H.B. No. 3009 |
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relating to the health care providers authorized to examine a | ||
person to determine whether the person is incapacitated for | ||
purposes of certain guardianship proceedings. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Subchapter C, Chapter 1101, Estates Code, is | ||
amended by adding Sections 1101.100 and 1101.1011 to read as | ||
follows: | ||
Sec. 1101.100. DEFINITIONS. In this subchapter: | ||
(1) "Advanced practice registered nurse" has the | ||
meaning assigned by Section 301.152, Occupations Code. | ||
(2) "Physician" means an individual licensed by the | ||
Texas Medical Board to practice medicine in this state. | ||
Sec. 1101.1011. LIMITATION ON ACTS BY ADVANCED PRACTICE | ||
REGISTERED NURSE. An advanced practice registered nurse may act | ||
under this subchapter only if the advanced practice registered | ||
nurse is acting under a physician's delegation authority and | ||
supervision in accordance with Chapter 157, Occupations Code. | ||
SECTION 2. Section 1101.103, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1101.103. DETERMINATION OF INCAPACITY OF CERTAIN | ||
ADULTS: HEALTH CARE PROVIDER [ |
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as provided by Section 1101.104, the court may not grant an | ||
application to create a guardianship for an incapacitated person, | ||
other than a minor or person for whom it is necessary to have a | ||
guardian appointed only to receive funds from a governmental | ||
source, unless the applicant presents to the court a written letter | ||
or certificate from a physician or advanced practice registered | ||
nurse [ |
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(1) dated not earlier than the 120th day before the | ||
date the application is filed; and | ||
(2) based on an examination the physician or advanced | ||
practice registered nurse performed not earlier than the 120th day | ||
before the date the application is filed. | ||
(a-1) For purposes of Subsection (a), a letter or | ||
certificate based on an examination by an advanced practice | ||
registered nurse must be signed by the supervising physician. | ||
(b) The letter or certificate must: | ||
(1) describe the nature, degree, and severity of the | ||
proposed ward's incapacity, including any functional deficits | ||
regarding the proposed ward's ability to: | ||
(A) handle business and managerial matters; | ||
(B) manage financial matters; | ||
(C) operate a motor vehicle; | ||
(D) make personal decisions regarding residence, | ||
voting, and marriage; and | ||
(E) consent to medical, dental, psychological, | ||
or psychiatric treatment; | ||
(2) in providing a description under Subdivision (1) | ||
regarding the proposed ward's ability to operate a motor vehicle | ||
and make personal decisions regarding voting, state whether in the | ||
physician's opinion the proposed ward: | ||
(A) has the mental capacity to vote in a public | ||
election; and | ||
(B) has the ability to safely operate a motor | ||
vehicle; | ||
(3) provide an evaluation of the proposed ward's | ||
physical condition and mental functioning and summarize the | ||
proposed ward's medical history if reasonably available; | ||
(3-a) in providing an evaluation under Subdivision (3), | ||
state whether improvement in the proposed ward's physical condition | ||
and mental functioning is possible and, if so, state the period | ||
after which the proposed ward should be reevaluated to determine | ||
whether a guardianship continues to be necessary; | ||
(4) state how or in what manner the proposed ward's | ||
ability to make or communicate responsible decisions concerning | ||
himself or herself is affected by the proposed ward's physical or | ||
mental health, including the proposed ward's ability to: | ||
(A) understand or communicate; | ||
(B) recognize familiar objects and individuals; | ||
(C) solve problems; | ||
(D) reason logically; and | ||
(E) administer to daily life activities with and | ||
without supports and services; | ||
(5) state whether any current medication affects the | ||
proposed ward's demeanor or the proposed ward's ability to | ||
participate fully in a court proceeding; | ||
(6) describe the precise physical and mental | ||
conditions underlying a diagnosis of a mental disability, and state | ||
whether the proposed ward would benefit from supports and services | ||
that would allow the individual to live in the least restrictive | ||
setting; | ||
(6-a) state whether a guardianship is necessary for the | ||
proposed ward and, if so, whether specific powers or duties of the | ||
guardian should be limited if the proposed ward receives supports | ||
and services; and | ||
(7) include any other information required by the | ||
court. | ||
(b-1) For purposes of Subsection (b)(2), the opinion of an | ||
advanced practice registered nurse that is based on an examination | ||
of a proposed ward conducted by the advanced practice registered | ||
nurse under delegation from and supervision by a physician and is | ||
signed by the supervising physician is considered the supervising | ||
physician's opinion. | ||
(c) If the court determines it is necessary, the court may | ||
appoint the necessary physicians or advanced practice registered | ||
nurses to examine the proposed ward. The court must make its | ||
determination with respect to the necessity for a physician's or | ||
advanced practice registered nurse's examination of the proposed | ||
ward at a hearing held for that purpose. Not later than the fourth | ||
day before the date of the hearing, the applicant shall give to the | ||
proposed ward and the proposed ward's attorney ad litem written | ||
notice specifying the purpose and the date and time of the hearing. | ||
(d) A physician or advanced practice registered nurse who | ||
examines the proposed ward, other than a physician, advanced | ||
practice registered nurse, or psychologist who examines the | ||
proposed ward under Section 1101.104(2), shall make available for | ||
inspection by the attorney ad litem appointed to represent the | ||
proposed ward a written letter or certificate from the physician or | ||
advanced practice registered nurse that complies with the | ||
requirements of Subsections (a) and (b). | ||
SECTION 3. Section 1101.104, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1101.104. EXAMINATIONS AND DOCUMENTATION REGARDING | ||
INTELLECTUAL DISABILITY. (a) If an intellectual disability is the | ||
basis of the proposed ward's alleged incapacity, the court may not | ||
grant an application to create a guardianship for the proposed ward | ||
unless the applicant presents to the court a written letter or | ||
certificate that: | ||
(1) complies with Sections 1101.103(a) and (b); or | ||
(2) shows that not earlier than 24 months before the | ||
hearing date: | ||
(A) the proposed ward has been examined by a | ||
physician or advanced practice registered nurse or by a | ||
psychologist licensed in this state or certified by the Health and | ||
Human [ |
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perform the examination, in accordance with rules of the executive | ||
commissioner of the commission [ |
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[ |
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recommendations include a determination of an intellectual | ||
disability; or | ||
(B) a physician or advanced practice registered | ||
nurse or a psychologist licensed in this state or certified by the | ||
Health and Human [ |
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Commission to perform examinations described by Paragraph (A) | ||
updated or endorsed in writing a prior determination of an | ||
intellectual disability for the proposed ward made by a physician | ||
or by a psychologist licensed in this state or certified by the | ||
commission [ |
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(a-1) For purposes of Subsection (a), a letter or | ||
certificate based on an examination by an advanced practice | ||
registered nurse must be signed by the supervising physician. | ||
(b) For purposes of Subsection (a)(2)(B), the determination | ||
of an advanced practice registered nurse that is based on an | ||
examination of a proposed ward conducted by the advanced practice | ||
registered nurse under delegation from and supervision by a | ||
physician and is signed by the supervising physician is considered | ||
the supervising physician's determination. | ||
SECTION 4. Section 1102.002, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1102.002. ESTABLISHMENT OF PROBABLE CAUSE FOR | ||
INVESTIGATION. (a) In this section: | ||
(1) "Advanced practice registered nurse" has the | ||
meaning assigned by Section 301.152, Occupations Code. | ||
(2) "Physician" has the meaning assigned by Section | ||
1101.100. | ||
(b) An advanced practice registered nurse may act under this | ||
section only if the advanced practice registered nurse is acting | ||
under a physician's delegation authority and supervision in | ||
accordance with Chapter 157, Occupations Code. | ||
(c) To establish probable cause under Section 1102.001, the | ||
court may require: | ||
(1) an information letter about the person believed to | ||
be incapacitated that is submitted by an interested person and | ||
satisfies the requirements of Section 1102.003; or | ||
(2) a written letter or certificate from a physician | ||
or advanced practice registered nurse who has examined the person | ||
believed to be incapacitated that satisfies the requirements of | ||
Section 1101.103, except that the letter must be: | ||
(A) dated not earlier than the 120th day before | ||
the date of the appointment of a guardian ad litem or court | ||
investigator under Section 1102.001; and | ||
(B) based on an examination the physician or | ||
advanced practice registered nurse performed not earlier than the | ||
120th day before that date. | ||
(d) For purposes of Subsection (c)(2), a letter or | ||
certificate based on an examination by an advanced practice | ||
registered nurse must be signed by the supervising physician. The | ||
opinion of an advanced practice registered nurse that is based on an | ||
examination of a proposed ward conducted by the advanced practice | ||
registered nurse under delegation from and supervision by a | ||
physician and signed by the supervising physician is considered the | ||
supervising physician's opinion. | ||
SECTION 5. Section 1202.054(b-1), Estates Code, is amended | ||
to read as follows: | ||
(b-1) A written letter or certificate from a physician or | ||
advanced practice registered nurse as described by Section 1202.152 | ||
is not required before the appointment of the court investigator or | ||
a guardian ad litem under Subsection (b). | ||
SECTION 6. Section 1202.152, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1202.152. HEALTH CARE PROVIDER'S [ |
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OR CERTIFICATE REQUIRED. (a) In this section: | ||
(1) "Advanced practice registered nurse" has the | ||
meaning assigned by Section 301.152, Occupations Code. | ||
(2) "Physician" has the meaning assigned by Section | ||
1101.100. | ||
(b) An advanced practice registered nurse may act under this | ||
section only if the advanced practice registered nurse is acting | ||
under a physician's delegation authority and supervision in | ||
accordance with Chapter 157, Occupations Code. | ||
(c) The court 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 or advanced practice registered nurse 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-1) For purposes of Subsection (c), a letter or | ||
certificate based on an examination by an advanced practice | ||
registered nurse must be signed by the supervising physician. | ||
(d) [ |
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Subsection (c) [ |
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(1) describe the nature and degree of incapacity, | ||
including the medical history if reasonably available, or state | ||
that, in the physician's opinion, the ward has the capacity, or | ||
sufficient capacity with supports and services, to: | ||
(A) provide food, clothing, and shelter for | ||
himself or herself; | ||
(B) care for the ward's own physical health; and | ||
(C) manage the ward's financial affairs; | ||
(2) provide a medical prognosis specifying the | ||
estimated severity of any incapacity; | ||
(3) state how or in what manner the ward's ability to | ||
make or communicate responsible decisions concerning himself or | ||
herself is affected by the ward's physical or mental health; | ||
(4) state whether any current medication affects the | ||
ward's demeanor or the ward's ability to participate fully in a | ||
court proceeding; | ||
(5) describe the precise physical and mental | ||
conditions underlying a diagnosis of senility, if applicable; and | ||
(6) include any other information required by the | ||
court. | ||
(e) For purposes of Subsection (d), the opinion of an | ||
advanced practice registered nurse that is based on an examination | ||
of a ward conducted by the advanced practice registered nurse under | ||
delegation from and supervision by a physician and is signed by the | ||
supervising physician is considered the supervising physician's | ||
opinion. | ||
(f) [ |
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may appoint the necessary physicians or advanced practice | ||
registered nurses to examine the ward in the same manner and to the | ||
same extent as a ward is examined by a physician or advanced | ||
practice registered nurse under Section 1101.103 or 1101.104. | ||
SECTION 7. The changes in law made by this Act apply only to | ||
an application for the appointment of a guardian, for the complete | ||
restoration of a ward's capacity, or for the modification of a | ||
guardianship that is 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 8. This Act takes effect September 1, 2023. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I certify that H.B. No. 3009 was passed by the House on May | ||
11, 2023, by the following vote: Yeas 142, Nays 2, 1 present, not | ||
voting; and that the House concurred in Senate amendments to H.B. | ||
No. 3009 on May 25, 2023, by the following vote: Yeas 142, Nays 0, | ||
1 present, not voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
I certify that H.B. No. 3009 was passed by the Senate, with | ||
amendments, on May 23, 2023, by the following vote: Yeas 31, Nays | ||
0. | ||
______________________________ | ||
Secretary of the Senate | ||
APPROVED: __________________ | ||
Date | ||
__________________ | ||
Governor |