By: Moncrief, Harris of Tarrant S.B. No. 236
Zaffirini
A BILL TO BE ENTITLED
AN ACT
1-1 relating to guardianships for incapacitated persons; providing a
1-2 penalty.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subchapter A, Chapter 22, Government Code, is
1-5 amended by adding Section 22.013 to read as follows:
1-6 Sec. 22.013. JUDICIAL INSTRUCTION RELATED TO GUARDIANSHIP
1-7 ISSUES. (a) The supreme court shall provide a course of
1-8 instruction that relates to issues that arise in guardianship cases
1-9 for judges involved in those cases.
1-10 (b) The supreme court shall adopt the rules necessary to
1-11 accomplish the purposes of this section.
1-12 (c) The instruction must include information about:
1-13 (1) statutory and case law relating to guardianships;
1-14 (2) the aging process and the nature of disabilities;
1-15 (3) the requirements of the Americans with
1-16 Disabilities Act (42 U.S.C. Section 12101 et seq.) and related
1-17 case and statutory law, rules, and compliance methods;
1-18 (4) the principles of equal access and accommodation;
1-19 (5) the use of community resources for the disabled;
1-20 and
1-21 (6) avoidance of stereotypes through a focus on
1-22 people's individual abilities, support needs, and inherent
1-23 individual value.
1-24 (d) The instruction may include information about:
2-1 (1) substantive areas of law concerning the needs of
2-2 elderly persons and persons with disabilities;
2-3 (2) barriers to physical access and methods to
2-4 overcome those barriers;
2-5 (3) communication needs of elderly persons and persons
2-6 with disabilities and the technology available to provide access to
2-7 communication;
2-8 (4) duties and responsibilities of guardians,
2-9 guardians ad litem, attorneys, and court personnel in guardianship
2-10 proceedings;
2-11 (5) standard definitions and procedures for
2-12 determining incapacity;
2-13 (6) standards for surrogate decision making;
2-14 (7) the doctrine of the least-restrictive alternative;
2-15 (8) the dispute resolution process, especially its
2-16 application to elderly persons and persons with disabilities; and
2-17 (9) successful programs and funding efforts for
2-18 addressing the court-related needs of elderly persons and persons
2-19 with disabilities.
2-20 SECTION 2. Subchapter B, Chapter 25, Government Code, is
2-21 amended by adding Section 25.0025 to read as follows:
2-22 Sec. 25.0025. COURT INVESTIGATORS. (a) The judge of a
2-23 statutory probate court shall employ a court investigator. The
2-24 commissioners court may authorize additional court investigators if
2-25 necessary.
2-26 (b) The commissioners court shall set the salary of a court
2-27 investigator.
3-1 (c) On the filing of an application for guardianship and
3-2 before the appointment of an attorney ad litem, a court
3-3 investigator shall investigate the circumstances alleged in the
3-4 application to determine whether a less restrictive alternative
3-5 than guardianship is appropriate.
3-6 (d)(1) A court investigator shall:
3-7 (A) supervise the court visitor program
3-8 established under Section 127, Texas Probate Code;
3-9 (B) investigate a complaint received from any
3-10 person about a guardianship and report to the judge, if necessary;
3-11 and
3-12 (C) perform other duties as assigned by the
3-13 judge.
3-14 (2) Nothing herein shall supersede any duty or
3-15 obligation of another to report or investigate abuse or neglect
3-16 under any statute of this state.
3-17 (e) After making an investigation under Subsection (c) or
3-18 (d), a court investigator shall file with the court a report of the
3-19 court investigator's findings and conclusions. Disclosure to a
3-20 jury of the contents of a court investigator's report is subject to
3-21 the Texas Rules of Civil Evidence. In a contested case, the court
3-22 investigator shall provide copies of the report to the attorneys
3-23 for the parties before the earlier of:
3-24 (1) the seventh day after the day the report is
3-25 completed; or
3-26 (2) the sixth day before the day the trial is
3-27 scheduled to begin.
4-1 SECTION 3. Subchapter C, Chapter 72, Government Code, is
4-2 amended by adding Section 72.028 to read as follows:
4-3 Sec. 72.028. OVERSIGHT OF COURT VISITOR PROGRAMS OF AND
4-4 COURT INVESTIGATORS EMPLOYED BY STATUTORY PROBATE COURTS. (a) The
4-5 office shall develop methods to oversee each statutory probate
4-6 court's:
4-7 (1) establishment and maintenance of a court visitor
4-8 program as provided by Section 127, Texas Probate Code; and
4-9 (2) employment of a court investigator as provided by
4-10 Section 25.0025.
4-11 (b) The director shall notify the State Commission on
4-12 Judicial Conduct in writing if the office determines that a judge
4-13 of a statutory probate court has failed to:
4-14 (1) establish and maintain a court visitor program; or
4-15 (2) employ a court investigator.
4-16 SECTION 4. Subchapter H, Chapter 81, Government Code, is
4-17 amended by adding Section 81.114 to read as follows:
4-18 Sec. 81.114. ATTORNEY INSTRUCTION RELATED TO GUARDIANSHIP
4-19 ISSUES. (a) The state bar shall provide a course of instruction
4-20 for attorneys who represent parties in guardianship cases or who
4-21 serve as court-appointed guardians.
4-22 (b) The state bar shall adopt the rules necessary to
4-23 accomplish the purposes of this section.
4-24 (c) The instruction must include information about:
4-25 (1) statutory and case law relating to guardianships;
4-26 (2) the aging process and the nature of disabilities;
4-27 (3) the requirements of the Americans with
5-1 Disabilities Act (42 U.S.C. Section 12101 et seq.) and related
5-2 case and statutory law, rules, and compliance methods;
5-3 (4) the principles of equal access and accommodation;
5-4 (5) the use of community resources for the disabled;
5-5 and
5-6 (6) avoidance of stereotypes through a focus on
5-7 people's individual abilities, support needs, and inherent
5-8 individual value.
5-9 (d) The instruction may include information about:
5-10 (1) substantive areas of law concerning the needs of
5-11 elderly persons and persons with disabilities;
5-12 (2) barriers to physical access and methods to
5-13 overcome those barriers;
5-14 (3) communication needs of elderly persons and persons
5-15 with disabilities and the technology available to provide access to
5-16 communication;
5-17 (4) duties and responsibilities of guardians,
5-18 guardians ad litem, attorneys, and court personnel in guardianship
5-19 proceedings;
5-20 (5) standard definitions and procedures for
5-21 determining incapacity;
5-22 (6) standards for surrogate decision making;
5-23 (7) the doctrine of the least-restrictive alternative;
5-24 (8) the dispute resolution process, especially its
5-25 application to elderly persons and persons with disabilities; and
5-26 (9) successful programs and funding efforts for
5-27 addressing the court-related needs of elderly persons and persons
6-1 with disabilities.
6-2 SECTION 5. Subchapter B, Chapter 533, Health and Safety
6-3 Code, is amended by adding Section 533.044 to read as follows:
6-4 Sec. 533.044. MEMORANDUM OF UNDERSTANDING ON ASSESSMENT
6-5 TOOLS. (a) The department, Texas Department of Health, and Texas
6-6 Department of Human Services by rule shall adopt a joint memorandum
6-7 of understanding that requires the use of a uniform assessment tool
6-8 to assess whether an elderly person, a person with mental
6-9 retardation, a person with a developmental disability, or a person
6-10 who is suspected of being a person with mental retardation or a
6-11 developmental disability and who is receiving services in a
6-12 facility regulated or operated by the department, Texas Department
6-13 of Health, or Texas Department of Human Services needs a guardian
6-14 of the person or estate, or both.
6-15 (b) The memorandum must prescribe:
6-16 (1) the facilities that must use the assessment; and
6-17 (2) the circumstances in which the facilities must use
6-18 the assessment.
6-19 (c) Each agency shall review and modify the memorandum as
6-20 necessary not later than the last month of each state fiscal year.
6-21 SECTION 6. Section 48.021, Human Resources Code, is amended
6-22 by adding Subsection (e) to read as follows:
6-23 (e) The department shall file an application under Section
6-24 110A or 131(b) of the Texas Probate Code to be appointed guardian
6-25 of the person and estate of an individual who is a minor, is a
6-26 conservatee of the department, and, because of a physical or mental
6-27 condition, will be substantially unable to provide food, clothing,
7-1 or shelter for himself or herself, to care for the individual's own
7-2 physical health, or to manage the individual's own financial
7-3 affairs when the individual becomes an adult.
7-4 SECTION 7. Section 3, Texas Probate Code, is amended by
7-5 adding Subdivision (mm) to read as follows:
7-6 (mm) "Private professional guardian" means a person
7-7 who is engaged in the business of providing guardianship services.
7-8 SECTION 8. Part 3, Chapter V, Texas Probate Code, is amended
7-9 to read as follows:
7-10 PART 3. PERMANENT GUARDIANSHIP PROCEEDINGS
7-11 SUBPART A. GENERAL PROVISIONS
7-12 Sec. 108. DEFINITIONS. In this part:
7-13 (1) "Guardianship program" means a local, county, or
7-14 regional program that provides guardianship and related services to
7-15 an incapacitated person or other person who needs assistance in
7-16 making decisions concerning the person's own welfare or financial
7-17 affairs.
7-18 (2) "Incapacitated person" means:
7-19 (A) a minor;
7-20 (B) an adult individual who, because of a
7-21 physical or mental condition, is substantially unable to provide
7-22 food, clothing, or shelter for himself or herself, to care for the
7-23 individual's own physical health, or to manage the individual's own
7-24 financial affairs;
7-25 (C) a missing person; or
7-26 (D) a person who must have a guardian appointed
7-27 to receive funds due the person from any governmental source.
8-1 (3) "Missing person" means a person reported by an
8-2 executive department of the United States to be a prisoner of war
8-3 or missing in the course of public service to the United States.
8-4 (4) "Person" includes natural persons, corporations,
8-5 and guardianship programs.
8-6 (5) "Proposed ward" means a person alleged to be
8-7 incapacitated in a guardianship proceeding.
8-8 Sec. 108A. POLICY; PURPOSE OF GUARDIANSHIP. A court may
8-9 appoint a guardian only to the extent required by an incapacitated
8-10 person's actual mental or physical limitations and only as
8-11 necessary to promote and protect the well-being of the person. If
8-12 the person is not a minor, the court may not use age as the sole
8-13 factor in determining whether to appoint a guardian for the person.
8-14 The court shall design the guardianship to encourage the
8-15 development or maintenance of maximum self-reliance and
8-16 independence in the incapacitated person.
8-17 Sec. 108B. LAWS APPLICABLE TO GUARDIANSHIPS. (a) To the
8-18 extent applicable and not inconsistent with other provisions of
8-19 this code, the laws and rules governing estates of decedents apply
8-20 to and govern guardianships.
8-21 (b) A reference in other sections of this code or in other
8-22 law to a person who is mentally, physically, or legally
8-23 incompetent, a person who is judicially declared incompetent, an
8-24 incompetent or an incompetent person, a person of unsound mind, or
8-25 a habitual drunkard means an incapacitated person.
8-26 SUBPART B. APPLICATION AND HEARING
8-27 TO APPOINT GUARDIAN
9-1 Sec. 109. JURISDICTION. A court exercising original probate
9-2 jurisdiction may appoint a guardian under this part for the person
9-3 or estate, or both, of an incapacitated person.
9-4 Sec. 109A. VENUE. (a) Except as otherwise authorized by
9-5 this section, a proceeding for the appointment of a guardian for
9-6 the person or estate, or both, of an incapacitated person shall be
9-7 brought in the county in which the proposed ward resides or is
9-8 located on the date the application is filed or in the county in
9-9 which the principal estate of the proposed ward is located.
9-10 (b) A proceeding for the appointment of a guardian for the
9-11 person or estate, or both, of a minor may be brought:
9-12 (1) in the county in which both the minor's parents
9-13 reside;
9-14 (2) if the parents do not reside in the same county,
9-15 in the county in which the parent who is the sole managing
9-16 conservator of the minor resides or in the county in which the
9-17 parent who is the joint managing conservator with the greater
9-18 period of physical possession of and access to the minor resides;
9-19 (3) if only one parent is living and the parent has
9-20 custody of the minor, in the county in which that parent resides;
9-21 (4) if both parents are dead but the minor was in the
9-22 custody of a deceased parent, in the county in which the last
9-23 surviving parent having custody resided; or
9-24 (5) if both parents of a minor child have died in a
9-25 common disaster and there is no evidence that the parents died
9-26 other than simultaneously, in the county in which both deceased
9-27 parents resided at the time of their simultaneous deaths if they
10-1 resided in the same county.
10-2 (c) A proceeding for the appointment of a guardian who was
10-3 appointed by will may be brought in the county in which the will
10-4 was admitted to probate or in the county of the appointee's
10-5 residence if the appointee resides in this state.
10-6 (d) A proceeding for the appointment of a guardian for the
10-7 estate of a missing person may be brought:
10-8 (1) in the county in which the missing person's spouse
10-9 resides;
10-10 (2) if there is no spouse, in the county in which a
10-11 parent or child of the missing person resides; or
10-12 (3) if there is no spouse, parent, or child, in the
10-13 county in which the missing person's next of kin resides.
10-14 (e) A court may transfer a guardianship proceeding to any
10-15 court having venue in the same manner as provided for transfer of
10-16 probate proceedings in Section 8 of this code.
10-17 Sec. 110. STANDING TO COMMENCE OR CONTEST PROCEEDING. Any
10-18 person has the right to commence any guardianship proceeding or to
10-19 appear and contest any guardianship proceeding or the appointment
10-20 of a particular person as guardian.
10-21 Sec. 110A. APPLICATION; CONTENTS. Any person may commence a
10-22 proceeding for the appointment of a guardian by filing a written
10-23 application in a court having jurisdiction and venue. The
10-24 application must be sworn to by the applicant and state:
10-25 (1) the name, sex, date of birth, and address of the
10-26 proposed ward;
10-27 (2) the name, relationship, and address of the person
11-1 the applicant desires to have appointed as guardian;
11-2 (3) the social security number of the proposed ward
11-3 and of the person the applicant desires to have appointed as
11-4 guardian;
11-5 (4) whether guardianship of the person or estate, or
11-6 both, is sought;
11-7 (5) the nature and degree of the alleged incapacity,
11-8 the specific areas of protection and assistance requested, and the
11-9 limitation of rights requested to be included in the court's order
11-10 of appointment;
11-11 (6) the facts requiring that a guardian be appointed
11-12 and the interest of the applicant in the appointment;
11-13 (7) the nature and description of any guardianship of
11-14 any kind existing for the proposed ward in this or any other state;
11-15 (8) the name and address of any person or institution
11-16 having the care and custody of the proposed ward;
11-17 (9) the approximate value and description of the
11-18 proposed ward's property, including any compensation, pension,
11-19 insurance, or allowance to which the proposed ward may be entitled;
11-20 (10) the requested term, if known, of the
11-21 guardianship;
11-22 (11) the name and address of any person whom the
11-23 applicant knows to hold a power of attorney signed by the proposed
11-24 ward and a description of the type of power of attorney;
11-25 (12) if the proposed ward is a minor, the names of the
11-26 parents and next of kin of the proposed ward and whether either or
11-27 both of the parents are deceased;
12-1 (13) if the proposed ward is a minor, whether the
12-2 minor was the subject of a legal or conservatorship proceeding
12-3 within the preceding two-year period and, if so, the court
12-4 involved, the nature of the proceeding, and the final disposition,
12-5 if any, of the proceeding;
12-6 (14) if the proposed ward is 60 years of age or older,
12-7 the names and addresses, to the best of the applicant's knowledge,
12-8 of the proposed ward's spouse, siblings, and children or, if there
12-9 is no spouse, sibling, or child, the names and addresses of the
12-10 proposed ward's next of kin;
12-11 (15) if the proposed ward is a missing person:
12-12 (A) the last known residence of the missing
12-13 person;
12-14 (B) the name of the executive department of the
12-15 United States reporting the proposed ward as a missing person, the
12-16 date of the report, and the last known whereabouts of the missing
12-17 person; and
12-18 (C) the names and addresses of the missing
12-19 person's spouse, children, and parents or, if there is no spouse,
12-20 child, or parent, the names and addresses of the missing person's
12-21 next of kin;
12-22 (16) facts showing that the court has venue over the
12-23 proceeding; and
12-24 (17) if applicable, that the person whom the applicant
12-25 desires to have appointed as a guardian is a private professional
12-26 guardian who has complied with the requirements of Section 126 of
12-27 this code.
13-1 Sec. 110B. COURT'S INITIATION OF GUARDIANSHIP PROCEEDINGS.
13-2 If a court has probable cause to believe that a person domiciled or
13-3 found in the county in which the court is located is an
13-4 incapacitated person and the person does not have a guardian in
13-5 this state, the court shall appoint an attorney ad litem to
13-6 investigate and file an application for the appointment of a
13-7 guardian of the person or estate, or both, of the person believed
13-8 to be incapacitated.
13-9 Sec. 110C. APPOINTMENT OF ATTORNEY AD LITEM AND INTERPRETER.
13-10 (a) In a proceeding under this chapter for the appointment of a
13-11 guardian for a person other than a missing person, the court shall
13-12 appoint an attorney ad litem to represent the interests of the
13-13 proposed ward. The attorney shall be supplied with copies of all
13-14 of the current records in the case and may have access to all of
13-15 the proposed ward's relevant medical, psychological, and
13-16 intellectual testing records.
13-17 (b) To be eligible for appointment as an attorney ad litem,
13-18 a person must be certified by the State Bar of Texas as having
13-19 successfully completed a course of study in guardianship law and
13-20 procedure sponsored by the state bar.
13-21 (c) For certification under Subsection (b) of this section,
13-22 the state bar may not require more than eight hours of credit.
13-23 (d) A certificate issued under Subsection (b) of this
13-24 section expires on the second anniversary of the date the
13-25 certificate was issued. A person whose certificate has expired
13-26 must obtain a new certificate to be eligible for appointment as an
13-27 attorney ad litem. The applicant is not required to again complete
14-1 the course of study required by Subsection (b) of this section
14-2 unless the state bar determines that the course has changed
14-3 substantially since the person last completed the course.
14-4 (e) Subsections (b) through (d) of this section do not apply
14-5 to a person who served as attorney ad litem in a guardianship
14-6 proceeding before September 1, 1993.
14-7 (f) At the time of the appointment of the attorney ad litem,
14-8 the court shall also appoint a language interpreter or a sign
14-9 interpreter if necessary to ensure effective communication between
14-10 the proposed ward and the attorney.
14-11 Sec. 110D. DUTIES OF ATTORNEY AD LITEM. (a) An attorney ad
14-12 litem appointed under Section 110C of this code to represent a
14-13 proposed ward shall interview the proposed ward within a reasonable
14-14 time before the hearing. To the greatest extent possible, the
14-15 attorney shall discuss with the proposed ward the law and facts of
14-16 the case, the proposed ward's legal options regarding disposition
14-17 of the case, and the grounds on which guardianship is sought.
14-18 (b) Before the hearing, the attorney shall review the
14-19 application for guardianship, certificates of current physical,
14-20 medical, and intellectual examinations, and all of the proposed
14-21 ward's relevant medical, psychological, and intellectual testing
14-22 records. The attorney shall also interview supporting witnesses
14-23 and other witnesses who will testify at the hearing.
14-24 Sec. 111. NOTICE AND CITATION. (a) On the filing of an
14-25 application for guardianship, notice shall be issued and served as
14-26 provided in this section.
14-27 (b) The court clerk shall issue a notice stating that the
15-1 application for guardianship was filed, the name of the proposed
15-2 ward, and the name of the applicant. The notice must cite all
15-3 persons interested in the welfare of the proposed ward to appear at
15-4 the time and place stated in the notice if they wish to contest the
15-5 application.
15-6 (c) A copy of the notice shall be posted, and the sheriff or
15-7 other officer posting the notice shall return the original notice,
15-8 officially signed and marked in writing with the time and place of
15-9 posting.
15-10 (d) The sheriff or other officer posting the notice shall
15-11 personally serve a copy of the notice, with citation to appear and
15-12 answer the application for guardianship, to:
15-13 (1) the proposed ward, unless the proposed ward is a
15-14 missing person, or a parent with whom the minor resides if the
15-15 proposed ward is a minor who is 14 years of age or younger;
15-16 (2) the proposed ward's parents; and
15-17 (3) any conservator or person having control of the
15-18 care and welfare of the proposed ward.
15-19 (e) The court clerk, at the applicant's request, or the
15-20 applicant shall mail a copy of the notice by registered or
15-21 certified mail, return receipt requested, to the following persons
15-22 if their whereabouts are known or can be reasonably ascertained:
15-23 (1) if the proposed ward is a person 60 years of age
15-24 or older, to the spouse, all siblings, and all children of the
15-25 proposed ward;
15-26 (2) all other persons related within the first degree
15-27 by consanguinity or affinity to the proposed ward;
16-1 (3) any person living with the proposed ward in a
16-2 private residence;
16-3 (4) the administrator of a nursing home facility or
16-4 similar facility in which the proposed ward resides; and
16-5 (5) a person whom the applicant knows to hold a power
16-6 of attorney signed by the proposed ward.
16-7 (f) A person other than the proposed ward who is entitled to
16-8 receive notice or personal service of citation under Subsections
16-9 (d) and (e) of this section may, in person or by attorney ad litem,
16-10 by writing filed with the clerk, waive the receipt of notice or the
16-11 issuance and personal service of citation.
16-12 (g) The court may not act on an application for the creation
16-13 of a guardianship until the Monday following the expiration of the
16-14 10-day period beginning the date service of notice and citation has
16-15 been made as provided by this section.
16-16 Sec. 112. USE OF RECORDS IN GUARDIANSHIP PROCEEDINGS.
16-17 (a) Before a hearing may be held for the appointment of a
16-18 guardian, current and relevant medical, psychological, and
16-19 intellectual testing records of the proposed ward must be filed
16-20 with the court unless:
16-21 (1) the proposed ward is a minor, a missing person, or
16-22 a person who must have a guardian appointed to receive funds due
16-23 the person from any governmental source; or
16-24 (2) the court makes a finding on the record that no
16-25 current or relevant records exist and that examining the proposed
16-26 ward for the purpose of creating the records is impractical.
16-27 (b) Current medical, psychological, and intellectual testing
17-1 records are a sufficient basis for a determination of guardianship.
17-2 (c) Medical, psychological, and intellectual testing records
17-3 filed with the application must be based on examinations conducted
17-4 during the 90-day period before the date the application is filed.
17-5 (d) The findings and recommendations contained in the
17-6 medical, psychological, and intellectual testing records are not
17-7 binding on the court.
17-8 Sec. 112A. EXAMINATIONS AND REPORTS. (a) If the medical,
17-9 psychological, and intellectual testing records of the proposed
17-10 ward are not filed with the application for guardianship, the court
17-11 shall appoint the necessary physicians and mental health
17-12 professionals to examine the person and file all necessary reports
17-13 with the court.
17-14 (b) A physician appointed by the court shall file with the
17-15 court a report that:
17-16 (1) describes the nature and degree of incapacity,
17-17 including the medical history if reasonably available;
17-18 (2) provides a medical prognosis specifying the
17-19 estimated severity of the incapacity;
17-20 (3) states how or in what manner the proposed ward's
17-21 ability to make or communicate responsible decisions concerning
17-22 himself or herself is affected by the person's physical or mental
17-23 health;
17-24 (4) states whether any current medication affects the
17-25 demeanor of the proposed ward or the proposed ward's ability to
17-26 participate fully in a court proceeding;
17-27 (5) describes the precise physical and mental
18-1 conditions underlying a diagnosis of senility, if applicable; and
18-2 (6) includes any other information required by the
18-3 court.
18-4 (c) If the basis of the proposed ward's alleged incapacity
18-5 is mental retardation, the proposed ward shall be examined by a
18-6 physician or psychologist licensed in this state or certified by
18-7 the Texas Department of Mental Health and Mental Retardation to
18-8 perform the examination, unless there is written documentation
18-9 filed with the court that shows that the proposed ward has been
18-10 examined according to the rules adopted by the Texas Department of
18-11 Mental Health and Mental Retardation not earlier than six months
18-12 before the date of a hearing to appoint a guardian for the proposed
18-13 ward. The physician or psychologist shall conduct the examination
18-14 according to the rules adopted by the Texas Department of Mental
18-15 Health and Mental Retardation and shall submit written findings and
18-16 recommendations to the court.
18-17 Sec. 112B. PAYMENT FOR PROFESSIONAL SERVICES. The court
18-18 shall order the payment of a fee set by the court as compensation
18-19 to the attorneys, mental health professionals, and interpreters
18-20 appointed under this subpart to be taxed as costs in the case. If
18-21 after examining the proposed ward's assets the court determines the
18-22 proposed ward is unable to pay for services provided by an
18-23 attorney, a mental health professional, or an interpreter appointed
18-24 under this subpart, the county is responsible for the cost of those
18-25 services.
18-26 Sec. 113. HEARING; RIGHT TO JURY TRIAL. (a) A proposed
18-27 ward other than a missing person must be present at a hearing to
19-1 appoint a guardian unless the court, on the record, determines that
19-2 a personal appearance is not in the person's best interests. The
19-3 court may close the hearing if the proposed ward or the proposed
19-4 ward's counsel requests a closed hearing.
19-5 (b) The proposed ward is entitled, on request, to a jury
19-6 trial.
19-7 (c) At the hearing, the court shall:
19-8 (1) inquire into the ability of any allegedly
19-9 incapacitated adult person to feed, clothe, and shelter himself or
19-10 herself, to care for the individual's own physical health, and to
19-11 manage the individual's property or financial affairs;
19-12 (2) ascertain the age of any proposed ward who is a
19-13 minor;
19-14 (3) inquire into the governmental reports for any
19-15 missing person or person who must have a guardian appointed to
19-16 receive funds due the person from any governmental source; and
19-17 (4) inquire into the qualifications, abilities, and
19-18 capabilities of the person seeking to be appointed guardian.
19-19 Sec. 113A. FINDINGS REQUIRED. (a) Before appointing a
19-20 guardian, the court must find that:
19-21 (1) the proposed ward is an incapacitated person;
19-22 (2) the court has venue of the case;
19-23 (3) the person to be appointed guardian is eligible to
19-24 act as guardian and is entitled to appointment or, if no eligible
19-25 person entitled to appointment applies, the person appointed is a
19-26 proper person to act as guardian;
19-27 (4) the rights of persons or property will be
20-1 protected by the appointment of a guardian;
20-2 (5) if a guardian is appointed for a minor, the
20-3 guardianship is not created for the primary purpose of enabling the
20-4 minor to establish residency for enrollment in a school or school
20-5 district for which the minor is not otherwise eligible for
20-6 enrollment; and
20-7 (6) if the guardian is appointed for a missing person,
20-8 the person was reported missing by an executive department of the
20-9 United States at least six months earlier than the date of the
20-10 filing of the application and currently is missing.
20-11 (b) The court may not grant an application to create a
20-12 guardianship unless the applicant proves each element required by
20-13 this code. A determination of incapacity of an adult proposed
20-14 ward, other than a missing person or a person who must have a
20-15 guardian appointed to receive funds due the person from any
20-16 governmental source, must be evidenced by recurring acts or
20-17 occurrences within the preceding six-month period and not by
20-18 isolated instances of negligence or bad judgment.
20-19 (c) A court may not appoint a guardian of the estate of a
20-20 minor when a payment of claims is made under Section 144 of this
20-21 code.
20-22 (d) A certificate of the executive head or a representative
20-23 of the bureau, department, or agency of the government to the
20-24 effect that the appointment of a guardian is a condition precedent
20-25 to the payment of any funds due the proposed ward from that
20-26 governmental entity is prima facie evidence of the necessity for
20-27 the appointment of a guardian.
21-1 Sec. 113B. ORDER OF COURT. (a) If it is found that an
21-2 adult person possesses the capacity to care for himself or herself
21-3 and to manage the individual's property as would a reasonably
21-4 prudent person, the court shall dismiss the application for
21-5 guardianship.
21-6 (b) If it is found that the proposed ward is totally without
21-7 capacity as provided by this code to care for himself or herself
21-8 and to manage the individual's property, the court shall include
21-9 that determination as a finding of fact in its final order in the
21-10 proceeding, and the court may appoint a guardian of the
21-11 individual's person or estate, or both, with full authority over
21-12 the incapacitated person except as provided by law.
21-13 (c) If it is found that the person lacks the capacity to do
21-14 some but not all of the tasks necessary to care for himself or
21-15 herself or to manage the individual's property, the court may
21-16 appoint a guardian with limited powers and permit the individual to
21-17 care for himself or herself or to manage the individual's property
21-18 commensurate with the individual's ability.
21-19 (d) An order appointing a guardian must contain findings of
21-20 fact and specify:
21-21 (1) the information required by Section 184 of this
21-22 code;
21-23 (2) the properties of the person that the guardian is
21-24 entitled to possess and manage with a description of the properties
21-25 sufficient to identify them;
21-26 (3) the debts, rentals, wages, or other claims due the
21-27 person that the guardian is entitled to collect or file suit to
22-1 collect and after collection to possess and manage;
22-2 (4) the contractual or other obligations that the
22-3 guardian may incur on behalf of the person;
22-4 (5) the claims against the person that the guardian
22-5 may pay, compromise, or defend, if necessary;
22-6 (6) the specific powers, limitations, or duties of the
22-7 guardian with respect to the care of the person or the management
22-8 of the person's property by the guardian; and
22-9 (7) if necessary, the amount of funds from the corpus
22-10 of the person's estate the court will allow the guardian to expend
22-11 for the education and maintenance of the person under Section 236
22-12 of this code.
22-13 (e) An order appointing a guardian may not duplicate or
22-14 conflict with the powers and duties of any other guardian.
22-15 Sec. 114. NONRESIDENT AS WARD. Guardianship of the estate
22-16 of a nonresident incapacitated person who owns property in this
22-17 state may be granted, if necessary, in the same manner as for the
22-18 property of a resident of this state. A court in the county in
22-19 which the principal estate of the ward is located has jurisdiction
22-20 to appoint a guardian. The court shall take all actions and make
22-21 all necessary orders with respect to the estate of the ward for the
22-22 maintenance, support, care, or education of the ward out of the
22-23 proceeds of the ward's estate in the same manner as if the ward
22-24 were a resident of this state and was sent abroad by the court for
22-25 education or treatment. If a qualified nonresident guardian of the
22-26 estate later qualifies in this state under Section 118 of this
22-27 code, the court shall close the resident guardianship.
23-1 SUBPART C. SELECTION OF GUARDIAN
23-2 Sec. 115. PERSONS INELIGIBLE TO BE GUARDIANS. A person may
23-3 not be appointed guardian if the person is:
23-4 (1) a minor;
23-5 (2) a person whose conduct is notoriously bad;
23-6 (3) an incapacitated person;
23-7 (4) a person who is a party or whose parent is a party
23-8 to a lawsuit concerning or affecting the welfare of the proposed
23-9 ward;
23-10 (5) a person indebted to the proposed ward unless the
23-11 person pays the debt before appointment;
23-12 (6) a person asserting a claim adverse to the proposed
23-13 ward or the proposed ward's property, real or personal;
23-14 (7) a person who, because of inexperience, lack of
23-15 education, or other good reason, is incapable of properly and
23-16 prudently managing and controlling the ward or the ward's estate;
23-17 (8) a person, institution, or corporation found
23-18 unsuitable by the court; or
23-19 (9) a person disqualified in a declaration made under
23-20 Section 117B of this code.
23-21 Sec. 115A. PREFERENCE OF WARD. Before appointing a
23-22 guardian, the court shall make a reasonable effort to question the
23-23 incapacitated person concerning the person's preference of the
23-24 person to be appointed guardian and, to the extent not inconsistent
23-25 with other provisions of this code, shall give due consideration to
23-26 the preference indicated by the incapacitated person.
23-27 Sec. 116. SELECTION OF GUARDIAN BY MINOR. (a) When an
24-1 application is filed for the guardianship of the person or estate,
24-2 or both, of a minor at least 14 years of age, the minor, subject to
24-3 the court's approval, may choose the guardian by writing filed with
24-4 the clerk.
24-5 (b) A minor at least 14 years of age may select another
24-6 guardian of either the minor's person or estate, or both, if the
24-7 minor has a guardian appointed by the court or the minor has a
24-8 guardian appointed by will or written declaration of the parent of
24-9 the minor and that guardian dies, resigns, or is removed from
24-10 guardianship. If the court is satisfied that the person selected
24-11 is suitable and competent, it shall make the appointment and revoke
24-12 the letters of guardianship of the former guardian. The minor
24-13 shall make the selection by filing an application in open court in
24-14 person or by attorney.
24-15 Sec. 116A. GUARDIANS OF MINORS. (a) Except as provided by
24-16 Section 116 of this code, the selection of a guardian for a minor
24-17 is governed by this section.
24-18 (b) If the parents live together, both parents are the
24-19 natural guardians of the person of the minor children by the
24-20 marriage, and one of the parents is entitled to be appointed
24-21 guardian of the children's estates. If the parents disagree as to
24-22 which parent should be appointed, the court shall make the
24-23 appointment on the basis of which parent is better qualified to
24-24 serve in that capacity. If one parent is dead, the survivor is the
24-25 natural guardian of the person of the minor children and is
24-26 entitled to be appointed guardian of their estates. The rights of
24-27 parents who do not live together are equal, and the guardianship of
25-1 their minor children shall be assigned to one or the other,
25-2 considering only the best interests of the children.
25-3 (c) In appointing a guardian for a minor orphan:
25-4 (1) if the last surviving parent did not appoint a
25-5 guardian, the nearest ascendant in the direct line of the minor is
25-6 entitled to guardianship of both the person and the estate of the
25-7 minor;
25-8 (2) if more than one ascendant exists in the same
25-9 degree in the direct line, one ascendant shall be appointed,
25-10 according to circumstances and considering the best interests of
25-11 the minor;
25-12 (3) if the minor has no ascendant in the direct line,
25-13 the nearest of kin shall be appointed, and if there are two or more
25-14 persons in the same degree of kinship, one shall be appointed,
25-15 according to circumstances and considering the best interests of
25-16 the minor; and
25-17 (4) if no relative of the minor is eligible to be
25-18 guardian or if no eligible person applies to be guardian, the court
25-19 shall appoint a qualified person as guardian.
25-20 (d) The surviving parent of a minor may by will or written
25-21 declaration appoint any eligible person to be guardian of the
25-22 person of the parent's minor children after the death of the
25-23 parent. On compliance with this code, an eligible person is also
25-24 entitled to be appointed guardian of the children's estates after
25-25 the death of the parent.
25-26 Sec. 117. GUARDIANS OF PERSONS OTHER THAN MINORS. The court
25-27 shall appoint a guardian for a person other than a minor according
26-1 to the circumstances and considering the best interests of the
26-2 ward. If the court finds that two or more eligible persons are
26-3 equally entitled to be appointed guardian:
26-4 (1) the ward's spouse is entitled to the guardianship
26-5 in preference to any other person if the spouse is one of the
26-6 eligible persons;
26-7 (2) the eligible person nearest of kin to the ward is
26-8 entitled to the guardianship if the ward's spouse is not one of the
26-9 eligible persons; or
26-10 (3) the court shall appoint the eligible person who is
26-11 best qualified to serve as guardian if:
26-12 (A) the persons entitled to serve under
26-13 Subdivisions (1) and (2) of this section refuse to serve;
26-14 (B) two or more persons entitled to serve under
26-15 Subdivision (2) of this section are related in the same degree of
26-16 kinship to the ward; or
26-17 (C) neither the ward's spouse or any person
26-18 related to the ward is an eligible person.
26-19 Sec. 117A. PRESUMPTION CONCERNING BEST INTEREST. It is
26-20 presumed not to be in the best interests of a ward to appoint a
26-21 person as guardian of the ward if the person has been finally
26-22 convicted of any sexual offense, sexual assault, aggravated
26-23 assault, aggravated sexual assault, injury to a child, abandoning
26-24 or endangering a child, or incest.
26-25 Sec. 117B. DESIGNATION OF GUARDIAN BEFORE NEED ARISES.
26-26 (a) A person other than an incapacitated person may designate by a
26-27 written declaration persons to serve as guardian of the person of
27-1 the declarant or the estate of the declarant if the declarant
27-2 becomes incapacitated. The declaration must be attested to by at
27-3 least two credible witnesses 14 years of age or older who are not
27-4 named as guardian or alternate guardian in the declaration.
27-5 (b) A declarant may, in the declaration, disqualify named
27-6 persons from serving as guardian of the declarant's person or
27-7 estate, and the persons named may not be appointed guardian under
27-8 any circumstances.
27-9 (c) The declaration must have attached a self-proving
27-10 affidavit signed by the declarant and the witnesses attesting to
27-11 the competence of the declarant and the execution of the
27-12 declaration. A properly executed and witnessed declaration and
27-13 affidavit are prima facie evidence that the declarant was competent
27-14 at the time the declarant executed the declaration and that the
27-15 guardian named in the declaration would serve the best interests of
27-16 the ward.
27-17 (d) The declaration and affidavit may be filed with the
27-18 court at any time after the application for appointment of a
27-19 guardian is filed and before a guardian is appointed. Unless the
27-20 court finds that the person designated in the declaration to serve
27-21 as guardian is disqualified or would not serve the best interests
27-22 of the ward, the court shall appoint the person as guardian in
27-23 preference to those otherwise entitled to serve as guardian under
27-24 this code. If the designated guardian does not qualify, is dead,
27-25 refuses to serve, resigns, dies after being appointed guardian, or
27-26 is otherwise unavailable to serve as guardian, the court shall
27-27 appoint the next eligible designated alternate guardian named in
28-1 the declaration. If the guardian and all alternate guardians do
28-2 not qualify, are dead, refuse to serve, or later die or resign, the
28-3 court shall appoint another person to serve as otherwise provided
28-4 by this code.
28-5 (e) The declarant may revoke a declaration in any manner
28-6 provided for the revocation of a will under Section 63 of this
28-7 code, including the subsequent reexecution of the declaration in
28-8 the manner required for the original declaration.
28-9 (f) If a declarant designates the declarant's spouse to
28-10 serve as guardian under this section and the declarant is
28-11 subsequently divorced from that spouse before a guardian is
28-12 appointed, the provision of the declaration designating the spouse
28-13 has no effect.
28-14 (g) A declaration and affidavit may be in any form adequate
28-15 to clearly indicate the declarant's intention to designate a
28-16 guardian. The following forms may but need not be used:
28-17 DECLARATION OF GUARDIAN IN THE EVENT OF
28-18 LATER INCAPACITY OR NEED OF GUARDIAN
28-19 I, _____________, make this Declaration of Guardian, to
28-20 operate if the need for a guardian for me later arises.
28-21 1. I designate ____________ to serve as guardian of my
28-22 person, ____________ as first alternate guardian of my person,
28-23 ________________ as second alternate guardian of my person, and
28-24 ____________ as third alternate guardian of my person.
28-25 2. I designate ____________ to serve as guardian of my
28-26 estate, ____________ as first alternate guardian of my estate,
28-27 ____________ as second alternate guardian of my estate, and
29-1 ____________ as third alternate guardian of my estate.
29-2 3. If any guardian or alternate guardian dies, does not
29-3 qualify, or resigns, the next named alternate guardian becomes my
29-4 guardian.
29-5 4. I expressly disqualify the following persons from serving
29-6 as guardian of my person: ____________, ____________, and
29-7 ____________.
29-8 5. I expressly disqualify the following persons from serving
29-9 as guardian of my estate: ____________, ____________, and
29-10 ____________.
29-11 Signed this ____ day of __________, 19__.
29-12 ___________________
29-13 Declarant
29-14 ___________________ ___________________
29-15 Witness Witness
29-16 SELF-PROVING AFFIDAVIT
29-17 Before me, the undersigned authority, on this date personally
29-18 appeared the declarant, and ____________ and ____________ as
29-19 witnesses, and all being duly sworn, the declarant said that the
29-20 above instrument was his or her Declaration of Guardian and that
29-21 the declarant had made and executed it for the purposes expressed
29-22 in the declaration. The witnesses declared to me that they are
29-23 each 14 years of age or older, that they saw the declarant sign the
29-24 declaration, that they signed the declaration as witnesses, and
29-25 that the declarant appeared to them to be of sound mind.
29-26 ___________________
29-27 Declarant
30-1 ___________________ ____________________
30-2 Affiant Affiant
30-3 Subscribed and sworn to before me by the above named
30-4 declarant and affiants on this ____ day of __________, 19__.
30-5 ________________________
30-6 Notary Public in and for
30-7 the State of Texas
30-8 My Commission expires:
30-9 ________________________
30-10 Sec. 117C. ONLY ONE PERSON APPOINTED GUARDIAN. Only one
30-11 person may be appointed as guardian of the person or estate, but
30-12 one person may be appointed guardian of the person and another of
30-13 the estate if it is to the advantage of the ward. Nothing in this
30-14 section prohibits the joint appointment of a husband and wife or of
30-15 coguardians appointed under the laws of a jurisdiction other than
30-16 this state.
30-17 Sec. 118. NONRESIDENT GUARDIAN. (a) A nonresident of this
30-18 state may be appointed and qualified as guardian or coguardian of a
30-19 nonresident ward's estate located in this state in the same manner
30-20 provided by this code for the appointment and qualification of a
30-21 resident as guardian of the estate of an incapacitated person if:
30-22 (1) a court of competent jurisdiction in the
30-23 geographical jurisdiction in which the nonresident resides
30-24 appointed the nonresident guardian;
30-25 (2) the nonresident is qualified as guardian or as a
30-26 fiduciary legal representative by whatever name known in the
30-27 foreign jurisdiction of the property or estate of the ward located
31-1 in the jurisdiction of the foreign court; and
31-2 (3) with the written application for appointment in
31-3 the county court of any county in this state in which all or part
31-4 of the ward's estate is located, the nonresident files a complete
31-5 transcript of the proceedings from the records of the court in
31-6 which the nonresident applicant was appointed, showing the
31-7 applicant's appointment and qualification as the guardian or
31-8 fiduciary legal representative of the ward's property or estate.
31-9 (b) The transcript required by Subsection (a) of this
31-10 section must be certified and attested to by the clerk of the
31-11 foreign court or the officer of the court charged by law with
31-12 custody of the court records, under the court seal, if any. The
31-13 certificate of the judge, chief justice, or presiding magistrate,
31-14 as applicable, of the foreign court must be attached to the
31-15 transcript, certifying that the attestation of the transcript by
31-16 the clerk or legal custodian of the court records is in correct
31-17 form.
31-18 (c) If the nonresident applicant meets the requirements of
31-19 this section, the court shall enter an order appointing the
31-20 nonresident, without the necessity of any notice or citation.
31-21 After the nonresident applicant qualifies in the manner required of
31-22 resident guardians and files with the court a power of attorney
31-23 appointing a resident agent to accept service of process in all
31-24 actions or proceedings with respect to the estate, the clerk shall
31-25 issue the letters of guardianship to the nonresident guardian.
31-26 (d) After qualification, the nonresident guardian shall file
31-27 an inventory and appraisement of the estate of the ward in this
32-1 state subject to the jurisdiction of the court as in ordinary cases
32-2 and is subject to all applicable provisions of this code with
32-3 respect to the handling and settlement of estates by resident
32-4 guardians.
32-5 Sec. 118A. DELIVERY OF PROPERTY TO NONRESIDENT GUARDIAN.
32-6 The court may order a resident executor, administrator, or guardian
32-7 in possession of any of the estate of a ward to deliver the
32-8 property to a qualified and acting nonresident guardian of the
32-9 ward.
32-10 Sec. 118B. APPOINTMENT OF PRIVATE PROFESSIONAL GUARDIANS. A
32-11 court may not appoint a private professional guardian to serve as a
32-12 guardian or permit a private professional guardian to continue to
32-13 serve as a guardian under this code if the private professional
32-14 guardian has not complied with the requirements of Section 126 of
32-15 this code.
32-16 SUBPART D. CERTAIN POWERS AND DUTIES OF GUARDIAN
32-17 Sec. 119. RIGHTS AND POWERS RETAINED BY WARD. An
32-18 incapacitated person for whom a guardian is appointed retains all
32-19 legal and civil rights and powers except those designated by court
32-20 order as legal disabilities by virtue of having been specifically
32-21 granted to the guardian.
32-22 Sec. 120. OATH AND BOND OF GUARDIAN. The guardian shall
32-23 take and subscribe an oath required by this code. The guardian
32-24 shall file a bond in accordance with Section 194 of this code. In
32-25 cases where a guardianship program is appointed guardian, the judge
32-26 may consider requiring a single bond to cover all of the wards of
32-27 the guardianship program.
33-1 Sec. 121. AUTHORITY OF GUARDIAN. After the filing of the
33-2 oath and bond, the order of the court appointing the guardian is
33-3 effective on the issuance of letters of guardianship. The order is
33-4 evidence of the authority of the guardian to act within the scope
33-5 of the powers and duties set forth in the order.
33-6 Sec. 121A. ACCOUNT AND INVENTORY. (a) Except as provided
33-7 by Subsection (b) of this section, a guardian of an adult shall
33-8 annually file, not later than the 60th day after the anniversary
33-9 date of the guardian's appointment, a written verified account of
33-10 the guardian's administration of the person and of the estate of
33-11 the adult.
33-12 (b) The court may allow the account of the estate of the
33-13 adult to be filed at intervals of up to 36 months if an adequate
33-14 bond or safekeeping agreement is in effect and the ward's income is
33-15 governmental benefits that the guardian by court order has to use
33-16 for maintenance and support of the ward. The court shall instruct
33-17 the guardian that any substantial increase in income or assets must
33-18 be reported not later than the 30th day after the date of the
33-19 substantial increase.
33-20 (c) Not later than the 90th day after the date of
33-21 appointment, a guardian who is managing properties shall prepare
33-22 and file a verified inventory of all the property of the
33-23 incapacitated person in the guardian's possession or knowledge,
33-24 including a statement of all encumbrances, liens, and other secured
33-25 charges on any item.
33-26 (d) A guardian of an adult shall file a written verified
33-27 account of the guardian's administration of the person and of the
34-1 estate of the adult not later than the 30th day after termination
34-2 of the guardianship.
34-3 Sec. 121B. MANAGEMENT OF PROPERTY. To the extent that an
34-4 order of the court gives a guardian control of any property of an
34-5 incapacitated person, the guardian shall take care of and manage
34-6 the property as a prudent person would manage the person's own
34-7 property.
34-8 Sec. 121C. CARE OF WARD; COMMITMENT. (a) The guardian of
34-9 an adult may expend funds of the guardianship as provided by court
34-10 order to care for and maintain the incapacitated person. The
34-11 guardian may apply for residential care and services provided by a
34-12 public or private facility on behalf of an incapacitated person who
34-13 has decision-making ability if the person agrees to be placed in
34-14 the facility. The guardian shall report the condition of the
34-15 person to the court at regular intervals at least annually, unless
34-16 the court orders more frequent reports. If the person is receiving
34-17 residential care in a public or private residential care facility,
34-18 the guardian shall include in any report to the court a statement
34-19 as to the necessity for continued care in the facility.
34-20 (b) Except as provided by Subsection (c) or (d) of this
34-21 section, a guardian may not voluntarily admit an incapacitated
34-22 person to a public or private inpatient psychiatric facility or to
34-23 a residential care facility operated by the Texas Department of
34-24 Mental Health and Mental Retardation for care and treatment. If
34-25 care and treatment in a psychiatric or a residential care facility
34-26 are necessary, the person or the person's guardian may apply for
34-27 services under Sections 593.027 and 593.028, Health and Safety
35-1 Code, or apply to a court to commit the person under Subtitle D,
35-2 Title 7, Health and Safety Code (Persons with Mental Retardation
35-3 Act), Subtitle C, Title 7, Health and Safety Code (Texas Mental
35-4 Health Code), or Chapter 462, Health and Safety Code.
35-5 (c) A guardian of a person younger than 16 years of age may
35-6 voluntarily admit an incapacitated person to a public or private
35-7 inpatient psychiatric facility for care and treatment.
35-8 (d) A guardian of a person may voluntarily admit an
35-9 incapacitated person to a residential care facility for emergency
35-10 care or respite care under Section 593.027 or 593.028, Health and
35-11 Safety Code.
35-12 Sec. 121D. NONRESIDENT GUARDIAN'S REMOVAL OF WARD'S PROPERTY
35-13 FROM STATE. A nonresident guardian, whether or not qualified under
35-14 this code, may remove personal property of the ward out of the
35-15 state if:
35-16 (1) the removal does not conflict with the tenure of
35-17 the property or the terms and limitations of the guardianship under
35-18 which the property is held; and
35-19 (2) all debts known to exist against the estate in
35-20 this state are paid or secured by bond payable to and approved by
35-21 the judge of the court in which guardianship proceedings are
35-22 pending in this state.
35-23 SUBPART E. TERMINATION, MODIFICATION, REMOVAL, OR RESIGNATION
35-24 Sec. 122. TERM OF APPOINTMENT OF GUARDIAN. (a) Unless
35-25 otherwise discharged as provided by law, a guardian remains in
35-26 office until the estate is closed.
35-27 (b) The guardianship shall be settled and closed when the
36-1 incapacitated person:
36-2 (1) dies and, if the person was married, the person's
36-3 spouse qualifies as survivor in community;
36-4 (2) is found by the court to have full capacity to
36-5 care for himself or herself and to manage the person's property;
36-6 (3) is no longer a minor;
36-7 (4) returns to the United States, if the person was a
36-8 missing person and the court grants the motion of any interested
36-9 person to vacate the original order of guardianship; or
36-10 (5) no longer must have a guardian appointed to
36-11 receive funds due the person from any governmental source.
36-12 (c) An order appointing a guardian or a successor guardian
36-13 may specify a period of not more than one year during which a
36-14 petition for adjudication that the incapacitated person no longer
36-15 requires the guardianship may not be filed without special leave.
36-16 (d) Except as provided by Subsection (c) of this section, a
36-17 ward or any person interested in the ward's welfare may petition
36-18 the court for an order:
36-19 (1) finding that the ward no longer needs the
36-20 guardianship and ordering that the guardian resign or be removed;
36-21 (2) finding that the ward lacks the capacity to do
36-22 some or all of the tasks necessary to care for himself or herself
36-23 or to manage the ward's property and granting additional powers or
36-24 duties to the guardian with respect to the care of the ward or the
36-25 management of the ward's property by the guardian; or
36-26 (3) finding that the ward has regained the capacity to
36-27 do some but not all of the tasks necessary to care for himself or
37-1 herself or to manage the ward's property and:
37-2 (A) limiting the powers or duties of the
37-3 guardian with respect to the care of the ward or the management of
37-4 the ward's property by the guardian; and
37-5 (B) permitting the ward to care for himself or
37-6 herself or to manage the ward's property commensurate with the
37-7 ward's ability.
37-8 (e) A request for an order under this section may be made by
37-9 informal letter to the court. A person who knowingly interferes
37-10 with the transmission of the request to the court may be adjudged
37-11 guilty of contempt of court.
37-12 (f) If a nonresident guardian of a nonresident ward
37-13 qualifies as guardian under Subpart C of this part, the
37-14 guardianship of any resident guardian may be terminated.
37-15 Sec. 123. REMOVAL OR RESIGNATION OF GUARDIAN. (a) On
37-16 petition of the incapacitated person or any person interested in
37-17 the person's welfare and on service of notice as directed by the
37-18 court, the court may remove a guardian if the court finds removal
37-19 in the best interests of the person.
37-20 (b) On petition of the guardian, the court may accept the
37-21 guardian's resignation.
37-22 Sec. 123A. ANNUAL DETERMINATION WHETHER GUARDIANSHIP SHOULD
37-23 BE CONTINUED, MODIFIED, OR TERMINATED. (a) A court in which a
37-24 guardianship proceeding is pending shall review annually each
37-25 guardianship to determine whether the guardianship should be
37-26 continued, modified, or terminated.
37-27 (b) In reviewing a guardianship as provided by Subsection
38-1 (a) of this section, a statutory probate court shall:
38-2 (1) review a report prepared by a court investigator
38-3 under Section 25.0025, Government Code;
38-4 (2) review a report prepared by a court visitor under
38-5 Section 127 of this code; or
38-6 (3) conduct a hearing if necessary.
38-7 (c) In reviewing a guardianship as provided by Subsection
38-8 (a) of this section, a court that is not a statutory probate court
38-9 may use any appropriate method determined by the court according to
38-10 the court's caseload and the resources available to the court.
38-11 (d) A determination under this section must be in writing
38-12 and filed with the clerk.
38-13 Sec. 124. APPOINTMENT OF SUCCESSOR GUARDIAN. (a) At any
38-14 hearing under this chapter the court may appoint one or more
38-15 successor guardians to assume the position of guardian without
38-16 additional judicial proceedings on the failure to qualify, death,
38-17 incapacity, or resignation of the preceding guardian. The guardian
38-18 serving at the time a successor guardian is appointed shall furnish
38-19 each successor guardian with a copy of the court order establishing
38-20 or modifying the initial guardianship and a copy of the order
38-21 appointing the successor guardian. A successor guardian who
38-22 assumes the position of guardian without a court proceeding shall
38-23 notify the court having jurisdiction of the guardianship of the
38-24 change in guardian not later than the 11th day after the date the
38-25 successor guardian assumes the position.
38-26 (b) Unless provision for a successor is made under
38-27 Subsection (a) of this section, if a guardian dies, resigns, or is
39-1 removed, the court may, on application and on service of notice as
39-2 directed by the court, appoint a successor guardian.
39-3 (c) A successor guardian has the powers and rights and is
39-4 subject to all of the duties of the preceding guardian.
39-5 SUBPART F. REMOVAL OF GUARDIANSHIP TO ANOTHER COUNTY
39-6 Sec. 125. APPLICATION FOR REMOVAL OF GUARDIANSHIP. When a
39-7 guardian or any other person desires to remove the transaction of
39-8 the business of the guardianship from one county to another, the
39-9 person shall file a written application in the court in which the
39-10 guardianship is pending stating the reason for moving the
39-11 transaction of business.
39-12 Sec. 125A. NOTICE. (a) On filing an application to remove
39-13 a guardianship to another county, the sureties on the bond of the
39-14 guardian shall be cited by personal service to appear and show
39-15 cause why the application should not be granted.
39-16 (b) If an application is filed by a person other than the
39-17 guardian, the guardian shall be cited by personal service to appear
39-18 and show cause why the application should not be granted.
39-19 Sec. 125B. COURT ACTION. On hearing an application under
39-20 Section 125 of this code, if good cause is not shown to deny the
39-21 application and it appears that removal of the guardianship is in
39-22 the best interests of the ward, the court shall enter an order
39-23 authorizing the removal on payment on behalf of the estate of all
39-24 accrued costs.
39-25 Sec. 125C. TRANSCRIPT OF RECORD. When an order of removal
39-26 is made under Section 125B of this code, the clerk shall record any
39-27 unrecorded papers of the guardianship required to be recorded and
40-1 make out a complete certified transcript of all the orders,
40-2 decrees, judgments, and proceedings in the guardianship. On
40-3 payment of the clerk's fees, the clerk shall transmit the
40-4 transcript, with the original papers in the case, to the county
40-5 clerk of the county to which the guardianship was ordered removed.
40-6 Sec. 125D. REMOVAL EFFECTIVE. The order removing a
40-7 guardianship does not take effect until:
40-8 (1) the transcript required by Section 125C of this
40-9 code is filed in the office of the county clerk of the county to
40-10 which the guardianship was ordered removed; and
40-11 (2) a certificate under the clerk's official seal and
40-12 reporting the filing of the transcript is filed in the court
40-13 ordering the removal by the county clerk of the county to which the
40-14 guardianship was ordered removed.
40-15 Sec. 125E. CONTINUATION OF GUARDIANSHIP. When a
40-16 guardianship is removed from one county to another in accordance
40-17 with this subpart, the guardianship proceeds in the court to which
40-18 it was removed as if it had been originally commenced in that
40-19 court. It is not necessary to record in the receiving court any of
40-20 the papers in the case that were recorded in the court from which
40-21 the case was removed.
40-22 Sec. 125F. NEW GUARDIAN MAY BE APPOINTED ON REMOVAL. If it
40-23 appears to the court that removal of the guardianship is in the
40-24 best interests of the ward but that because of the removal it will
40-25 be unduly expensive or unduly inconvenient to the estate for the
40-26 guardian of the estate to continue to serve in that capacity, the
40-27 court may in its order of removal revoke the letters of
41-1 guardianship and appoint a new guardian, and the former guardian
41-2 shall account for and deliver the estate as provided in this code
41-3 in a case in which a guardian resigns.
41-4 SUBPART G. PRIVATE PROFESSIONAL GUARDIANS
41-5 Sec. 126. REGISTRATION OF PRIVATE PROFESSIONAL GUARDIANS.
41-6 (a) A private professional guardian must apply annually to the
41-7 clerk of the county having venue over the proceeding for the
41-8 appointment of a guardian for certification. The application must
41-9 include a sworn statement containing the following information
41-10 concerning a private professional guardian or a person who
41-11 represents or plans to represent the interests of a ward as a
41-12 guardian on behalf of the private professional guardian:
41-13 (1) educational background and professional
41-14 experience;
41-15 (2) three or more professional references;
41-16 (3) the names of all of the wards the private
41-17 professional guardian or person is or will be serving as a
41-18 guardian;
41-19 (4) the aggregate fair market value of the property of
41-20 all wards that is being or will be managed by the private
41-21 professional guardian or person;
41-22 (5) place of residence, business address, and business
41-23 telephone number; and
41-24 (6) whether the private professional guardian or
41-25 person has ever been removed as a guardian by the court or resigned
41-26 as a guardian in a particular case, and, if so, a description of
41-27 the circumstances causing the removal or resignation, and the style
42-1 of the suit, the docket number, and the court having jurisdiction
42-2 over the proceeding.
42-3 (b) The application must be accompanied by a nonrefundable
42-4 fee set by the clerk in an amount necessary to cover the cost of
42-5 administering this section.
42-6 (c) The term of the certification begins on the date that
42-7 the requirements are met and extends through December 31 of the
42-8 initial year. After the initial year of certification, the term of
42-9 the certification begins on January 1 and ends on December 31 of
42-10 each year. A renewal application must be completed during December
42-11 of the year preceding the year for which the renewal is requested.
42-12 (d) The clerk shall bring the information received under
42-13 this section to the judge's attention for review. The judge shall
42-14 use the information only in determining whether to appoint, remove,
42-15 or continue the appointment of a private professional guardian.
42-16 Sec. 126A. ACCESS TO CRIMINAL HISTORY RECORDS. (a) The
42-17 clerk of the county where venue occurs for the proceeding for the
42-18 appointment of a guardian shall obtain criminal history record
42-19 information that is maintained by the Department of Public Safety
42-20 or the Federal Bureau of Investigation identification division
42-21 relating to a private professional guardian or a person who
42-22 represents or plans to represent the interests of a ward as a
42-23 guardian on behalf of the private professional guardian.
42-24 (b) The criminal history record information obtained under
42-25 this section is for the exclusive use of the court and is
42-26 privileged and confidential. The criminal history record
42-27 information may not be released or otherwise disclosed to any
43-1 person or agency except on court order or consent of the person
43-2 being investigated. The clerk may destroy the criminal history
43-3 information records after the records are used for the purposes
43-4 authorized by this section.
43-5 (c) The court shall use the information obtained under this
43-6 section only in determining whether to appoint, remove, or continue
43-7 the appointment of a private professional guardian.
43-8 (d) A person commits an offense if the person releases or
43-9 discloses any information received under this section without the
43-10 authorization prescribed by Subsection (b) of this section. An
43-11 offense under this subsection is a Class A misdemeanor.
43-12 (e) The clerk may charge a reasonable fee sufficient to
43-13 recover the costs of obtaining criminal history information records
43-14 authorized by Subsection (a) of this section.
43-15 SUBPART H. COURT VISITOR PROGRAM
43-16 Sec. 127. COURT VISITOR PROGRAM. (a) Each statutory
43-17 probate court shall operate a court visitor program to assess the
43-18 conditions of wards and proposed wards. Another court that has
43-19 jurisdiction over a guardianship proceeding may operate a court
43-20 visitor program in accordance with the population needs and
43-21 financial abilities of the jurisdiction. A court that operates a
43-22 court visitor program shall use persons willing to serve without
43-23 compensation to the greatest extent possible.
43-24 (b) On request by any interested person, including a ward or
43-25 proposed ward, or on its own motion, and at any time before the
43-26 appointment of a guardian or during the pendency of a guardianship
43-27 of the person or estate, a court may appoint a court visitor to
44-1 evaluate the ward or proposed ward and provide a written report
44-2 that substantially complies with Subsection (c) of this section.
44-3 (c) A court visitor's report must include:
44-4 (1) a description of the nature and degree of capacity
44-5 and incapacity of the ward or proposed ward, including the medical
44-6 history of the ward or proposed ward, if reasonably available and
44-7 not waived by the court;
44-8 (2) a medical prognosis and a list of the treating
44-9 physicians of the ward or proposed ward, when appropriate;
44-10 (3) a description of the living conditions and
44-11 circumstances of the ward or proposed ward;
44-12 (4) a description of the social, intellectual,
44-13 physical, and educational condition of the ward or proposed ward;
44-14 (5) a statement that the court visitor has personally
44-15 visited or observed the ward or proposed ward;
44-16 (6) a statement of the date of the most recent visit
44-17 by the guardian, if one has been appointed;
44-18 (7) a recommendation as to any modifications needed in
44-19 the guardianship or proposed guardianship, including removal or
44-20 denial of the guardianship; and
44-21 (8) any other information required by the court.
44-22 (d) The court visitor shall file the report not later than
44-23 the 14th day after the date of the evaluation conducted by the
44-24 court visitor, and the court visitor making the report must swear,
44-25 under penalty of perjury, to its accuracy to the best of the court
44-26 visitor's knowledge and belief.
44-27 (e) A court visitor who has not expressed a willingness to
45-1 serve without compensation is entitled to reasonable compensation
45-2 for services in an amount set by the court and to be taxed as costs
45-3 in the proceeding.
45-4 <PART 3. ESTATES OF MINORS AND INCOMPETENTS>
45-5 <Sec. 108. ><Laws Applicable To Guardianships><. The
45-6 provisions, rules, and regulations which govern estates of
45-7 decedents shall apply to and govern guardianships, whenever the
45-8 same are applicable and are not inconsistent with any provision of
45-9 this Code.>
45-10 <Sec. 109. ><Persons Qualified To Serve as Guardians><.
45-11 (a) Natural Guardians. If the parents live together, both parents
45-12 are the natural guardians of the person of the minor children by
45-13 the marriage, and one of the parents, which may be either the
45-14 father or the mother, is entitled to be appointed guardian of their
45-15 estates. In event of disagreement as to which parent shall be
45-16 appointed, the court shall make the appointment on the basis of
45-17 which one is the better qualified to serve in that capacity. If
45-18 one parent is dead, the survivor is the natural guardian of the
45-19 person of the minor children, and is entitled to be appointed
45-20 guardian of their estates. The rights of parents who do not live
45-21 together are equal; the guardianship of their minor children shall
45-22 be assigned to one or the other, the interest of the children alone
45-23 being considered.>
45-24 <(b) Guardians of Orphans. These rules shall govern as to
45-25 orphans who are minors:>
45-26 <(1) If the last surviving parent has appointed no
45-27 guardian, the nearest ascendant in the direct line of such minor is
46-1 entitled to guardianship of both the person and estate of such
46-2 minor.>
46-3 <(2) If there be more than one ascendant in the same
46-4 degree in the direct line, they are equally entitled. The
46-5 guardianship shall be given to one or the other, according to
46-6 circumstances, only the best interest of the orphan being
46-7 considered.>
46-8 <(3) If the orphan has no ascendant in the direct
46-9 line, the guardianship shall be given to the nearest of kin. If
46-10 there be two or more in the same degree, the guardianship shall be
46-11 given to one or the other, according to circumstances, only the
46-12 best interest of the orphan being considered.>
46-13 <(4) If there be no relative of the minor qualified to
46-14 take the guardianship, or if no person entitled to such
46-15 guardianship applies therefor, the court shall appoint a qualified
46-16 person to be such guardian.>
46-17 <(c) Guardians for Persons Other Than Minors. If a person
46-18 is an incompetent, or one for whom it is necessary that a guardian
46-19 be appointed to receive funds due from any governmental source,
46-20 these rules shall govern:>
46-21 <(1) If such person has a spouse who is not
46-22 disqualified, such spouse shall be entitled to the guardianship in
46-23 preference to any other person.>
46-24 <(2) If there be no qualified spouse, the nearest of
46-25 kin to such person, who is not disqualified, or in case of refusal
46-26 by such spouse or nearest of kin to serve, then any other qualified
46-27 person shall be entitled to the guardianship.>
47-1 <(3) Where two or more persons are equally entitled,
47-2 the guardianship shall be given to one or the other, according to
47-3 the circumstances, only the best interest of the ward being
47-4 considered.>
47-5 <(d) Presumption Concerning Best Interest. It is presumed
47-6 not to be in the best interest of a ward to appoint a person as
47-7 guardian of the ward if the person has been finally convicted of
47-8 any sexual offense, sexual assault, aggravated assault, aggravated
47-9 sexual assault, injury to a child, abandoning or endangering a
47-10 child, or incest.>
47-11 <Sec. 110. ><Persons Disqualified To Serve as Guardians><. The
47-12 following persons shall not be appointed guardians:>
47-13 <(a) Minors.>
47-14 <(b) Persons whose conduct is notoriously bad.>
47-15 <(c) Incompetents.>
47-16 <(d) Those who are themselves parties, or whose father or
47-17 mother is a party to a lawsuit on the result of which the welfare
47-18 of the person for whom, or for whose estate, a guardian is to be
47-19 appointed, may depend.>
47-20 <(e) Those who are indebted to the person for whom or for
47-21 whose estate a guardian is to be appointed, unless they pay the
47-22 debt prior to the appointment, or who are asserting any claim to
47-23 any property, real or personal, adverse to the person for whom, or
47-24 for whose estate, the appointment is sought.>
47-25 <(g) Those who by reason of inexperience or lack of
47-26 education, or for other good reason, are shown to be incapable of
47-27 properly and prudently managing and controlling the ward or his
48-1 estate.>
48-2 <Sec. 111. ><Application for Appointment of Permanent
48-3 Guardian><. (a) A proceeding for the appointment of a guardian
48-4 shall be begun by written application filed in the court of the
48-5 county having venue thereof. Any person may make such application.
48-6 Such application shall be sworn and must state:>
48-7 <(1) The name, sex, date of birth, and residence, of
48-8 the person for whom the appointment of a guardian is sought;>
48-9 <(2) If a minor, the names of the parents and next of
48-10 kin of such persons, and whether either or both of the parents are
48-11 deceased;>
48-12 <(c) If a minor, a statement of whether the minor has
48-13 been the subject of a legal or conservatorship proceeding within
48-14 the preceding two-year period, and if so, the court involved, the
48-15 nature of the proceeding, and the final disposition, if any, of the
48-16 proceeding;>
48-17 <(3) If a person 60 years of age or older, the name
48-18 and address, to the best of the applicant's knowledge, of the
48-19 person's spouse, brother, sister, and children;>
48-20 <(4) A general description of the property comprising
48-21 such person's estate, if guardianship of the estate is sought;>
48-22 <(5) The facts which require that a guardian be
48-23 appointed;>
48-24 <(6) The name, relationship, and address of the person
48-25 whom the applicant desires to have appointed as guardian;>
48-26 <(7) Whether guardianship of the person and estate, or
48-27 of the person or of the estate, is sought;>
49-1 <(8) The social security number of the applicant and
49-2 of the person for whom the appointment of a guardian is sought; and>
49-3 <(9) Such other facts as show that the court has venue
49-4 over the proceeding.>
49-5 <(b) The portion of the application stating the information
49-6 required by Subsection (a)(3) of this section shall be sworn to by
49-7 the applicant.>
49-8 <Sec. 112. ><Judge May Cause Application to be Filed><.
49-9 Whenever it comes to the knowledge of the county judge that any
49-10 person whose legal domicile is in his county, or who is found
49-11 therein, is a minor, a person of unsound mind, or an habitual
49-12 drunkard, and is without a guardian of his person or of his estate
49-13 within this State, and that there is probable cause for the
49-14 exercise of his jurisdiction, he may cause proper proceedings to be
49-15 commenced and application to be made as provided in the preceding
49-16 Section for the appointment of a guardian of the person and of the
49-17 estate of such person, or of either. Upon the filing of such
49-18 application, process shall be issued and served as hereinafter
49-19 provided.>
49-20 <Sec. 113. ><Contest Of Proceedings><. Any person has the right
49-21 to appear and contest the appointment of a particular person as
49-22 guardian, or to contest any proceeding which he deems to be
49-23 injurious to the ward, or to commence any proceeding which he deems
49-24 beneficial to the ward.>
49-25 <Sec. 113A. ><Appointment of Attorney Ad Litem><. In a
49-26 proceeding under the provisions of this chapter for the appointment
49-27 of a guardian, the judge shall appoint an attorney ad litem to
50-1 represent the interests of the person for whom the permanent
50-2 guardianship is sought and shall allow the attorney ad litem a
50-3 reasonable fee for his services to be taxed as part of the costs.>
50-4 <Sec. 114. ><Facts Which Must Be Proved><. Before appointing a
50-5 guardian, the court must find:>
50-6 <(a) That the person for whom a guardian is to be appointed
50-7 is either a minor, a person of unsound mind, an habitual drunkard,
50-8 or a person for whom it is necessary to have a guardian appointed
50-9 to receive funds due such person from any governmental source. In
50-10 the last case, a certificate of the executive head, or his
50-11 representative, of the bureau, department, or agency of the
50-12 government through which such funds are to be paid, to the effect
50-13 that the appointment of a guardian is a condition precedent to the
50-14 payment of any funds due such person, shall be prima facie evidence
50-15 of the necessity for such appointment.>
50-16 <(b) That the court has venue of the case.>
50-17 <(c) That the person to be appointed guardian is not
50-18 disqualified to act as such and is entitled to be appointed; or, in
50-19 case no person who is entitled to appointment applies for it, that
50-20 the person appointed is a proper person to act as such guardian.>
50-21 <(d) That the rights of persons or property will be
50-22 protected by the appointment of a guardian.>
50-23 <(e) If the guardian is to be appointed for a minor, that
50-24 the creation of the guardianship is not for the primary purpose of
50-25 enabling the minor to establish residency for enrollment in a
50-26 school or school district in which the student would not otherwise
50-27 be eligible for enrollment.>
51-1 <Sec. 115. ><Jury Trial Not Prerequisite><. A jury trial,
51-2 verdict, and judgment that a person is of unsound mind or an
51-3 habitual drunkard shall not be prerequisite to an appropriate
51-4 finding and adjudication by the court and appointment of a guardian
51-5 for the person alleged to be of unsound mind or an habitual
51-6 drunkard; nor shall it be necessary that such person be present at
51-7 the trial.>
51-8 <Sec. 116. ><Only One Person To Be Appointed Guardian><. Only
51-9 one person can be appointed as guardian of the person or estate;
51-10 but one person may be appointed guardian of the person, and another
51-11 of the estate, whenever the court shall be satisfied that it will
51-12 be for the advantage of the ward to do so; but nothing herein shall
51-13 be held to prohibit the joint appointment of a husband and wife, or
51-14 of co-guardians duly appointed under the laws of another state,
51-15 territory or country, or of the District of Columbia.>
51-16 <Sec. 117. ><Appointment Of Guardian By Will><. The surviving
51-17 parent of a minor may, by will or written declaration, appoint any
51-18 qualified person to be guardian of the person of his or her
51-19 children after the death of such parent; and, if not disqualified,
51-20 such person shall also be entitled to be appointed guardian of
51-21 their estate after the death of such parent, upon compliance with
51-22 the provisions of this Code.>
51-23 <Sec. 118. ><Selection Of Guardian By Minor><. (a) When No
51-24 Other Guardian Has Been Appointed. When an application has been
51-25 filed for the guardianship of the person or estate, or of both, of
51-26 a minor who has attained the age of fourteen years, such minor may,
51-27 by writing filed with the clerk, make choice of the guardian,
52-1 subject to the court's approval of such choice.>
52-2 <(b) When Another Guardian Has Been Appointed. A minor upon
52-3 attaining the age of fourteen years may select another guardian
52-4 either of his person or estate, or both, if such minor has a
52-5 guardian appointed by the court, or if, having a guardian appointed
52-6 by will or written declaration of the parent of such minor, such
52-7 last named guardian dies, resigns, or is removed from guardianship;
52-8 and the court shall, if satisfied that the person selected is
52-9 suitable and competent, make such appointment and revoke the
52-10 letters of guardianship to the former guardian. Such selection
52-11 shall be made in open court, in person or by attorney, by making
52-12 application therefor.>
52-13 <Sec. 118A. ><Designation of Guardian Before Need Arises><.
52-14 (a) A person, other than a minor or an incompetent, may designate
52-15 by a written declaration persons to serve as guardian of the person
52-16 of the declarant or the estate of the declarant in the event the
52-17 declarant becomes incompetent. The declaration must be attested to
52-18 by at least two credible witnesses 14 years of age or older who are
52-19 not named as guardian or alternative guardian in the declaration.>
52-20 <(b) A declarant may, in the declaration, disqualify named
52-21 persons from serving as guardian of the declarant's person or
52-22 estate, and the persons named may not be appointed guardian under
52-23 any circumstances.>
52-24 <(c) The declaration must have attached a self-proving
52-25 affidavit signed by the declarant and the witnesses attesting to
52-26 the competence of the declarant and the execution of the
52-27 declaration. A properly executed and witnessed declaration and
53-1 affidavit are prima facie evidence that the declarant was competent
53-2 at the time he executed the declaration and that the guardian named
53-3 in the declaration would serve the best interests of the ward.>
53-4 <(d) The declaration and affidavit may be filed with the
53-5 court at any time after the application for appointment of a
53-6 guardian is filed and before a guardian is appointed. Unless the
53-7 court finds that the person designated in the declaration to serve
53-8 as guardian is disqualified or would not serve the best interests
53-9 of the ward, the court shall appoint the person as guardian in
53-10 preference to those otherwise entitled to serve as guardian under
53-11 this code. If the designated guardian fails to qualify, is dead,
53-12 refuses to serve, resigns, or dies after being appointed guardian,
53-13 or is otherwise unavailable to serve as guardian, the court shall
53-14 appoint the next qualified designated alternate guardian named in
53-15 the declaration. If the guardian and all alternate guardians fail
53-16 to qualify, are dead, refuse to serve, or later die or resign, the
53-17 court shall appoint another person to serve as otherwise provided
53-18 by this code.>
53-19 <(e) The declarant may revoke a declaration in any manner
53-20 provided for the revocation of a will under Section 63 of this
53-21 code, including by the subsequent reexecution of the declaration in
53-22 the manner required for the original declaration.>
53-23 <(f) If a declarant designates the declarant's spouse to
53-24 serve as guardian under this section, and the declarant is
53-25 subsequently divorced from that spouse before a guardian is
53-26 appointed, the provision of the declaration designating the spouse
53-27 has no effect.>
54-1 <(g) A declaration and affidavit may be in any form adequate
54-2 to clearly indicate the declarant's intention to designate a
54-3 guardian. The following forms may, but need not, be used:>
54-4 <DECLARATION OF GUARDIAN IN THE EVENT OF LATER>
54-5 <INCOMPETENCE OR NEED OF GUARDIAN>
54-6 <I, _______________, make this Declaration of Guardian, to
54-7 operate if the need for a guardian for me later arises.>
54-8 <1. I designate _______________ to serve as guardian of my
54-9 person, _______________ as first alternate guardian of my person,
54-10 _______________ as second alternate guardian of my person, and
54-11 _______________ as third alternate guardian of my person.>
54-12 <2. I designate _______________ to serve as guardian of my
54-13 estate, _______________ as first alternate guardian of my estate,
54-14 _______________ as second alternate guardian of my estate, and
54-15 _______________ as third alternate guardian of my estate.>
54-16 <3. If any guardian or alternate guardian dies, fails, or
54-17 refuses to qualify, or resigns, the next named alternate guardian
54-18 succeeds the prior named guardian and becomes my guardian.>
54-19 <4. I expressly disqualify the following persons from
54-20 serving as guardian of my person: _______________,
54-21 _______________, and _______________.>
54-22 <5. I expressly disqualify the following persons from
54-23 serving as guardian of my estate: _______________, _______________,
54-24 and _______________.>
54-25 <Signed this _____ day of __________, 19___.>
54-26 <_______________>
54-27 <Declarant>
55-1 <_______________> <_______________>
55-2 <Witness> <Witness>
55-3 <SELF-PROVING AFFIDAVIT>
55-4 <Before me, the undersigned authority, on this date
55-5 personally appeared the declarant, and _______________ and
55-6 _______________ as witnesses, and all being duly sworn, the
55-7 declarant said that the above instrument was his Declaration of
55-8 Guardian and that he had made and executed it for the purposes
55-9 therein expressed. The witnesses declared to me that they are each
55-10 14 years of age or older, that they saw the declarant sign the
55-11 declaration, that they signed the declaration as witnesses, and
55-12 that the declarant appeared to them to be of sound mind.>
55-13 <_______________>
55-14 <Declarant>
55-15 <_______________> <_______________>
55-16 <Affiant> <Affiant>
55-17 <Subscribed and sworn to before me by the above named
55-18 declarant and affiants on this _____ day of __________, 19___.>
55-19 <___________________________>
55-20 <Notary Public in and for>
55-21 <the State of Texas>
55-22 <My Commission expires:>
55-23 <Sec. 119. ><Failure Of Guardian To Qualify><. If a person
55-24 appointed guardian fails to qualify as such according to law, or
55-25 dies, resigns, or is removed, the court shall appoint another
55-26 guardian in his stead, upon application, but without further notice
55-27 or citation.>
56-1 <Sec. 120. ><Term Of Appointment Of Guardian><. Unless sooner
56-2 discharged according to law, a guardian remains in office until the
56-3 estate is closed in accordance with the provisions of this Code, as
56-4 hereinafter set out.>
56-5 <Sec. 121. ><Removal Of Guardianship To Another County May Be
56-6 Had><. (a) Application for Removal of Guardianship. When a
56-7 guardian, or any other person, desires to remove the transaction of
56-8 the business of the guardianship from one county to another, he
56-9 shall file in the court where such guardianship is pending a
56-10 written application asking authority to do so, and shall state in
56-11 such application his reason for desiring such removal.>
56-12 <(b) Sureties on Bond to Be Cited. Upon the filing of such
56-13 application, the sureties upon the bond of such guardian shall be
56-14 cited by personal service to appear and show cause why such
56-15 application should not be granted.>
56-16 <(c) When Guardian Shall Be Cited. If the application for
56-17 removal is filed by any person other than the guardian, the
56-18 guardian also shall be cited by personal service to appear and show
56-19 cause why such application should not be granted.>
56-20 <(d) Action of the Court. Upon the hearing of the
56-21 application, if no good cause be shown to the contrary, and if it
56-22 appears that the removal of the guardianship would be to the best
56-23 interest of the ward, the court shall enter an order authorizing
56-24 such removal upon the payment on behalf of the estate of all costs
56-25 that have accrued.>
56-26 <(e) Transcript of Record. When such order of removal has
56-27 been made, the clerk shall record all papers of the guardianship
57-1 required to be recorded that have not already been recorded, and
57-2 shall make out a full and complete certified transcript of all the
57-3 orders, decrees, judgments, and proceedings in such guardianship;
57-4 and, upon the payment of his fees therefor, shall transmit such
57-5 transcript, together with all the original papers in the case, to
57-6 the county clerk of the county to which such guardianship has been
57-7 ordered removed.>
57-8 <(f) When Removal Shall Become Effective. The order
57-9 removing a guardianship shall not take effect until such transcript
57-10 has been filed in the office of the county clerk of the county to
57-11 which such guardianship has been ordered removed, and until a
57-12 certificate of such fact from the clerk filing the same, under his
57-13 official seal, has been filed in the court making such order of
57-14 removal.>
57-15 <Sec. 122. ><Continuation of Guardianship><. When a
57-16 guardianship has been removed from one county to another in
57-17 accordance with the foregoing provisions of this Code, it shall be
57-18 proceeded with in the court to which it has been removed as if it
57-19 had been originally commenced in said court; but it shall not be
57-20 necessary to record any of the papers in the case that have been
57-21 recorded in the court from which the same has been removed.>
57-22 <Sec. 123. ><New Guardian May Be Appointed Upon Removal><. If
57-23 it appears to the court that the removal of the guardianship would
57-24 be to the best interest of the ward, but that, by virtue of such
57-25 removal, it will be unduly expensive to the estate, or unduly
57-26 inconvenient, for the guardian of the estate to continue to serve
57-27 in such capacity, the court may in its order of removal, revoke the
58-1 letters of guardianship and appoint a new guardian. In such event,
58-2 the former guardian shall account for and deliver the estate as is
58-3 provided in this Code in cases where guardians resign.>
58-4 <Sec. 124. NONRESIDENTS, APPOINTMENT OF GUARDIANS FOR.
58-5 (a) Appointment of Non-Resident Guardian. A non-resident or
58-6 non-residents of Texas, being natural persons or corporations,
58-7 resident of another state or of the District of Columbia, or of any
58-8 territory, or of any other nation or country, may be appointed and
58-9 qualified as guardian, or co-guardian of his or its or their
58-10 non-resident ward's estate situated in Texas in the same manner and
58-11 by the same procedure provided in this Code for the appointment and
58-12 qualification of a resident of this State as guardian of the
58-13 estates of minors, persons of unsound mind, or habitual drunkards;
58-14 provided that, by proceedings in and decree or decrees of a court
58-15 of competent jurisdiction in another state, the District of
58-16 Columbia, a territory, or another nation or country, of his or its
58-17 or their residence, such non-resident applicant or applicants shall
58-18 have been previously duly appointed and are still qualified as
58-19 guardian, co-guardians, tutor, curator, committee, or fiduciary
58-20 legal representative by whatever name known in such foreign
58-21 jurisdiction, of the property or estate of his or its or their ward
58-22 situated within the jurisdiction of such foreign court, whether
58-23 such ward be a minor, a person of unsound mind, or an habitual
58-24 drunkard; and provided further that, with his or its or their
58-25 written application for appointment in the county court of any
58-26 county in this state where all or part of such ward's estate is
58-27 situated in this state, such non-resident applicant or applicants
59-1 file also a full and complete transcript of the proceedings from
59-2 the records of the court in which he or it or they were appointed
59-3 in the jurisdiction of his or its or their residence, evidencing
59-4 his or its or their due appointment and qualification as such
59-5 guardian, co-guardians, tutor, curator, committee, or other
59-6 fiduciary legal representative, of his or its or their ward's
59-7 property or estate, which transcript shall be certified to and
59-8 attested by the clerk of such foreign court, if there be a clerk,
59-9 and, if there be no clerk, then by the officer of said court
59-10 charged by law with the custody of the records thereof, under the
59-11 seal of such court, if there be a seal, to which transcript shall
59-12 be attached the certificate of the judge, chief justice or
59-13 presiding magistrate, as the case may be, of such foreign court to
59-14 the effect that the said attestation of such transcript by the
59-15 clerk or legal custodian of the court records is in due form; and
59-16 provided further that, without the necessity of notice or citation
59-17 of any character, an order of appointment be made and entered and
59-18 that such non-resident applicant or applicants thus appointed,
59-19 qualify by making and filing oath and bond, subject to the court's
59-20 approval in all respects the same as required of residents thus
59-21 appointed, and file with the court a power of attorney appointing a
59-22 resident agent to accept service of process in all actions or
59-23 proceedings with respect to the estate, whereupon the clerk shall
59-24 issue the letters of guardianship to such non-resident guardian or
59-25 co-guardians. Guardians so qualified shall file inventory and
59-26 appraisement of the estate of the ward in this State subject to the
59-27 jurisdiction of the court, as in ordinary cases, and shall be
60-1 subject to and controlled by all applicable provisions of this Code
60-2 with respect to the handling and settlement of estates by domestic
60-3 guardians.>
60-4 <(b) Domestic Guardian of Non-Resident. When a non-resident
60-5 minor or incompetent owns property in this State, guardianship of
60-6 such estate may be granted when it is made to appear that a
60-7 necessity exists therefor, in like manner as if such minor or
60-8 incompetent resided in this State. The court making the grant of
60-9 such guardianship shall be in the county in which the principal
60-10 estate of the ward is situated, and said court shall take all such
60-11 action and make all such orders with respect to the estate of the
60-12 ward, for the maintenance, support and care, or the education, if
60-13 necessary, of the ward, out of the proceeds of such ward's estate,
60-14 in like manner as if the ward were a resident of this State, and
60-15 guardianship of the person and estate of the ward had been granted
60-16 by said court, and the ward had been sent abroad by the court for
60-17 education or treatment. In the event there be a qualified
60-18 non-resident guardian of such estate, who later desires to qualify
60-19 in this State, as hereinabove set out, such non-resident guardian
60-20 may do so, and it shall be grounds for closing the resident
60-21 guardianship.>
60-22 <Sec. 125. ><Validation Of Certain Letters Of Guardianship
60-23 Heretofore Issued><. All present existing letters of guardianship
60-24 heretofore issued to nonresident guardians with or without the
60-25 procedure, in whole or in part, and with or without notices and
60-26 citations required in cases of resident guardians, are hereby
60-27 validated as of their respective dates, in so far as the absence of
61-1 such procedure, notices, and citations are concerned, as are also
61-2 all otherwise valid conveyances, mineral leases, and other acts of
61-3 such guardians so qualified and acting in connection therewith
61-4 under supporting orders of county and probate courts of this state;
61-5 provided, however, that this provision shall not be applicable to
61-6 any letters, conveyance, lease, or other act of such guardian which
61-7 is involved in any lawsuit pending in this state on the effective
61-8 date of this Code wherein the absence of such procedure or of such
61-9 notices or citations is an issue.>
61-10 <Sec. 126. ><Removal Of Ward's Property From The State><. Upon
61-11 the recovery of the property of the ward, if it be personal
61-12 property, any non-resident guardian, whether qualified under
61-13 provisions of this Code or not, may remove the same out of the
61-14 state, unless such removal would conflict with the tenure of such
61-15 property, or with the terms and limitations under which it is held;
61-16 but there shall be no removal from the state of any of such
61-17 property until all debts known to exist against the estate in this
61-18 state have been paid, or until the payment of such debts has been
61-19 secured by bond payable to and approved by the judge of the court
61-20 in which the proceedings are pending in this state.>
61-21 <Sec. 127. ><Delivery Of Property><. Any resident executor,
61-22 administrator, or guardian, having any of the estate of a ward, may
61-23 be ordered by the court to deliver the same to a duly qualified and
61-24 acting non-resident guardian of such ward.>
61-25 <Sec. 127A. ><Guardianship of Person Missing on Public
61-26 Service><. (a) Not less than six months after a person is reported
61-27 by an executive department of the United States to be a prisoner of
62-1 war or missing on the public service of the United States, any
62-2 person may file a written application for the appointment of a
62-3 guardian of the person of the missing person in the court of the
62-4 county of residence of the missing person's spouse or, if there is
62-5 no spouse, in the county of residence of a parent or child of the
62-6 missing person, or if there is no parent or child, in the county of
62-7 residence of the missing person's next of kin.>
62-8 <(b) The application shall state:>
62-9 <(1) the name, sex, and last known residence of the
62-10 person for whom the appointment of a guardian is sought;>
62-11 <(2) the executive department issuing the report, the
62-12 date of the report, and the last known whereabouts of the missing
62-13 person;>
62-14 <(3) the names and addresses of the missing person's
62-15 spouse, children, and parents or, if there is no spouse, child, or
62-16 parent, the name and address of the person's next of kin and facts
62-17 that show that the court has venue of the proceeding;>
62-18 <(4) the reason for the appointment and the interest
62-19 of the applicant in the appointment; and>
62-20 <(5) the name, relationship, and address of the person
62-21 whom the applicant desires to have appointed as guardian.>
62-22 <(c) The court shall appoint an attorney to represent the
62-23 interests of the missing person and shall allow the attorney a
62-24 reasonable fee, not to exceed $25, for his services to be taxed as
62-25 part of the costs.>
62-26 <(d) The attorney appointed to represent the interest of the
62-27 missing person shall be personally served with citation to appear
63-1 and answer the application for the appointment of a guardian. The
63-2 clerk of the court shall issue a notice setting forth that an
63-3 application has been filed for the guardianship of the person of
63-4 the missing person and by whom the application is made. The notice
63-5 shall cite all persons interested in the welfare of that person to
63-6 appear at the time and place stated in the notice and contest the
63-7 application, if they so desire. The notice shall be served by
63-8 posting, and the sheriff or other officer posting the notice shall
63-9 return the original, signed officially, stating thereon in writing
63-10 the time and place that he posted the copy of the notice. In
63-11 addition to posting the notice, a copy of the notice shall be
63-12 mailed by registered or certified mail to the spouse, to each
63-13 child, to each parent of the missing person, and to any other
63-14 person that the court deems appropriate.>
63-15 <(e) Any person has the right to appear and contest the
63-16 appointment of a particular person as guardian of the missing
63-17 person, or to contest any guardianship proceeding which he deems to
63-18 be injurious to the missing person, or to commence a guardianship
63-19 proceeding which he deems beneficial to the missing person.>
63-20 <(f) Before appointing a guardian, the court must find:>
63-21 <(1) that the person has been reported missing by an
63-22 executive department of the United States and still is missing;>
63-23 <(2) that the court has venue of the proceeding and
63-24 that there is not an existing guardianship of this person;>
63-25 <(3) that the person applying for appointment as the
63-26 guardian is a proper person to act as the guardian; and>
63-27 <(4) that the rights of the missing person will be
64-1 protected by the appointment of the guardian.>
64-2 <(g) After the hearing, the court shall dismiss the
64-3 application or enter an order appointing a guardian to protect the
64-4 rights of the missing person and may impose in the order any
64-5 conditions or restrictions it deems necessary to protect the rights
64-6 of the missing person. In appointing the guardian, the court shall
64-7 give preference to the spouse of the missing person, and if there
64-8 is no spouse shall give preference to parents and children of the
64-9 missing person.>
64-10 <(h) The jurisdiction of the court over the guardianship is
64-11 continuing. If the missing person returns, on motion of any
64-12 interested person after a notice, stating that the motion has been
64-13 filed and specifying the date of a hearing, has been issued and
64-14 served on the formerly missing person as in other cases, the court
64-15 shall amend or vacate the original order of guardianship. A copy
64-16 of the motion shall accompany the notice.>
64-17 SECTION 9. Subsections (b) and (c), Section 5, Texas Probate
64-18 Code, are amended to read as follows:
64-19 (b) In those counties where there is no statutory probate
64-20 court, county court at law or other statutory court exercising the
64-21 jurisdiction of a probate court, all applications, petitions and
64-22 motions regarding probate, administrations, guardianships, <limited
64-23 guardianships,> and mental illness matters shall be filed and heard
64-24 in the county court, except that in contested probate matters, the
64-25 judge of the county court may on his own motion (or shall on the
64-26 motion of any party to the proceeding, according to the motion)
64-27 request as provided by Section 25.0022, Government Code, the
65-1 assignment of a statutory probate judge to hear the contested
65-2 portion of the proceeding, or transfer the contested portion of the
65-3 proceeding to the district court, which may then hear contested
65-4 matter as if originally filed in district court. The county court
65-5 shall continue to exercise jurisdiction over the management of the
65-6 estate with the exception of the contested matter until final
65-7 disposition of the contested matter is made by the assigned judge
65-8 or the district court. In contested matters transferred to the
65-9 district court in those counties, the district court, concurrently
65-10 with the county court, shall have the general jurisdiction of a
65-11 probate court. Upon resolution of all pending contested matters,
65-12 the contested portion of the probate proceeding shall be
65-13 transferred by the district court to the county court for further
65-14 proceedings not inconsistent with the orders of the district court.
65-15 If a contested portion of the proceeding is transferred to a
65-16 district court under this subsection, the clerk of the district
65-17 court may perform in relation to the transferred portion of the
65-18 proceeding any function a county clerk may perform in that type of
65-19 contested proceeding.
65-20 (c) In those counties where there is a statutory probate
65-21 court, county court at law, or other statutory court exercising the
65-22 jurisdiction of a probate court, all applications, petitions and
65-23 motions regarding probate, administrations, guardianships, <limited
65-24 guardianships,> and mental illness matters shall be filed and heard
65-25 in such courts and the constitutional county court, rather than in
65-26 the district courts, unless otherwise provided by the legislature,
65-27 and the judges of such courts may hear any of such matters sitting
66-1 for the judge of any of such courts. In contested probate matters,
66-2 the judge of the constitutional county court may on his own motion,
66-3 and shall on the motion of any party to the proceeding, transfer
66-4 the proceeding to the statutory probate court, county court at law,
66-5 or other statutory court exercising the jurisdiction of a probate
66-6 court, which may then hear the proceeding as if originally filed in
66-7 such court.
66-8 SECTION 10. Subsections (a) and (b), Section 131, Texas
66-9 Probate Code, are amended to read as follows:
66-10 (a) Necessity of Appointment. Whenever it appears to the
66-11 county judge that the interest of any minor, incapacitated person
66-12 as defined in Section 108 <130A> of this code, or common or
66-13 habitual drunkard, and his or her estate, or either of them,
66-14 requires immediate appointment of a personal representative, he
66-15 shall, by written order, appoint a suitable temporary
66-16 representative, with such limited powers as the circumstances of
66-17 the case require, and such appointment may be made permanent, as
66-18 herein provided.
66-19 (b) A written application for the appointment of a temporary
66-20 guardian may be filed prior to the court's appointment of such
66-21 guardian but in no case shall such application be filed later than
66-22 the end of the next business day of the court after appointment of
66-23 such temporary guardian. The application shall state:
66-24 (i) the name and address of the subject of the
66-25 guardianship proceeding;
66-26 (ii) the danger to the person or property alleged to
66-27 be imminent;
67-1 (iii) the type of appointment and the particular
67-2 protection and assistance being requested;
67-3 (iv) the facts and reasons supporting the allegations
67-4 and requests;
67-5 (v) the name, address, and qualification of the
67-6 proposed temporary guardian;
67-7 (vi) the name, address, and interest of the applicant;
67-8 <and>
67-9 (vii) the social security numbers of the applicant and
67-10 respondent; and
67-11 (viii) if applicable, that the proposed temporary
67-12 guardian is a private professional guardian who has complied with
67-13 the requirements of Section 126 of this code.
67-14 SECTION 11. Section 185, Texas Probate Code, is amended to
67-15 read as follows:
67-16 Sec. 185. ISSUANCE AND RENEWAL OF LETTERS OF GUARDIANSHIP.
67-17 (a) When a person appointed guardian has qualified as such, by
67-18 taking the oath and giving the bond required by law, if bond be
67-19 required, the clerk shall issue to him a certificate under seal,
67-20 stating the fact of such appointment and qualification and the date
67-21 thereof and the date of expiration, which certificate shall
67-22 constitute letters of guardianship, and be evidence of the
67-23 authority of such person to act as guardian.
67-24 (b) Letters of guardianship expire one year and 90 days
67-25 after the date of issuance unless renewed.
67-26 (c) The clerk shall renew letters of guardianship on the
67-27 receipt and approval by the court of the guardian's annual
68-1 accounting. If the guardian's annual accounting is disapproved,
68-2 the clerk may not issue further letters of guardianship to that
68-3 guardian relating to the ward or the ward's estate unless ordered
68-4 by the court.
68-5 SECTION 12. Subsections (a) and (b), Section 222, Texas
68-6 Probate Code, are amended to read as follows:
68-7 (a) Without Notice. (1) The court, on its own motion or on
68-8 motion of any interested person, and without notice, may remove any
68-9 personal representative, appointed under provisions of this Code,
68-10 who:
68-11 (A) <(1)> Neglects to qualify in the manner and
68-12 time required by law; <or>
68-13 (B) <(2)> Fails to return within ninety days
68-14 after qualification, unless such time is extended by order of the
68-15 court, an inventory of the property of the estate and list of
68-16 claims that have come to his knowledge; <or>
68-17 (C) <(3)> Having been required to give a new
68-18 bond, fails to do so within the time prescribed; <or>
68-19 (D) <(4)> Absents himself from the State for a
68-20 period of three months at one time without permission of the court,
68-21 or removes from the State; <or>
68-22 (E) <(5)> Cannot be served with notices or other
68-23 processes by reason of the fact that his whereabouts are unknown,
68-24 or by reason of the fact that he is eluding service;
68-25 (F) Has misapplied, embezzled, or removed from
68-26 the State, or is about to misapply, embezzle, or remove from the
68-27 State, all or any part of the property committed to the guardian's
69-1 care; or
69-2 (G) Has cruelly treated a ward or has neglected
69-3 to educate or maintain the ward as liberally as the means of the
69-4 ward and the condition of the ward's estate permit.
69-5 (2) The court may remove a personal representative
69-6 under Paragraph (F) or (G), Subdivision (1), of this subsection
69-7 only on the presentation of clear and convincing evidence given
69-8 under oath.
69-9 (b) With Notice. The court may remove a personal
69-10 representative on its own motion, or on the complaint of any
69-11 interested person, after the personal representative has been cited
69-12 by personal service to answer at a time and place fixed in the
69-13 notice, when:
69-14 (1) Sufficient grounds appear to support belief that
69-15 he has misapplied, embezzled, or removed from the state, or that he
69-16 is about to misapply, embezzle, or remove from the state, all or
69-17 any part of the property committed to his care;
69-18 (2) He fails to return any account which is required
69-19 by law to be made;
69-20 (3) He fails to obey any proper order of the court
69-21 having jurisdiction with respect to the performance of his duties;
69-22 (4) He is proved to have been guilty of gross
69-23 misconduct, or mismanagement in the performance of his duties;
69-24 (5) He becomes an incompetent, or is sentenced to the
69-25 penitentiary, or from any other cause becomes incapable of properly
69-26 performing the duties of his trust;
69-27 (6) As executor or administrator, he fails to make a
70-1 final settlement within three years after the grant of letters,
70-2 unless the time be extended by the court upon a showing of
70-3 sufficient cause supported by oath;
70-4 (7) As executor or administrator, he fails to timely
70-5 file the notice required by Section 128A of this code; <or>
70-6 (8) As guardian of the person, he cruelly treats the
70-7 ward, or neglects to educate or maintain the ward as liberally as
70-8 the means of such ward and the condition of his estate permit; or
70-9 (9) He fails to comply with the requirements of
70-10 Section 126 of this code.
70-11 SECTION 13. Part 3, Chapter VII, Texas Probate Code, is
70-12 amended by adding Section 222A to read as follows:
70-13 Sec. 222A. REINSTATEMENT AFTER REMOVAL. (a) Not later than
70-14 the 10th day after the date the court signs the order of removal, a
70-15 personal representative who is removed under Subsection (a)(1)(F)
70-16 or (G), Section 222, of this code may file an application with the
70-17 court for a hearing to determine whether the personal
70-18 representative should be reinstated.
70-19 (b) On the filing of an application for a hearing under this
70-20 section, the court clerk shall issue a notice stating that the
70-21 application for reinstatement was filed, the name of the ward or
70-22 decedent, and the name of the applicant. The clerk shall issue the
70-23 notice to the applicant, the ward, a person interested in the
70-24 welfare of the ward, the decedent's estate, or the ward's estate
70-25 and, if applicable, to a person who has control of the care and
70-26 custody of the ward. The notice must cite all persons interested
70-27 in the estate or welfare of the ward to appear at the time and
71-1 place stated in the notice if they wish to contest the application.
71-2 (c) If, at the conclusion of a hearing under this section,
71-3 the court is satisfied by a preponderance of the evidence that the
71-4 applicant did not engage in the conduct that directly led to the
71-5 applicant's removal, the court shall set aside an order appointing
71-6 a successor representative, if any, and shall enter an order
71-7 reinstating the applicant as personal representative of the ward or
71-8 estate.
71-9 (d) If the court sets aside the appointment of a successor
71-10 representative under this section, the court may require the
71-11 successor representative to prepare and file, under oath, an
71-12 accounting of the estate and to detail the disposition the
71-13 successor has made of the property of the estate.
71-14 SECTION 14. Subsection (b), Section 241, Texas Probate Code,
71-15 is amended to read as follows:
71-16 (b) Compensation of Guardians. The court may authorize
71-17 compensation for a guardian serving as guardian of the person alone
71-18 from available funds of the ward's estate. The court shall set the
71-19 compensation in an amount not exceeding five percent (5%) of the
71-20 ward's income. In determining whether to authorize guardian
71-21 compensation, the court shall consider factors such as total
71-22 monthly income of the ward and whether the ward is a Medicaid
71-23 recipient <A guardian of the person alone is entitled to no
71-24 compensation>. The guardian or the temporary guardian of the
71-25 estate, or of the person and estate, shall not be entitled to, or
71-26 receive, any fee or commission on the estate of the ward when it is
71-27 first delivered to him; but shall be entitled to a fee of five
72-1 percent <per cent> (5%) on the gross income of the ward's estate
72-2 and five percent <per cent> (5%) on all money paid out on a finding
72-3 by the court that the guardian has taken care of and managed the
72-4 estate in compliance with the standards of this code. The term
72-5 "money paid out" shall not be construed to include any money loaned
72-6 or invested or paid over on the settlement of the guardianship. If
72-7 the guardian manages a farm, ranch, factory, or other business of
72-8 his ward, or if the compensation as calculated above is
72-9 unreasonably low, the court may allow him reasonable compensation
72-10 for his services. The court may, on application of an interested
72-11 person or on its own motion, deny a fee allowed by this subsection
72-12 in whole or in part if:
72-13 (1) the court finds that the guardian has not taken
72-14 care of and managed estate property prudently; or
72-15 (2) the guardian has been removed under Section 222 of
72-16 this code.
72-17 SECTION 15. Subsection (c), Section 399, Texas Probate Code,
72-18 is amended to read as follows:
72-19 (c) Guardians of the Person. (1) The guardian of the
72-20 person, when there is a separate guardian of the estate, shall at
72-21 the expiration of twelve (12) months from the date of his
72-22 qualification and receipt of letters, and annually thereafter,
72-23 return to the court his sworn account showing each item of receipts
72-24 and disbursements for the support and maintenance of the ward, his
72-25 education when necessary, and support and maintenance of the ward's
72-26 dependents, when authorized by order of court.
72-27 (2) The guardian of the person, whether or not there
73-1 is a separate guardian of the estate, shall submit to the court an
73-2 annual report by sworn affidavit that contains the following
73-3 information:
73-4 a. the guardian's current name, address, and
73-5 phone number;
73-6 b. the ward's current:
73-7 (i) name, address, and phone number; and
73-8 (ii) age and date of birth;
73-9 c. the type of home in which the ward resides,
73-10 described as the ward's own; a nursing, guardian's, foster, or
73-11 boarding home; a relative's home, and the ward's relationship to
73-12 the relative; a hospital or medical facility; or other type of
73-13 residence;
73-14 d. the length of time the ward has resided in
73-15 the present home and, if there has been a change in the ward's
73-16 residence in the past year, the reason for the change;
73-17 e. the date the guardian most recently saw the
73-18 ward, and how frequently the guardian has seen the ward in the past
73-19 year;
73-20 f. a statement indicating whether or not the
73-21 guardian has possession or control of the ward's estate;
73-22 g. the following statements concerning the
73-23 ward's health during the past year:
73-24 (i) whether the ward's mental health has
73-25 improved, deteriorated, or remained unchanged, and a description if
73-26 there has been a change; and
73-27 (ii) whether the ward's physical health
74-1 has improved, deteriorated, or remained unchanged, and a
74-2 description if there has been a change;
74-3 h. a statement concerning whether or not the
74-4 ward has regular medical care and the ward's treatment or
74-5 evaluation by any of the following persons during the last year,
74-6 including the name of that person and the treatment involved:
74-7 (i) a physician;
74-8 (ii) a psychiatrist, psychologist, or
74-9 other mental health care provider;
74-10 (iii) a dentist;
74-11 (iv) a social or other caseworker; or
74-12 (v) another individual who provided
74-13 treatment;
74-14 i. a description of the ward's activities during
74-15 the past year, including recreational, educational, social, and
74-16 occupational activities or, if no activities are available or if
74-17 the ward is unable or has refused to participate in them, a
74-18 statement to that effect;
74-19 j. the guardian's evaluation of the ward's
74-20 living arrangements as excellent, average, or below average,
74-21 including an explanation if the conditions are below average;
74-22 k. the guardian's evaluation of whether the ward
74-23 is content or unhappy with the ward's living arrangements;
74-24 l. the guardian's evaluation of unmet needs of
74-25 the ward;
74-26 m. a statement of whether or not the guardian's
74-27 power should be increased, decreased, or unaltered, including an
75-1 explanation if a change is recommended; and
75-2 n. any additional information the guardian
75-3 desires to share with the court regarding the ward <All who are
75-4 guardians of the person shall include in their reports facts
75-5 concerning each ward's physical welfare, his well-being, and his
75-6 progress in education, if the latter be pertinent>.
75-7 (3) If the ward is deceased, the guardian shall
75-8 provide the court with the date and place of death, if known, in
75-9 lieu of the information about the ward otherwise required to be
75-10 provided in the annual report.
75-11 (4) Unless the judge is satisfied that the facts
75-12 stated are true, he shall issue such orders as are necessary for
75-13 the best interest of the ward.
75-14 SECTION 16. Sections 7 and 130, Texas Probate Code, are
75-15 repealed.
75-16 SECTION 17. Part 5, Chapter V, Texas Probate Code, is
75-17 repealed.
75-18 SECTION 18. Chapter IX, Texas Probate Code, is repealed.
75-19 SECTION 19. A court may modify any guardianship in effect on
75-20 September 1, 1993, to conform with the requirements of the Texas
75-21 Probate Code, as amended by this Act, on the court's own motion or
75-22 on application by the ward, the guardian, or any other interested
75-23 person or entity.
75-24 SECTION 20. This Act takes effect September 1, 1993.
75-25 SECTION 21. Except as provided by Section 19 of this Act,
75-26 the change in law made by this Act applies only to proceedings for
75-27 the appointment of a guardian instituted on or after the effective
76-1 date of this Act. Proceedings for the appointment of a guardian
76-2 instituted before the effective date of this Act are governed by
76-3 the law in effect when the proceedings were instituted, and the
76-4 former law is continued in effect for that purpose.
76-5 SECTION 22. Notwithstanding Subsection (b), Section 185,
76-6 Texas Probate Code, as added by this Act, a letter of guardianship
76-7 issued before the effective date of this Act expires, unless
76-8 renewed as provided by Subsection (c), Section 185, Texas Probate
76-9 Code, as added by this Act, on the date of the required annual
76-10 accounting immediately following the effective date of this Act.
76-11 SECTION 23. (a) Not later than October 1, 1993, the
76-12 commissioner of health and human services shall appoint an advisory
76-13 committee on development of a uniform assessment tool composed of:
76-14 (1) one representative each from the Texas Department
76-15 of Health, Texas Department of Human Services, and Texas Department
76-16 of Mental Health and Mental Retardation;
76-17 (2) one licensed psychologist who specializes in the
76-18 treatment of persons with mental retardation;
76-19 (3) two members of a private association of persons
76-20 who advocate on the behalf of or in the interest of persons with
76-21 mental retardation or persons with a developmental disability;
76-22 (4) one parent of a person with mental retardation or
76-23 a developmental disability;
76-24 (5) two professionals who work with persons who have a
76-25 developmental disability; and
76-26 (6) two persons who advocate on behalf of or in the
76-27 interest of elderly persons.
77-1 (b) The committee shall designate one member to serve as
77-2 presiding officer.
77-3 (c) The committee shall develop a uniform assessment tool to
77-4 be used by the staff of a facility regulated or operated by the
77-5 Texas Department of Health, Texas Department of Human Services, or
77-6 Texas Department of Mental Health and Mental Retardation to assess
77-7 the capacity of an elderly person, a person with mental
77-8 retardation, or a person with a developmental disability to make
77-9 decisions concerning the person's own welfare and financial
77-10 affairs, including the person's:
77-11 (1) need for a guardianship and the type of
77-12 guardianship that is appropriate for the person;
77-13 (2) ability to care for the person's own physical
77-14 health or to manage the person's own financial affairs;
77-15 (3) ability to provide food, clothing, or shelter for
77-16 himself or herself;
77-17 (4) decision-making ability; and
77-18 (5) ability to communicate a decision.
77-19 (d) Each agency represented on the committee shall provide
77-20 the committee with staff support.
77-21 (e) Members of the committee receive no compensation but are
77-22 entitled to reimbursement for reasonable expenses incurred in
77-23 performing official duties in accordance with the General
77-24 Appropriations Act.
77-25 (f) The committee shall make its recommendations to the
77-26 commissioner of health and human services, Texas Department of
77-27 Human Services, Texas Department of Health, and Texas Department of
78-1 Mental Health and Mental Retardation not later than June 1, 1994.
78-2 SECTION 24. (a) The Texas Department of Health, Texas
78-3 Department of Human Services, and Texas Department of Mental Health
78-4 and Mental Retardation shall adopt the memorandum of understanding
78-5 prescribed by Section 533.044, Health and Safety Code, as added by
78-6 this Act, not later than September 1, 1994.
78-7 (b) In adopting the memorandum of understanding, the Texas
78-8 Department of Health, Texas Department of Human Services, and Texas
78-9 Department of Mental Health and Mental Retardation shall consider
78-10 the recommendations of the committee appointed under Section 23 of
78-11 this Act.
78-12 SECTION 25. A private professional guardian who is serving
78-13 as guardian of a ward on the effective date of this Act shall apply
78-14 for certification under Section 126, Texas Probate Code, as added
78-15 by this Act, not later than October 1, 1993.
78-16 SECTION 26. The change in law made by Section 14 of this Act
78-17 applies only to compensation for guardians appointed on or after
78-18 the effective date of this Act. Compensation for a guardian
78-19 appointed before the effective date of this Act is covered by the
78-20 law in effect when the guardian was appointed, and the former law
78-21 is continued in effect for that purpose.
78-22 SECTION 27. The change in law made by Section 15 of this Act
78-23 applies only to reports submitted to the court on or after January
78-24 1, 1994. A report submitted before the effective date of this Act
78-25 is covered by the law in effect at the time the report is
78-26 submitted, and the former law is continued in effect for that
78-27 purpose.
79-1 SECTION 28. The change in law made by Section 18 of this Act
79-2 applies only to the appointment of a guardian based on information
79-3 that is filed under Section 415, Texas Probate Code, on or after
79-4 the effective date of this Act. An appointment of a guardian based
79-5 on information that is filed before the effective date of this Act
79-6 is governed by the law in effect on the date the information was
79-7 filed, and the former law is continued in effect for that purpose.
79-8 SECTION 29. The importance of this legislation and the
79-9 crowded condition of the calendars in both houses create an
79-10 emergency and an imperative public necessity that the
79-11 constitutional rule requiring bills to be read on three several
79-12 days in each house be suspended, and this rule is hereby suspended.