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A BILL TO BE ENTITLED
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AN ACT
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relating to the health care providers authorized to examine a |
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person to determine whether the person is incapacitated for |
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purposes of certain guardianship proceedings. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subchapter C, Chapter 1101, Estates Code, is |
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amended by adding Sections 1101.100 and 1101.1011 to read as |
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follows: |
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Sec. 1101.100. DEFINITIONS. In this subchapter: |
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(1) "Advanced practice registered nurse" has the |
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meaning assigned by Section 301.152, Occupations Code. |
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(2) "Physician" means an individual licensed by the |
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Texas Medical Board to practice medicine in this state. |
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Sec. 1101.1011. LIMITATION ON ACTS BY ADVANCED PRACTICE |
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REGISTERED NURSE. An advanced practice registered nurse may act |
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under this subchapter only if the advanced practice registered |
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nurse is acting under a physician's delegation authority and |
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supervision in accordance with Chapter 157, Occupations Code. |
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SECTION 2. Section 1101.103, Estates Code, is amended to |
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read as follows: |
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Sec. 1101.103. DETERMINATION OF INCAPACITY OF CERTAIN |
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ADULTS: HEALTH CARE PROVIDER [PHYSICIAN] EXAMINATION. (a) Except |
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as provided by Section 1101.104, the court may not grant an |
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application to create a guardianship for an incapacitated person, |
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other than a minor or person for whom it is necessary to have a |
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guardian appointed only to receive funds from a governmental |
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source, unless the applicant presents to the court a written letter |
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or certificate from a physician or advanced practice registered |
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nurse [licensed in this state] that is: |
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(1) dated not earlier than the 120th day before the |
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date the application is filed; and |
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(2) based on an examination the physician or advanced |
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practice registered nurse performed not earlier than the 120th day |
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before the date the application is filed. |
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(b) The letter or certificate must: |
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(1) describe the nature, degree, and severity of the |
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proposed ward's incapacity, including any functional deficits |
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regarding the proposed ward's ability to: |
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(A) handle business and managerial matters; |
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(B) manage financial matters; |
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(C) operate a motor vehicle; |
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(D) make personal decisions regarding residence, |
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voting, and marriage; and |
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(E) consent to medical, dental, psychological, |
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or psychiatric treatment; |
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(2) in providing a description under Subdivision (1) |
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regarding the proposed ward's ability to operate a motor vehicle |
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and make personal decisions regarding voting, state whether in the |
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physician's opinion the proposed ward: |
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(A) has the mental capacity to vote in a public |
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election; and |
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(B) has the ability to safely operate a motor |
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vehicle; |
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(3) provide an evaluation of the proposed ward's |
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physical condition and mental functioning and summarize the |
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proposed ward's medical history if reasonably available; |
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(3-a) in providing an evaluation under Subdivision (3), |
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state whether improvement in the proposed ward's physical condition |
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and mental functioning is possible and, if so, state the period |
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after which the proposed ward should be reevaluated to determine |
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whether a guardianship continues to be necessary; |
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(4) state how or in what manner the proposed ward's |
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ability to make or communicate responsible decisions concerning |
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himself or herself is affected by the proposed ward's physical or |
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mental health, including the proposed ward's ability to: |
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(A) understand or communicate; |
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(B) recognize familiar objects and individuals; |
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(C) solve problems; |
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(D) reason logically; and |
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(E) administer to daily life activities with and |
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without supports and services; |
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(5) state whether any current medication affects the |
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proposed ward's demeanor or the proposed ward's ability to |
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participate fully in a court proceeding; |
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(6) describe the precise physical and mental |
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conditions underlying a diagnosis of a mental disability, and state |
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whether the proposed ward would benefit from supports and services |
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that would allow the individual to live in the least restrictive |
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setting; |
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(6-a) state whether a guardianship is necessary for the |
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proposed ward and, if so, whether specific powers or duties of the |
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guardian should be limited if the proposed ward receives supports |
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and services; and |
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(7) include any other information required by the |
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court. |
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(b-1) For purposes of Subsection (b)(2), the opinion of an |
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advanced practice registered nurse that is based on an examination |
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of a proposed ward that is conducted under delegation from and |
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supervision by a physician is considered the delegating physician's |
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opinion. |
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(c) If the court determines it is necessary, the court may |
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appoint the necessary physicians or advanced practice registered |
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nurses to examine the proposed ward. The court must make its |
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determination with respect to the necessity for a physician's or |
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advanced practice registered nurse's examination of the proposed |
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ward at a hearing held for that purpose. Not later than the fourth |
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day before the date of the hearing, the applicant shall give to the |
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proposed ward and the proposed ward's attorney ad litem written |
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notice specifying the purpose and the date and time of the hearing. |
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(d) A physician or advanced practice registered nurse who |
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examines the proposed ward, other than a physician, advanced |
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practice registered nurse, or psychologist who examines the |
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proposed ward under Section 1101.104(2), shall make available for |
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inspection by the attorney ad litem appointed to represent the |
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proposed ward a written letter or certificate from the physician or |
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advanced practice registered nurse that complies with the |
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requirements of Subsections (a) and (b). |
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SECTION 3. Section 1101.104, Estates Code, is amended to |
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read as follows: |
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Sec. 1101.104. EXAMINATIONS AND DOCUMENTATION REGARDING |
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INTELLECTUAL DISABILITY. (a) If an intellectual disability is the |
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basis of the proposed ward's alleged incapacity, the court may not |
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grant an application to create a guardianship for the proposed ward |
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unless the applicant presents to the court a written letter or |
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certificate that: |
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(1) complies with Sections 1101.103(a) and (b); or |
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(2) shows that not earlier than 24 months before the |
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hearing date: |
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(A) the proposed ward has been examined by a |
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physician or advanced practice registered nurse or by a |
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psychologist licensed in this state or certified by the Health and |
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Human [Department of Aging and Disability] Services Commission to |
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perform the examination, in accordance with rules of the executive |
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commissioner of the commission [Health and Human Services |
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Commission] governing examinations of that kind, and the |
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[physician's or psychologist's] written findings and |
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recommendations include a determination of an intellectual |
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disability; or |
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(B) a physician or advanced practice registered |
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nurse or a psychologist licensed in this state or certified by the |
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Health and Human [Department of Aging and Disability] Services |
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Commission to perform examinations described by Paragraph (A) |
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updated or endorsed in writing a prior determination of an |
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intellectual disability for the proposed ward made by a physician |
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or by a psychologist licensed in this state or certified by the |
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commission [department]. |
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(b) For purposes of Subsection (a)(2)(B), the determination |
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of an advanced practice registered nurse that is based on an |
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examination of a proposed ward that is conducted under delegation |
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from and supervision by a physician is considered the delegating |
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physician's determination. |
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SECTION 4. Section 1102.002, Estates Code, is amended to |
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read as follows: |
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Sec. 1102.002. ESTABLISHMENT OF PROBABLE CAUSE FOR |
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INVESTIGATION. (a) In this section: |
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(1) "Advanced practice registered nurse" has the |
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meaning assigned by Section 301.152, Occupations Code. |
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(2) "Physician" has the meaning assigned by Section |
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1101.100. |
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(b) An advanced practice registered nurse may act under this |
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section only if the advanced practice registered nurse is acting |
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under a physician's delegation authority and supervision in |
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accordance with Chapter 157, Occupations Code. |
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(c) To establish probable cause under Section 1102.001, the |
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court may require: |
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(1) an information letter about the person believed to |
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be incapacitated that is submitted by an interested person and |
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satisfies the requirements of Section 1102.003; or |
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(2) a written letter or certificate from a physician |
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or advanced practice registered nurse who has examined the person |
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believed to be incapacitated that satisfies the requirements of |
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Section 1101.103, except that the letter must be: |
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(A) dated not earlier than the 120th day before |
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the date of the appointment of a guardian ad litem or court |
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investigator under Section 1102.001; and |
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(B) based on an examination the physician or |
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advanced practice registered nurse performed not earlier than the |
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120th day before that date. |
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SECTION 5. Section 1202.054(b-1), Estates Code, is amended |
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to read as follows: |
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(b-1) A written letter or certificate from a physician or |
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advanced practice registered nurse as described by Section 1202.152 |
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is not required before the appointment of the court investigator or |
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a guardian ad litem under Subsection (b). |
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SECTION 6. Section 1202.152, Estates Code, is amended to |
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read as follows: |
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Sec. 1202.152. HEALTH CARE PROVIDER'S [PHYSICIAN'S] LETTER |
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OR CERTIFICATE REQUIRED. (a) In this section: |
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(1) "Advanced practice registered nurse" has the |
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meaning assigned by Section 301.152, Occupations Code. |
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(2) "Physician" has the meaning assigned by Section |
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1101.100. |
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(b) An advanced practice registered nurse may act under this |
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section only if the advanced practice registered nurse is acting |
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under a physician's delegation authority and supervision in |
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accordance with Chapter 157, Occupations Code. |
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(c) The court may not grant an order completely restoring a |
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ward's capacity or modifying a ward's guardianship under an |
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application filed under Section 1202.051 unless the applicant |
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presents to the court a written letter or certificate from a |
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physician or advanced practice registered nurse licensed in this |
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state that is dated: |
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(1) not earlier than the 120th day before the date the |
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application was filed; or |
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(2) after the date the application was filed but |
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before the date of the hearing. |
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(d) [(b)] A letter or certificate presented under |
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Subsection (c) [(a)] must: |
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(1) describe the nature and degree of incapacity, |
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including the medical history if reasonably available, or state |
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that, in the physician's opinion, the ward has the capacity, or |
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sufficient capacity with supports and services, to: |
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(A) provide food, clothing, and shelter for |
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himself or herself; |
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(B) care for the ward's own physical health; and |
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(C) manage the ward's financial affairs; |
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(2) provide a medical prognosis specifying the |
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estimated severity of any incapacity; |
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(3) state how or in what manner the ward's ability to |
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make or communicate responsible decisions concerning himself or |
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herself is affected by the ward's physical or mental health; |
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(4) state whether any current medication affects the |
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ward's demeanor or the ward's ability to participate fully in a |
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court proceeding; |
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(5) describe the precise physical and mental |
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conditions underlying a diagnosis of senility, if applicable; and |
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(6) include any other information required by the |
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court. |
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(e) For purposes of Subsection (d), the opinion of an |
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advanced practice registered nurse that is based on an examination |
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of a ward conducted by the advanced practice registered nurse under |
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delegation from and supervision by a physician is considered the |
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delegating physician's opinion. |
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(f) [(c)] If the court determines it is necessary, the court |
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may appoint the necessary physicians or advanced practice |
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registered nurses to examine the ward in the same manner and to the |
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same extent as a ward is examined by a physician or advanced |
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practice registered nurse under Section 1101.103 or 1101.104. |
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SECTION 7. The changes in law made by this Act apply only to |
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an application for the appointment of a guardian, for the complete |
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restoration of a ward's capacity, or for the modification of a |
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guardianship that is filed on or after the effective date of this |
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Act. An application filed before the effective date of this Act is |
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governed by the law in effect on the date the application was filed, |
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and the former law is continued in effect for that purpose. |
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SECTION 8. This Act takes effect September 1, 2023. |