By: Zaffirini S.B. No. 44
 
 
 
   
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to guardianships for persons who are incapacitated;
  changing a fee.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 1023.002(c), Estates Code, is amended to
  read as follows:
         (c)  If it appears to the court at any time before the
  guardianship is closed that the proceeding was commenced in a court
  that did not have venue over the proceeding, the court shall, on the
  application of any interested person, transfer the proceeding to
  the proper county in the manner prescribed by Section 1023.006.
         SECTION 2.  Section 1023.004(a), Estates Code, is amended to
  read as follows:
         (a)  On filing an application or on motion of a court to
  transfer a guardianship to another county under Section 1023.002 or
  1023.003, the sureties on the bond of the guardian shall be cited by
  a qualified delivery method [personal service] to appear and show
  cause why the guardianship should not be transferred.
         SECTION 3.  Section 1023.005(c), Estates Code, is amended to
  read as follows:
         (c)  On receipt of an order described by Subsection (a), the
  clerk of the court to which the guardianship is transferred 
  [county] shall accept the transfer of the guardianship.
         SECTION 4.  Sections 1023.006(a), (b), (c), (d), (e), and
  (g), Estates Code, are amended to read as follows:
         (a)  Not later than the 10th working day after the date an
  order of transfer is signed under Section 1023.002 or 1023.005, the
  clerk shall record any unrecorded papers of the guardianship
  required to be recorded.  On payment of the clerk's fee, the clerk
  shall send, using the electronic filing system established under
  Section 72.031, Government Code, to the county clerk of the county
  to which the guardianship was ordered transferred:
               (1)  a transfer certificate and certified index of
  transferred documents;
               (2)  a copy of each [final] order;
               (3)  a copy of the order of transfer signed by the
  transferring court;
               (4)  a copy of the original papers filed in the
  transferring court, including any papers previously received on
  transfer from a court in another county;
               (5)  a copy of the transfer certificate and certified 
  index of transferred documents from each previous transfer, if
  applicable; and
               (6)  a bill of any costs accrued in the transferring
  court.
         (b)  The clerk of the transferring court shall use the
  standardized transfer certificate and certified index of
  transferred documents form developed by the Office of Court
  Administration of the Texas Judicial System under Section 72.037,
  Government Code, when transferring a proceeding under this section.
         (c)  The clerk of the transferring court shall keep a copy of
  the documents transferred under Subsection (a), including
  transferred pleadings, orders, and all other papers filed into the
  case record.
         (d)  The clerk of the court to which the proceeding is
  transferred shall, subject to Section 1023.005:
               (1)  accept documents transferred under Subsection
  (a);
               (2)  docket the suit; and
               (3)  notify, using the electronic filing system
  established under Section 72.031, Government Code, all parties, the
  clerk of the transferring court, and, if appropriate, the
  transferring court's local registry that the suit has been
  docketed.
         (e)  The clerk of the transferee court shall physically or
  electronically mark or stamp the transfer certificate and certified 
  index of transferred documents to evidence the date and time of
  acceptance under Subsection (d), but may not physically or
  electronically mark or stamp any other document transferred under
  Subsection (a).
         (g)  The clerks of both the transferee and transferring
  courts may each produce under Chapter 51, Government Code,
  certified or uncertified copies of documents transferred under
  Subsection (a) but must include a copy of the transfer certificate
  and certified index of transferred documents with each document
  produced.
         SECTION 5.  Chapter 1023, Estates Code, is amended by adding
  Section 1023.0071 to read as follows:
         Sec. 1023.0071.  TRANSFER FEE. (a) The fee for filing a
  guardianship case transferred from another county under this
  chapter in which the guardian has previously been appointed and
  qualified in accordance with this title is $45 payable to the clerk
  of the court to which the case is transferred. No portion of this
  fee may be sent to the state.
         (b)  A party may not be assessed any other filing fee by the
  clerk of the court to which the guardianship is transferred in
  connection with the filing and docketing of the transferred case. 
         (c)  To the extent that this section conflicts with another
  state statute, the Texas Rules of Civil Procedure, or other rules,
  this section prevails.
         SECTION 6.  Section 1105.157, Estates Code, is amended by
  amending Subsections (a) and (d) and adding Subsection (d-1) to
  read as follows:
         (a)  Instead of giving a surety or sureties on a bond, or to
  reduce the amount of a bond, the guardian of an estate may deposit
  the guardian's own cash or securities acceptable to the court with:
               (1)  a financial institution as defined by Section
  201.101, Finance Code, that has its main office or a branch office
  in this state; or 
               (2)  the registry of the court, for which the clerk of
  the court shall issue a receipt.
         (d)  A receipt issued by a depository under Subsection (c) or
  a record of deposit to the registry of the court must be attached to
  the guardian's bond and must be in substantially the following
  form:
  The State of Texas
  County of ________ (insert name of county)
         Know all persons by these presents that I/we, ___________
  (name of each principal), as principal, have deposited cash or
  securities as evidenced by the attached receipt or record of
  deposit issued by _____ (name of depository where cash or
  securities are deposited or the name of the court) on _____ (date of
  deposit), are held and firmly bound to the judge of ______ (insert
  reference to appropriate judge), and that judge's successors in
  office, in the sum of $______, having been so deposited;
  conditioned that the above bound principal or principals, appointed
  by the judge as guardian or temporary guardian of the person or of
  the estate, or both, of _________(name of ward and whether the
  person is a minor or is an incapacitated person other than a minor),
  shall well and truly perform all of the duties required of the
  guardian or temporary guardian by law under appointment.
         (d-1)  The guardian's bond and depository receipt, if
  applicable, shall [and] be delivered to and filed by the county
  clerk after the bond [receipt] is approved by the judge.
         SECTION 7.  Section 1151.051(c), Estates Code, is amended to
  read as follows:
         (c)  A guardian of the person has:
               (1)  the right to have physical possession of the ward
  and to establish the ward's legal domicile;
               (2)  the duty to provide care, supervision, and
  protection for the ward;
               (3)  the duty to provide the ward with clothing, food,
  medical care, and shelter;
               (4)  the power to consent to medical, psychiatric, and
  surgical treatment other than the inpatient psychiatric commitment
  of the ward;
               (5)  on application to and order of the court, the power
  to establish a trust in accordance with 42 U.S.C. Section
  1396p(d)(4)(B) and direct that the income of the ward as defined by
  that section be paid directly to the trust, solely for the purpose
  of the ward's eligibility for medical assistance under Chapter 32,
  Human Resources Code; [and]
               (6)  the duty to notify the court, as soon as
  practicable, if the ward has died or is admitted to a medical
  facility for acute care for a period of three or more days; 
               (7)  the duty to notify the court not later than the
  30th day after the date the ward's residence or address has changed; 
               (8)  the duty to notify the court not later than the
  30th day after the date of a change in the guardian's residence,
  address, phone number, or any other information used by the court to
  contact the guardian; and
               (9)  the power to sign documents necessary or
  appropriate to facilitate employment of the ward if:
                     (A)  the guardian was appointed with full
  authority over the person of the ward under Section 1101.151; or
                     (B)  the power is specified in the court order
  appointing the guardian with limited powers over the person of the
  ward under Section 1101.152.
         SECTION 8.  Section 1155.151(a), Estates Code, is amended to
  read as follows:
         (a)  In a guardianship proceeding, the court costs of the
  proceeding, including the costs described by Subsection (a-1),
  shall, except as provided by Subsection (c), be paid as follows, and
  the court shall issue the judgment accordingly:
               (1)  out of the guardianship estate, if a guardian of
  the estate has been created for the benefit of the ward and the
  court determines it is in the ward's best interest;
               (2)  out of the management trust, if a management trust
  has been created for the benefit of the ward under Chapter 1301 and
  the court determines it is in the ward's best interest;
               (3)  by the party to the proceeding who incurred the
  costs, unless that party filed, on the party's own behalf, an
  affidavit of inability to pay the costs under Rule 145, Texas Rules
  of Civil Procedure, that shows the party is unable to afford the
  costs, if:
                     (A)  there is no guardianship estate or [no]
  management trust that has been created for the ward's benefit; or
                     (B)  the assets of the guardianship estate or
  management trust, as appropriate, are insufficient to pay the
  costs; or
               (4)  out of the county treasury if:
                     (A)  there is no guardianship estate or management
  trust or the assets of the guardianship estate or management trust,
  as appropriate, are insufficient to pay the costs; and
                     (B)  the party to the proceeding who incurred the
  costs filed, on the party's own behalf, an affidavit of inability to
  pay the costs under Rule 145, Texas Rules of Civil Procedure, that
  shows the party is unable to afford the costs.
         SECTION 9.  The heading to Section 1156.052, Estates Code,
  is amended to read as follows:
         Sec. 1156.052.  ALLOWANCE FOR WARD'S SPOUSE, MINOR CHILDREN,
  OR INCAPACITATED ADULT CHILDREN [DEPENDENT].
         SECTION 10.  Section 1156.052, Estates Code, is amended by
  amending Subsections (a) and (b) and adding Subsection (d) to read
  as follows:
         (a)  Subject to Section 1156.051 and on application to the
  court, the court may order the guardian of the estate of a ward to
  spend money from the ward's estate for the education and
  maintenance of the ward's spouse, minor children, or incapacitated
  adult children [dependent].
         (b)  In determining whether to order the expenditure of money
  from a ward's estate for the ward's spouse, minor children, or
  incapacitated adult children [dependent], as appropriate, under
  this section, the court shall consider:
               (1)  the circumstances of the ward, the ward's spouse,
  and the ward's minor children and incapacitated adult children
  [dependents];
               (2)  the ability and duty of the ward's spouse to
  support himself or herself and the ward's minor children or
  incapacitated adult children [dependent];
               (3)  the size of the ward's estate;
               (4)  a beneficial interest the ward or the ward's
  spouse, minor children, or incapacitated adult children have [or
  dependent has] in a trust; and
               (5)  an existing estate plan, including a trust or
  will, that provides a benefit to the ward's spouse, minor children,
  or incapacitated adult children [dependent].
         (d)  Copies of the notices sent under Subsection (c) must be
  filed with the court with a copy of the proof of delivery receipt
  for each notice sent.
         SECTION 11.  Section 1203.006, Estates Code, is amended to
  read as follows:
         Sec. 1203.006.  REQUIREMENTS FOR DISCHARGE.  (a)  A
  guardian applying to resign may not be discharged until:
               (1)  the resignation application has been heard;
               (2)  the exhibit and final account or report required
  under Section 1203.001 has been examined, settled, and approved;
  and
               (3)  the guardian [applicant] has satisfied the court
  that the guardian [applicant] has:
                     (A)  delivered any estate property remaining in
  the guardian's [applicant's] possession; or
                     (B)  complied with all court orders relating to
  the guardian's [applicant's] trust as guardian.
         (b)  When a guardian applying to resign has fully complied
  with the court orders, the court shall enter an order:
               (1)  accepting the resignation; [and]
               (2)  discharging the guardian; 
               (3)  canceling the letters issued to the guardian; and 
               (4)  [applicant and,] if the guardian [applicant] is
  under bond, discharging and releasing the [applicant's] sureties on
  the guardian's bond.
         SECTION 12.  Section 1204.105, Estates Code, is amended by
  adding Subsection (h) to read as follows:
         (h)  The guardian of the estate shall file an affidavit sworn
  to by the guardian or a certificate signed by the guardian's
  attorney stating:
               (1)  the name of each person to whom citation was served
  under this section, indicating the method of service;
               (2)  the name of each person executing a waiver of
  citation under Subsection (d); and 
               (3)  that each person whose whereabouts are known or
  can be reasonably ascertained who is entitled to citation under
  this section was provided a copy of the account for final
  settlement, indicating the method of delivery for each person to
  whom a copy was provided. 
         SECTION 13.  Section 1204.151, Estates Code, is amended to
  read as follows:
         Sec. 1204.151.  DISCHARGE OF GUARDIAN WHEN NO ESTATE
  PROPERTY REMAINS.  The court shall enter an order discharging a
  guardian from the guardian's trust, canceling the letters issued to
  the guardian of the estate, and closing the guardianship estate if,
  on final settlement of the estate, none of the estate remains in the
  guardian's possession.
         SECTION 14.  Section 1204.152, Estates Code, is amended to
  read as follows:
         Sec. 1204.152.  DISCHARGE OF GUARDIAN WHEN ESTATE FULLY
  ADMINISTERED.  The court shall enter an order discharging a
  guardian of the estate from the guardian's trust, canceling the
  letters issued to the guardian of the estate, and declaring the
  estate closed when:
               (1)  the guardian has fully administered the estate in
  accordance with this title and the court's orders;
               (2)  the guardian's account for final settlement has
  been approved; and
               (3)  the guardian has delivered all of the estate
  remaining in the guardian's possession to any person entitled to
  receive the estate.
         SECTION 15.  Section 1251.005(a), Estates Code, is amended
  to read as follows:
         (a)  On the filing of an application for temporary
  guardianship, the court clerk shall issue:
               (1)  citation to be personally served on:
                     (A)  the proposed ward; and
                     (B)  the proposed temporary guardian named in the
  application, if that person is not the applicant; and
               (2)  notice to be served in the manner provided under
  Rule 21a, Texas Rules of Civil Procedure, on the proposed ward's
  appointed attorney.
         SECTION 16.  Section 1023.008, Estates Code, is repealed.
         SECTION 17.  (a) Except as otherwise provided by this
  section, the changes in law made by this Act apply to a guardianship
  created before, on, or after the effective date of this Act.
         (b)  Sections 1023.002(c), 1023.004(a), 1023.005(c), and
  1023.006(a), (b), (c), (d), (e), and (g), Estates Code, as amended
  by this Act, and Section 1023.0071, Estates Code, as added by this
  Act, apply only to an application filed or motion made to transfer a
  guardianship on or after the effective date of this Act.  An
  application filed or motion made before the effective date of this
  Act is governed by the law in effect on the date the application was
  filed or motion was made, and the former law is continued in effect
  for that purpose.
         (c)  Sections 1156.052 and 1251.005(a), Estates Code, as
  amended by this Act, apply only to an application filed on or after
  the effective date of this Act. An application filed before the
  effective date of this Act is governed by the law in effect on the
  date the application was filed, and the former law is continued in
  effect for that purpose.
         SECTION 18.  This Act takes effect on the 91st day after the
  last day of the legislative session.