.004(a), Estates Code, is amended to |
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read as follows: |
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(a) On filing an application or on motion of a court to |
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transfer a guardianship to another county under Section 1023.002 or |
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1023.003, the sureties on the bond of the guardian shall be cited by |
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a qualified delivery method [personal service] to appear and show |
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cause why the guardianship should not be transferred. |
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SECTION 3. Section 1023.005(c), Estates Code, is amended to |
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read as follows: |
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(c) On receipt of an order described by Subsection (a), the |
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clerk of the court to which the guardianship is transferred |
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[county] shall accept the transfer of the guardianship. |
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SECTION 4. Sections 1023.006(a), (b), (c), (d), (e), and |
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(g), Estates Code, are amended to read as follows: |
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(a) Not later than the 10th working day after the date an |
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order of transfer is signed under Section 1023.002 or 1023.005, the |
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clerk shall record any unrecorded papers of the guardianship |
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required to be recorded. On payment of the clerk's fee, the clerk |
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shall send, using the electronic filing system established under |
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Section 72.031, Government Code, to the county clerk of the county |
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to which the guardianship was ordered transferred: |
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(1) a transfer certificate and certified index of |
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transferred documents; |
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(2) a copy of each [final] order; |
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(3) a copy of the order of transfer signed by the |
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transferring court; |
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(4) a copy of the original papers filed in the |
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transferring court, including any papers previously received on |
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transfer from a court in another county; |
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(5) a copy of the transfer certificate and certified |
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index of transferred documents from each previous transfer, if |
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applicable; and |
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(6) a bill of any costs accrued in the transferring |
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court. |
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(b) The clerk of the transferring court shall use the |
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standardized transfer certificate and certified index of |
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transferred documents form developed by the Office of Court |
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Administration of the Texas Judicial System under Section 72.037, |
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Government Code, when transferring a proceeding under this section. |
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(c) The clerk of the transferring court shall keep a copy of |
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the documents transferred under Subsection (a), including |
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transferred pleadings, orders, and all other papers filed into the |
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case record. |
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(d) The clerk of the court to which the proceeding is |
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transferred shall, subject to Section 1023.005: |
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(1) accept documents transferred under Subsection |
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(a); |
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(2) docket the suit; and |
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(3) notify, using the electronic filing system |
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established under Section 72.031, Government Code, all parties, the |
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clerk of the transferring court, and, if appropriate, the |
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transferring court's local registry that the suit has been |
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docketed. |
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(e) The clerk of the transferee court shall physically or |
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electronically mark or stamp the transfer certificate and certified |
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index of transferred documents to evidence the date and time of |
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acceptance under Subsection (d), but may not physically or |
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electronically mark or stamp any other document transferred under |
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Subsection (a). |
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(g) The clerks of both the transferee and transferring |
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courts may each produce under Chapter 51, Government Code, |
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certified or uncertified copies of documents transferred under |
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Subsection (a) but must include a copy of the transfer certificate |
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and certified index of transferred documents with each document |
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produced. |
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SECTION 5. Chapter 1023, Estates Code, is amended by adding |
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Section 1023.0071 to read as follows: |
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Sec. 1023.0071. TRANSFER FEE. (a) The fee for filing a |
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guardianship case transferred from another county under this |
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chapter in which the guardian has previously been appointed and |
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qualified in accordance with this title is $45 payable to the clerk |
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of the court to which the case is transferred. No portion of this |
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fee may be sent to the state. |
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(b) A party may not be assessed any other filing fee by the |
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clerk of the court to which the guardianship is transferred in |
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connection with the filing and docketing of the transferred case. |
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(c) To the extent that this section conflicts with another |
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state statute, the Texas Rules of Civil Procedure, or other rules, |
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this section prevails. |
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SECTION 6. Section 1105.157, Estates Code, is amended by |
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amending Subsections (a) and (d) and adding Subsection (d-1) to |
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read as follows: |
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(a) Instead of giving a surety or sureties on a bond, or to |
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reduce the amount of a bond, the guardian of an estate may deposit |
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the guardian's own cash or securities acceptable to the court with: |
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(1) a financial institution as defined by Section |
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201.101, Finance Code, that has its main office or a branch office |
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in this state; or |
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(2) the registry of the court, for which the clerk of |
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the court shall issue a receipt. |
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(d) A receipt issued by a depository under Subsection (c) or |
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a record of deposit to the registry of the court must be attached to |
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the guardian's bond and must be in substantially the following |
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form: |
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The State of Texas |
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County of ________ (insert name of county) |
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Know all persons by these presents that I/we, ___________ |
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(name of each principal), as principal, have deposited cash or |
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securities as evidenced by the attached receipt or record of |
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deposit issued by _____ (name of depository where cash or |
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securities are deposited or the name of the court) on _____ (date of |
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deposit), are held and firmly bound to the judge of ______ (insert |
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reference to appropriate judge), and that judge's successors in |
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office, in the sum of $______, having been so deposited; |
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conditioned that the above bound principal or principals, appointed |
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by the judge as guardian or temporary guardian of the person or of |
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the estate, or both, of _________(name of ward and whether the |
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person is a minor or is an incapacitated person other than a minor), |
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shall well and truly perform all of the duties required of the |
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guardian or temporary guardian by law under appointment. |
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(d-1) The guardian's bond and depository receipt, if |
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applicable, shall [and] be delivered to and filed by the county |
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clerk after the bond [receipt] is approved by the judge. |
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SECTION 7. Section 1151.051(c), Estates Code, is amended to |
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read as follows: |
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(c) A guardian of the person has: |
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(1) the right to have physical possession of the ward |
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and to establish the ward's legal domicile; |
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(2) the duty to provide care, supervision, and |
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protection for the ward; |
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(3) the duty to provide the ward with clothing, food, |
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medical care, and shelter; |
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(4) the power to consent to medical, psychiatric, and |
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surgical treatment other than the inpatient psychiatric commitment |
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of the ward; |
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(5) on application to and order of the court, the power |
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to establish a trust in accordance with 42 U.S.C. Section |
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1396p(d)(4)(B) and direct that the income of the ward as defined by |
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that section be paid directly to the trust, solely for the purpose |
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of the ward's eligibility for medical assistance under Chapter 32, |
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Human Resources Code; [and] |
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(6) the duty to notify the court, as soon as |
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practicable, if the ward has died or is admitted to a medical |
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facility for acute care for a period of three or more days; |
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(7) the duty to notify the court not later than the |
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30th day after the date the ward's residence or address has changed; |
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(8) the duty to notify the court not later than the |
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30th day after the date of a change in the guardian's residence, |
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address, phone number, or any other information used by the court to |
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contact the guardian; and |
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(9) the power to sign documents necessary or |
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appropriate to facilitate employment of the ward if: |
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(A) the guardian was appointed with full |
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authority over the person of the ward under Section 1101.151; or |
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(B) the power is specified in the court order |
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appointing the guardian with limited powers over the person of the |
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ward under Section 1101.152. |
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SECTION 8. Section 1155.151(a), Estates Code, is amended to |
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read as follows: |
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(a) In a guardianship proceeding, the court costs of the |
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proceeding, including the costs described by Subsection (a-1), |
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shall, except as provided by Subsection (c), be paid as follows, and |
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the court shall issue the judgment accordingly: |
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(1) out of the guardianship estate, if a guardian of |
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the estate has been created for the benefit of the ward and the |
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court determines it is in the ward's best interest; |
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(2) out of the management trust, if a management trust |
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has been created for the benefit of the ward under Chapter 1301 and |
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the court determines it is in the ward's best interest; |
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(3) by the party to the proceeding who incurred the |
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costs, unless that party filed, on the party's own behalf, an |
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affidavit of inability to pay the costs under Rule 145, Texas Rules |
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of Civil Procedure, that shows the party is unable to afford the |
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costs, if: |
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(A) there is no guardianship estate or [no] |
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management trust that has been created for the ward's benefit; or |
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(B) the assets of the guardianship estate or |
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management trust, as appropriate, are insufficient to pay the |
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costs; or |
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(4) out of the county treasury if: |
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(A) there is no guardianship estate or management |
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trust or the assets of the guardianship estate or management trust, |
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as appropriate, are insufficient to pay the costs; and |
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(B) the party to the proceeding who incurred the |
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costs filed, on the party's own behalf, an affidavit of inability to |
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pay the costs under Rule 145, Texas Rules of Civil Procedure, that |
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shows the party is unable to afford the costs. |
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SECTION 9. The heading to Section 1156.052, Estates Code, |
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is amended to read as follows: |
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Sec. 1156.052. ALLOWANCE FOR WARD'S SPOUSE, MINOR CHILDREN, |
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OR INCAPACITATED ADULT CHILDREN [DEPENDENT]. |
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SECTION 10. Section 1156.052, Estates Code, is amended by |
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amending Subsections (a) and (b) and adding Subsection (d) to read |
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as follows: |
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(a) Subject to Section 1156.051 and on application to the |
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court, the court may order the guardian of the estate of a ward to |
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spend money from the ward's estate for the education and |
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maintenance of the ward's spouse, minor children, or incapacitated |
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adult children [dependent]. |
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(b) In determining whether to order the expenditure of money |
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from a ward's estate for the ward's spouse, minor children, or |
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incapacitated adult children [dependent], as appropriate, under |
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this section, the court shall consider: |
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(1) the circumstances of the ward, the ward's spouse, |
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and the ward's minor children and incapacitated adult children |
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[dependents]; |
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(2) the ability and duty of the ward's spouse to |
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support himself or herself and the ward's minor children or |
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incapacitated adult children [dependent]; |
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(3) the size of the ward's estate; |
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(4) a beneficial interest the ward or the ward's |
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spouse, minor children, or incapacitated adult children have [or |
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dependent has] in a trust; and |
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(5) an existing estate plan, including a trust or |
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will, that provides a benefit to the ward's spouse, minor children, |
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or incapacitated adult children [dependent]. |
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(d) Copies of the notices sent under Subsection (c) must be |
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filed with the court with a copy of the proof of delivery receipt |
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for each notice sent. |
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SECTION 11. Section 1203.006, Estates Code, is amended to |
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read as follows: |
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Sec. 1203.006. REQUIREMENTS FOR DISCHARGE. (a) A |
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guardian applying to resign may not be discharged until: |
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(1) the resignation application has been heard; |
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(2) the exhibit and final account or report required |
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under Section 1203.001 has been examined, settled, and approved; |
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and |
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(3) the guardian [applicant] has satisfied the court |
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that the guardian [applicant] has: |
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(A) delivered any estate property remaining in |
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the guardian's [applicant's] possession; or |
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(B) complied with all court orders relating to |
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the guardian's [applicant's] trust as guardian. |
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(b) When a guardian applying to resign has fully complied |
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with the court orders, the court shall enter an order: |
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(1) accepting the resignation; [and] |
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(2) discharging the guardian; |
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(3) canceling the letters issued to the guardian; and |
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(4) [applicant and,] if the guardian [applicant] is |
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under bond, discharging and releasing the [applicant's] sureties on |
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the guardian's bond. |
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SECTION 12. Section 1204.105, Estates Code, is amended by |
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adding Subsection (h) to read as follows: |
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(h) The guardian of the estate shall file an affidavit sworn |
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to by the guardian or a certificate signed by the guardian's |
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attorney stating: |
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(1) the name of each person to whom citation was served |
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under this section, indicating the method of service; |
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(2) the name of each person executing a waiver of |
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citation under Subsection (d); and |
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(3) that each person whose whereabouts are known or |
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can be reasonably ascertained who is entitled to citation under |
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this section was provided a copy of the account for final |
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settlement, indicating the method of delivery for each person to |
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whom a copy was provided. |
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SECTION 13. Section 1204.151, Estates Code, is amended to |
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read as follows: |
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Sec. 1204.151. DISCHARGE OF GUARDIAN WHEN NO ESTATE |
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PROPERTY REMAINS. The court shall enter an order discharging a |
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guardian from the guardian's trust, canceling the letters issued to |
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the guardian of the estate, and closing the guardianship estate if, |
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on final settlement of the estate, none of the estate remains in the |
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guardian's possession. |
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SECTION 14. Section 1204.152, Estates Code, is amended to |
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read as follows: |
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Sec. 1204.152. DISCHARGE OF GUARDIAN WHEN ESTATE FULLY |
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ADMINISTERED. The court shall enter an order discharging a |
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guardian of the estate from the guardian's trust, canceling the |
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letters issued to the guardian of the estate, and declaring the |
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estate closed when: |
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(1) the guardian has fully administered the estate in |
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accordance with this title and the court's orders; |
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(2) the guardian's account for final settlement has |
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been approved; and |
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(3) the guardian has delivered all of the estate |
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remaining in the guardian's possession to any person entitled to |
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receive the estate. |
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SECTION 15. Section 1251.005(a), Estates Code, is amended |
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to read as follows: |
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(a) On the filing of an application for temporary |
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guardianship, the court clerk shall issue: |
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(1) citation to be personally served on: |
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(A) the proposed ward; and |
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(B) the proposed temporary guardian named in the |
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application, if that person is not the applicant; and |
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(2) notice to be served in the manner provided under |
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Rule 21a, Texas Rules of Civil Procedure, on the proposed ward's |
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appointed attorney. |
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SECTION 16. Section 1023.008, Estates Code, is repealed. |
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SECTION 17. (a) Except as otherwise provided by this |
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section, the changes in law made by this Act apply to a guardianship |
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created before, on, or after the effective date of this Act. |
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(b) Sections 1023.002(c), 1023.004(a), 1023.005(c), and |
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1023.006(a), (b), (c), (d), (e), and (g), Estates Code, as amended |
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by this Act, and Section 1023.0071, Estates Code, as added by this |
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Act, apply only to an application filed or motion made to transfer a |
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guardianship on or after the effective date of this Act. An |
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application filed or motion made before the effective date of this |
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Act is governed by the law in effect on the date the application was |
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filed or motion was made, and the former law is continued in effect |
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for that purpose. |
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(c) Sections 1156.052 and 1251.005(a), Estates Code, as |
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amended by this Act, apply only to an application filed on or after |
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the effective date of this Act. An application filed before the |
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effective date of this Act is governed by the law in effect on the |
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date the application was filed, and the former law is continued in |
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effect for that purpose. |
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SECTION 18. This Act takes effect on the 91st day after the |
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last day of the legislative session. |