By: Moncrief S.B. No. 236
73R2199 CLG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to guardianships for incapacitated persons; providing a
1-3 penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter A, Chapter 22, Government Code, is
1-6 amended by adding Section 22.013 to read as follows:
1-7 Sec. 22.013. JUDICIAL INSTRUCTION RELATED TO GUARDIANSHIP
1-8 ISSUES. (a) The supreme court shall provide a course of
1-9 instruction that relates to issues that arise in guardianship cases
1-10 for judges involved in those cases.
1-11 (b) The supreme court shall adopt the rules necessary to
1-12 accomplish the purposes of this section.
1-13 (c) The instruction must include information about:
1-14 (1) statutory and case law relating to guardianships;
1-15 (2) the aging process and the nature of disabilities;
1-16 (3) the requirements of the Americans with
1-17 Disabilities Act (42 U.S.C. Section 12101 et seq.) and related
1-18 case and statutory law, rules, and compliance methods;
1-19 (4) the principles of equal access and accommodation;
1-20 (5) the use of community resources for the disabled;
1-21 and
1-22 (6) avoidance of stereotypes through a focus on
1-23 people's individual abilities, support needs, and inherent
1-24 individual value.
2-1 (d) The instruction may include information about:
2-2 (1) substantive areas of law concerning the needs of
2-3 elderly persons and persons with disabilities;
2-4 (2) barriers to physical access and methods to
2-5 overcome those barriers;
2-6 (3) communication needs of elderly persons and persons
2-7 with disabilities and the technology available to provide access to
2-8 communication;
2-9 (4) duties and responsibilities of guardians,
2-10 guardians ad litem, attorneys, and court personnel in guardianship
2-11 proceedings;
2-12 (5) standard definitions and procedures for
2-13 determining incapacity;
2-14 (6) standards for surrogate decision-making;
2-15 (7) the doctrine of the least-restrictive alternative;
2-16 (8) the dispute resolution process, especially its
2-17 application to elderly persons and persons with disabilities; and
2-18 (9) successful programs and funding efforts for
2-19 addressing the court-related needs of elderly persons and persons
2-20 with disabilities.
2-21 SECTION 2. Subchapter B, Chapter 25, Government Code, is
2-22 amended by adding Section 25.0025 to read as follows:
2-23 Sec. 25.0025. COURT INVESTIGATORS. (a) The judge of a
2-24 statutory probate court shall employ one or more court
2-25 investigators.
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) A court investigator shall:
3-7 (1) supervise the court visitor program established
3-8 under Section 127, Texas Probate Code;
3-9 (2) investigate a complaint received from any person
3-10 about a guardianship and report to the judge, if necessary; and
3-11 (3) perform other duties as assigned by the judge.
3-12 (e) After making an investigation under Subsection (c) or
3-13 (d), a court investigator shall file with the court a report of the
3-14 court investigator's findings and conclusions. Disclosure to a
3-15 jury of the contents of a court investigator's report is subject to
3-16 the Texas Rules of Civil Evidence. In a contested case, the court
3-17 investigator shall provide copies of the report to the attorneys
3-18 for the parties before the earlier of:
3-19 (1) the seventh day after the day the report is
3-20 completed; or
3-21 (2) the sixth day before the day the trial is
3-22 scheduled to begin.
3-23 SECTION 3. Subchapter C, Chapter 72, Government Code, is
3-24 amended by adding Section 72.028 to read as follows:
3-25 Sec. 72.028. OVERSIGHT OF COURT VISITOR PROGRAMS OF AND
3-26 COURT INVESTIGATORS EMPLOYED BY STATUTORY PROBATE COURTS. (a) The
3-27 office shall develop methods to oversee each statutory probate
4-1 court's:
4-2 (1) establishment and maintenance of a court visitor
4-3 program as provided by Section 127, Texas Probate Code; and
4-4 (2) employment of a court investigator as provided by
4-5 Section 25.0025.
4-6 (b) The director shall notify the State Commission on
4-7 Judicial Conduct in writing if the office determines that a judge
4-8 of a statutory probate court has failed to:
4-9 (1) establish and maintain a court visitor program; or
4-10 (2) employ a court investigator.
4-11 SECTION 4. Subchapter H, Chapter 81, Government Code, is
4-12 amended by adding Section 81.114 to read as follows:
4-13 Sec. 81.114. ATTORNEY INSTRUCTION RELATED TO GUARDIANSHIP
4-14 ISSUES. (a) The state bar shall provide a course of instruction
4-15 for attorneys who represent parties in guardianship cases or who
4-16 serve as court-appointed guardians.
4-17 (b) The state bar shall adopt the rules necessary to
4-18 accomplish the purposes of this section.
4-19 (c) The instruction must include information about:
4-20 (1) statutory and case law relating to guardianships;
4-21 (2) the aging process and the nature of disabilities;
4-22 (3) the requirements of the Americans with
4-23 Disabilities Act (42 U.S.C. Section 12101 et seq.) and related
4-24 case and statutory law, rules, and compliance methods;
4-25 (4) the principles of equal access and accommodation;
4-26 (5) the use of community resources for the disabled;
4-27 and
5-1 (6) avoidance of stereotypes through a focus on
5-2 people's individual abilities, support needs, and inherent
5-3 individual value.
5-4 (d) The instruction may include information about:
5-5 (1) substantive areas of law concerning the needs of
5-6 elderly persons and persons with disabilities;
5-7 (2) barriers to physical access and methods to
5-8 overcome those barriers;
5-9 (3) communication needs of elderly persons and persons
5-10 with disabilities and the technology available to provide access to
5-11 communication;
5-12 (4) duties and responsibilities of guardians,
5-13 guardians ad litem, attorneys, and court personnel in guardianship
5-14 proceedings;
5-15 (5) standard definitions and procedures for
5-16 determining incapacity;
5-17 (6) standards for surrogate decision-making;
5-18 (7) the doctrine of the least-restrictive alternative;
5-19 (8) the dispute resolution process, especially its
5-20 application to elderly persons and persons with disabilities; and
5-21 (9) successful programs and funding efforts for
5-22 addressing the court-related needs of elderly persons and persons
5-23 with disabilities.
5-24 SECTION 5. Subchapter B, Chapter 533, Health and Safety
5-25 Code, is amended by adding Section 533.044 to read as follows:
5-26 Sec. 533.044. MEMORANDUM OF UNDERSTANDING ON ASSESSMENT
5-27 TOOLS. (a) The department, Texas Department of Health, and Texas
6-1 Department of Human Services by rule shall adopt a joint memorandum
6-2 of understanding that requires the use of a uniform assessment tool
6-3 to assess whether an elderly person, a person with mental
6-4 retardation, a person with a developmental disability, or a person
6-5 who is suspected of being a person with mental retardation or a
6-6 developmental disability and who is receiving services in a
6-7 facility regulated or operated by the department, Texas Department
6-8 of Health, or Texas Department of Human Services needs a guardian
6-9 of the person or estate, or both.
6-10 (b) The memorandum must prescribe:
6-11 (1) the facilities that must use the assessment; and
6-12 (2) the circumstances in which the facilities must use
6-13 the assessment.
6-14 (c) Each agency shall review and modify the memorandum as
6-15 necessary not later than the last month of each state fiscal year.
6-16 SECTION 6. Section 48.021, Human Resources Code, is amended
6-17 by adding Subsection (e) to read as follows:
6-18 (e) The department shall file an application under Section
6-19 110A or 131(b) of the Texas Probate Code to be appointed guardian
6-20 of the person and estate of an individual who is a minor, is a
6-21 conservatee of the department, and, because of a physical or mental
6-22 condition, will be substantially unable to provide food, clothing,
6-23 or shelter for himself or herself, to care for the individual's own
6-24 physical health, or to manage the individual's own financial
6-25 affairs when the individual becomes an adult.
6-26 SECTION 7. Section 3, Texas Probate Code, is amended by
6-27 adding Subdivision (mm) to read as follows:
7-1 (mm) "Private professional guardian" means a person
7-2 who is engaged in the business of providing guardianship services.
7-3 SECTION 8. Part 3, Chapter V, Texas Probate Code, is amended
7-4 to read as follows:
7-5 PART 3. PERMANENT GUARDIANSHIP PROCEEDINGS
7-6 SUBPART A. GENERAL PROVISIONS
7-7 Sec. 108. DEFINITIONS. In this part:
7-8 (1) "Incapacitated person" means:
7-9 (A) a minor;
7-10 (B) an adult individual who, because of a
7-11 physical or mental condition, is substantially unable to provide
7-12 food, clothing, or shelter for himself or herself, to care for the
7-13 individual's own physical health, or to manage the individual's own
7-14 financial affairs;
7-15 (C) a missing person; or
7-16 (D) a person who must have a guardian appointed
7-17 to receive funds due the person from any governmental source.
7-18 (2) "Missing person" means a person reported by an
7-19 executive department of the United States to be a prisoner of war
7-20 or missing in the course of public service to the United States.
7-21 (3) "Proposed ward" means a person alleged to be
7-22 incapacitated in a guardianship proceeding.
7-23 Sec. 108A. POLICY; PURPOSE OF GUARDIANSHIP. A court may
7-24 appoint a guardian only to the extent required by an incapacitated
7-25 person's actual mental or physical limitations and only as
7-26 necessary to promote and protect the well-being of the person. If
7-27 the person is not a minor, the court may not use age as the sole
8-1 factor in determining whether to appoint a guardian for the person.
8-2 The court shall design the guardianship to encourage the
8-3 development or maintenance of maximum self-reliance and
8-4 independence in the incapacitated person.
8-5 Sec. 108B. LAWS APPLICABLE TO GUARDIANSHIPS. (a) To the
8-6 extent applicable and not inconsistent with other provisions of
8-7 this code, the laws and rules governing estates of decedents apply
8-8 to and govern guardianships.
8-9 (b) A reference in other sections of this code or in other
8-10 law to a person who is mentally, physically, or legally
8-11 incompetent, a person who is judicially declared incompetent, an
8-12 incompetent or an incompetent person, a person of unsound mind, or
8-13 a habitual drunkard means an incapacitated person.
8-14 SUBPART B. APPLICATION AND HEARING
8-15 TO APPOINT GUARDIAN
8-16 Sec. 109. JURISDICTION. A court exercising original probate
8-17 jurisdiction may appoint a guardian under this part for the person
8-18 or estate, or both, of an incapacitated person.
8-19 Sec. 109A. VENUE. (a) Except as otherwise authorized by
8-20 this section, a proceeding for the appointment of a guardian for
8-21 the person or estate, or both, of an incapacitated person shall be
8-22 brought in the county in which the proposed ward resides or is
8-23 located on the date the application is filed or in the county in
8-24 which the principal estate of the proposed ward is located.
8-25 (b) A proceeding for the appointment of a guardian for the
8-26 person or estate, or both, of a minor may be brought:
8-27 (1) in the county in which both the minor's parents
9-1 reside;
9-2 (2) if the parents do not reside in the same county,
9-3 in the county in which the parent who is the sole managing
9-4 conservator of the minor resides, or in the county in which the
9-5 parent who is the joint managing conservator with the greater
9-6 period of physical possession of and access to the minor resides;
9-7 (3) if only one parent is living and the parent has
9-8 custody of the minor, in the county in which that parent resides;
9-9 (4) if both parents are dead but the minor was in the
9-10 custody of a deceased parent, in the county in which the last
9-11 surviving parent having custody resided; or
9-12 (5) if both parents of a minor child have died in a
9-13 common disaster and there is no evidence that the parents died
9-14 other than simultaneously, in the county in which both deceased
9-15 parents resided at the time of their simultaneous deaths if they
9-16 resided in the same county.
9-17 (c) A proceeding for the appointment of a guardian who was
9-18 appointed by will may be brought in the county in which the will
9-19 was admitted to probate or in the county of the appointee's
9-20 residence if the appointee resides in this state.
9-21 (d) A proceeding for the appointment of a guardian for the
9-22 estate of a missing person may be brought:
9-23 (1) in the county in which the missing person's spouse
9-24 resides;
9-25 (2) if there is no spouse, in the county in which a
9-26 parent or child of the missing person resides; or
9-27 (3) if there is no spouse, parent, or child, in the
10-1 county in which the missing person's next of kin resides.
10-2 (e) A court may transfer a guardianship proceeding to any
10-3 court having venue in the same manner as provided for transfer of
10-4 probate proceedings in Section 8 of this code.
10-5 Sec. 110. STANDING TO COMMENCE OR CONTEST PROCEEDING. Any
10-6 person has the right to commence any guardianship proceeding or to
10-7 appear and contest any guardianship proceeding or the appointment
10-8 of a particular person as guardian.
10-9 Sec. 110A. APPLICATION; CONTENTS. Any person may commence a
10-10 proceeding for the appointment of a guardian by filing a written
10-11 application in a court having jurisdiction and venue. The
10-12 application must be sworn to by the applicant and state:
10-13 (1) the name, sex, date of birth, and address of the
10-14 proposed ward;
10-15 (2) the name, relationship, and address of the person
10-16 the applicant desires to have appointed as guardian;
10-17 (3) the social security number of the proposed ward
10-18 and of the person the applicant desires to have appointed as
10-19 guardian;
10-20 (4) whether guardianship of the person or estate, or
10-21 both, is sought;
10-22 (5) the nature and degree of the alleged incapacity,
10-23 the specific areas of protection and assistance requested, and the
10-24 limitation of rights requested to be included in the court's order
10-25 of appointment;
10-26 (6) the facts requiring that a guardian be appointed
10-27 and the interest of the applicant in the appointment;
11-1 (7) the nature and description of any guardianship of
11-2 any kind existing for the proposed ward in this or any other state;
11-3 (8) the name and address of any person or institution
11-4 having the care and custody of the proposed ward;
11-5 (9) the approximate value and description of the
11-6 proposed ward's property, including any compensation, pension,
11-7 insurance, or allowance to which the proposed ward may be entitled;
11-8 (10) the requested term, if known, of the
11-9 guardianship;
11-10 (11) the name and address of any person whom the
11-11 applicant knows to hold a power of attorney signed by the proposed
11-12 ward and a description of the type of power of attorney;
11-13 (12) if the proposed ward is a minor, the names of the
11-14 parents and next of kin of the proposed ward and whether either or
11-15 both of the parents are deceased;
11-16 (13) if the proposed ward is a minor, whether the
11-17 minor was the subject of a legal or conservatorship proceeding
11-18 within the preceding two-year period and, if so, the court
11-19 involved, the nature of the proceeding, and the final disposition,
11-20 if any, of the proceeding;
11-21 (14) if the proposed ward is 60 years of age or older,
11-22 the names and addresses, to the best of the applicant's knowledge,
11-23 of the proposed ward's spouse, siblings, and children, or, if there
11-24 is no spouse, sibling, or child, the names and addresses of the
11-25 proposed ward's next of kin;
11-26 (15) if the proposed ward is a missing person:
11-27 (A) the last known residence of the missing
12-1 person;
12-2 (B) the name of the executive department of the
12-3 United States reporting the proposed ward as a missing person, the
12-4 date of the report, and the last known whereabouts of the missing
12-5 person; and
12-6 (C) the names and addresses of the missing
12-7 person's spouse, children, and parents, or, if there is no spouse,
12-8 child, or parent, the names and addresses of the missing person's
12-9 next of kin;
12-10 (16) facts showing that the court has venue over the
12-11 proceeding; and
12-12 (17) if applicable, that the person whom the applicant
12-13 desires to have appointed as a guardian is a private professional
12-14 guardian who has complied with the requirements of Section 126 of
12-15 this code.
12-16 Sec. 110B. COURT'S INITIATION OF GUARDIANSHIP PROCEEDINGS.
12-17 If a court has probable cause to believe that a person domiciled or
12-18 found in the county in which the court is located is an
12-19 incapacitated person, and the person does not have a guardian in
12-20 this state, the court shall appoint an attorney ad litem to
12-21 investigate and file an application for the appointment of a
12-22 guardian of the person or estate, or both, of the person believed
12-23 to be incapacitated.
12-24 Sec. 110C. APPOINTMENT OF ATTORNEY AD LITEM AND INTERPRETER.
12-25 (a) In a proceeding under this chapter for the appointment of a
12-26 guardian for a person other than a missing person, the court shall
12-27 appoint an attorney ad litem to represent the interests of the
13-1 proposed ward. The attorney shall be supplied with copies of all
13-2 of the current records in the case and may have access to all of
13-3 the proposed ward's relevant medical, psychological, and
13-4 intellectual testing records.
13-5 (b) To be eligible for appointment as an attorney ad litem,
13-6 a person must be certified by the State Bar of Texas as having
13-7 successfully completed a course of study in guardianship law and
13-8 procedure sponsored by the state bar.
13-9 (c) For certification under Subsection (b) of this section,
13-10 the state bar may not require more than eight hours of credit.
13-11 (d) A certificate issued under Subsection (b) of this
13-12 section expires on the second anniversary of the date the
13-13 certificate was issued. A person whose certificate has expired
13-14 must obtain a new certificate to be eligible for appointment as an
13-15 attorney ad litem. The applicant is not required to again complete
13-16 the course of study required by Subsection (b) of this section
13-17 unless the state bar determines that the course has changed
13-18 substantially since the person last completed the course.
13-19 (e) Subsections (b)-(d) of this section do not apply to a
13-20 person who served as attorney ad litem in a guardianship proceeding
13-21 before September 1, 1993.
13-22 (f) At the time of the appointment of the attorney ad litem,
13-23 the court shall also appoint a language interpreter or a sign
13-24 interpreter if necessary to ensure effective communication between
13-25 the proposed ward and the attorney.
13-26 Sec. 110D. DUTIES OF ATTORNEY AD LITEM. (a) An attorney ad
13-27 litem appointed under Section 110C of this code to represent a
14-1 proposed ward shall, within a reasonable time before the hearing,
14-2 interview the proposed ward. To the greatest extent possible, the
14-3 attorney shall discuss with the proposed ward the law and facts of
14-4 the case, the proposed ward's legal options regarding disposition
14-5 of the case, and the grounds on which guardianship is sought.
14-6 (b) Before the hearing, the attorney shall review the
14-7 application for guardianship, certificates of current physical,
14-8 medical, and intellectual examinations, and all of the proposed
14-9 ward's relevant medical, psychological, and intellectual testing
14-10 records. The attorney shall also interview supporting witnesses
14-11 and other witnesses who will testify at the hearing.
14-12 Sec. 111. NOTICE AND CITATION. (a) On the filing of an
14-13 application for guardianship, notice shall be issued and served as
14-14 provided in this section.
14-15 (b) The court clerk shall issue a notice stating that the
14-16 application for guardianship was filed, the name of the proposed
14-17 ward, and the name of the applicant. The notice must cite all
14-18 persons interested in the welfare of the proposed ward to appear at
14-19 the time and place stated in the notice if they wish to contest the
14-20 application.
14-21 (c) A copy of the notice shall be posted, and the sheriff or
14-22 other officer posting the notice shall return the original notice,
14-23 officially signed and marked in writing with the time and place of
14-24 posting.
14-25 (d) The sheriff or other officer posting the notice shall
14-26 personally serve a copy of the notice, with citation to appear and
14-27 answer the application for guardianship, to:
15-1 (1) the proposed ward, unless the proposed ward is a
15-2 missing person, or a parent with whom the minor resides if the
15-3 proposed ward is a minor who is 14 years of age or younger;
15-4 (2) the proposed ward's parents; and
15-5 (3) any conservator or person having control of the
15-6 care and welfare of the proposed ward.
15-7 (e) The court clerk, at the applicant's request, or the
15-8 applicant shall mail a copy of the notice by registered or
15-9 certified mail, return receipt requested, to the following persons
15-10 if their whereabouts are known or can be reasonably ascertained:
15-11 (1) if the proposed ward is a person 60 years of age
15-12 or older, to the spouse, all siblings, and all children of a
15-13 proposed ward;
15-14 (2) all other persons related within the first degree
15-15 by consanguinity or affinity to the proposed ward;
15-16 (3) any person living with the proposed ward in a
15-17 private residence;
15-18 (4) the administrator of a nursing home facility or
15-19 similar facility in which the proposed ward resides; and
15-20 (5) a person whom the applicant knows to hold a power
15-21 of attorney signed by the proposed ward.
15-22 (f) A person other than the proposed ward who is entitled to
15-23 receive notice or personal service of citation under Subsections
15-24 (d) and (e) of this section may, in person or by attorney ad litem,
15-25 by writing filed with the clerk, waive the receipt of notice or the
15-26 issuance and personal service of citation.
15-27 (g) The court may not act on an application for the creation
16-1 of a guardianship until the Monday following the expiration of the
16-2 10-day period beginning the date service of notice and citation has
16-3 been made as provided by this section.
16-4 Sec. 112. USE OF RECORDS IN GUARDIANSHIP PROCEEDINGS. (a)
16-5 Before a hearing may be held for the appointment of a guardian,
16-6 current and relevant medical, psychological, and intellectual
16-7 testing records of the proposed ward must be filed with the court
16-8 unless:
16-9 (1) the proposed ward is a minor, a missing person, or
16-10 a person who must have a guardian appointed to receive funds due
16-11 the person from any governmental source; or
16-12 (2) the court makes a finding on the record that no
16-13 current or relevant records exist and examining the proposed ward
16-14 for the purpose of creating the records is impractical.
16-15 (b) Current medical, psychological, and intellectual testing
16-16 records are a sufficient basis for a determination of guardianship.
16-17 (c) Medical, psychological, and intellectual testing records
16-18 filed with the application must be based on examinations conducted
16-19 during the 90-day period before the date the application is filed.
16-20 (d) The findings and recommendations contained in the
16-21 medical, psychological, and intellectual testing records are not
16-22 binding on the court.
16-23 Sec. 112A. EXAMINATIONS AND REPORTS. (a) If the medical,
16-24 psychological, and intellectual testing records of the proposed
16-25 ward are not filed with the application for guardianship, the court
16-26 shall appoint the necessary physicians and mental health
16-27 professionals to examine the person and file all necessary reports
17-1 with the court.
17-2 (b) A physician appointed by the court shall file with the
17-3 court a report that:
17-4 (1) describes the nature and degree of incapacity,
17-5 including the medical history if reasonably available;
17-6 (2) provides a medical prognosis specifying the
17-7 estimated severity of the incapacity;
17-8 (3) states how or in what manner the proposed ward's
17-9 ability to make or communicate responsible decisions concerning
17-10 himself or herself is affected by the person's physical or mental
17-11 health;
17-12 (4) states whether any current medication affects the
17-13 demeanor of the proposed ward or the proposed ward's ability to
17-14 participate fully in a court proceeding;
17-15 (5) describes the precise physical and mental
17-16 conditions underlying a diagnosis of senility, if applicable; and
17-17 (6) includes any other information required by the
17-18 court.
17-19 (c) If the basis of the proposed ward's alleged incapacity
17-20 is mental retardation, the proposed ward shall be examined at a
17-21 facility approved by the Texas Department of Mental Health and
17-22 Mental Retardation to perform the examination, unless there is
17-23 written documentation filed with the court that shows the proposed
17-24 ward has been examined according to the rules adopted by the
17-25 department at an approved facility not earlier than six months
17-26 before the date of a hearing to appoint a guardian for the proposed
17-27 ward. The facility personnel shall conduct the examination
18-1 according to the rules adopted by the department and shall submit
18-2 written findings and recommendations to the court.
18-3 Sec. 112B. PAYMENT FOR PROFESSIONAL SERVICES. The court
18-4 shall order the payment of a fee set by the court as compensation
18-5 to the attorneys, mental health professionals, and interpreters
18-6 appointed under this subpart to be taxed as costs in the case. If
18-7 after examining the proposed ward's assets the court determines the
18-8 proposed ward is unable to pay for services provided by an
18-9 attorney, a mental health professional, or an interpreter appointed
18-10 under this subpart, the county is responsible for the cost of those
18-11 services.
18-12 Sec. 113. HEARING; RIGHT TO JURY TRIAL. (a) A proposed
18-13 ward other than a missing person must be present at a hearing to
18-14 appoint a guardian unless the court, on the record, determines that
18-15 a personal appearance is not in the person's best interests. The
18-16 court may close the hearing if the proposed ward or the proposed
18-17 ward's counsel requests a closed hearing.
18-18 (b) The proposed ward is entitled, on request, to a jury
18-19 trial.
18-20 (c) At the hearing, the court shall:
18-21 (1) inquire into the ability of any allegedly
18-22 incapacitated adult person to feed, clothe, and shelter himself or
18-23 herself, to care for the individual's own physical health, and to
18-24 manage the individual's property or financial affairs;
18-25 (2) ascertain the age of any proposed ward who is a
18-26 minor;
18-27 (3) inquire into the governmental reports for any
19-1 missing person or person who must have a guardian appointed to
19-2 receive funds due the person from any governmental source; and
19-3 (4) inquire into the qualifications, abilities, and
19-4 capabilities of the person seeking to be appointed guardian.
19-5 Sec. 113A. FINDINGS REQUIRED. (a) Before appointing a
19-6 guardian, the court must find that:
19-7 (1) the proposed ward is an incapacitated person;
19-8 (2) the court has venue of the case;
19-9 (3) the person to be appointed guardian is eligible to
19-10 act as guardian and is entitled to appointment, or, if no eligible
19-11 person entitled to appointment applies, the person appointed is a
19-12 proper person to act as guardian;
19-13 (4) the rights of persons or property will be
19-14 protected by the appointment of a guardian;
19-15 (5) if a guardian is appointed for a minor, the
19-16 guardianship is not created for the primary purpose of enabling the
19-17 minor to establish residency for enrollment in a school or school
19-18 district for which the minor is not otherwise eligible for
19-19 enrollment; and
19-20 (6) if the guardian is appointed for a missing person,
19-21 the person was reported missing by an executive department of the
19-22 United States at least six months earlier than the date of the
19-23 filing of the application and currently is missing.
19-24 (b) The court may not grant an application to create a
19-25 guardianship unless the applicant proves each element required by
19-26 this code. A determination of incapacity of an adult proposed
19-27 ward, other than a missing person or a person who must have a
20-1 guardian appointed to receive funds due the person from any
20-2 governmental source, must be evidenced by recurring acts or
20-3 occurrences within the preceding six-month period and not by
20-4 isolated instances of negligence or bad judgment.
20-5 (c) A court may not appoint a guardian of the estate of a
20-6 minor when a payment of claims is made under Section 144 of this
20-7 code.
20-8 (d) A certificate of the executive head or a representative
20-9 of the bureau, department, or agency of the government, to the
20-10 effect that the appointment of a guardian is a condition precedent
20-11 to the payment of any funds due the proposed ward from that
20-12 governmental entity, is prima facie evidence of the necessity for
20-13 the appointment of a guardian.
20-14 Sec. 113B. ORDER OF COURT. (a) If it is found that an
20-15 adult person possesses the capacity to care for himself or herself
20-16 and to manage the individual's property as would a reasonably
20-17 prudent person, the court shall dismiss the application for
20-18 guardianship.
20-19 (b) If it is found that the proposed ward is totally without
20-20 capacity as provided by this code to care for himself or herself
20-21 and to manage the individual's property, the court shall include
20-22 that determination as a finding of fact in its final order in the
20-23 proceeding, and the court may appoint a guardian of the
20-24 individual's person or estate, or both, with full authority over
20-25 the incapacitated person except as provided by law.
20-26 (c) If it is found that the person lacks the capacity to do
20-27 some, but not all, of the tasks necessary to care for himself or
21-1 herself or to manage the individual's property, the court may
21-2 appoint a guardian with limited powers and permit the individual to
21-3 care for himself or herself or to manage the individual's property
21-4 commensurate with the individual's ability.
21-5 (d) An order appointing a guardian must contain findings of
21-6 fact and specify:
21-7 (1) the information required by Section 184 of this
21-8 code;
21-9 (2) the properties of the person that the guardian is
21-10 entitled to possess and manage, with a description of the
21-11 properties sufficient to identify them;
21-12 (3) the debts, rentals, wages, or other claims due the
21-13 person that the guardian is entitled to collect, or file suit to
21-14 collect, and after collection to possess and manage;
21-15 (4) the contractual or other obligations that the
21-16 guardian may incur on behalf of the person;
21-17 (5) the claims against the person that the guardian
21-18 may pay, compromise, or defend, if necessary;
21-19 (6) the specific powers, limitations, or duties of the
21-20 guardian with respect to the care of the person or the management
21-21 of the person's property by the guardian; and
21-22 (7) if necessary, the amount of funds from the corpus
21-23 of the person's estate the court will allow the guardian to expend
21-24 for the education and maintenance of the person under Section 236
21-25 of this code.
21-26 (e) An order appointing a guardian may not duplicate or
21-27 conflict with the powers and duties of any other guardian.
22-1 Sec. 114. NONRESIDENT AS WARD. Guardianship of the estate
22-2 of a nonresident incapacitated person who owns property in this
22-3 state may be granted, if necessary, in the same manner as for the
22-4 property of a resident of this state. A court in the county in
22-5 which the principal estate of the ward is located has jurisdiction
22-6 to appoint a guardian. The court shall take all actions and make
22-7 all necessary orders with respect to the estate of the ward for the
22-8 maintenance, support, care, or education of the ward, out of the
22-9 proceeds of the ward's estate, in the same manner as if the ward
22-10 were a resident of this state and was sent abroad by the court for
22-11 education or treatment. If a qualified nonresident guardian of the
22-12 estate later qualifies in this state under Section 118 of this
22-13 code, the court shall close the resident guardianship.
22-14 SUBPART C. SELECTION OF GUARDIAN
22-15 Sec. 115. PERSONS INELIGIBLE TO BE GUARDIANS. A person may
22-16 not be appointed guardian if the person is:
22-17 (1) a minor;
22-18 (2) a person whose conduct is notoriously bad;
22-19 (3) an incapacitated person;
22-20 (4) a person who is a party or whose parent is a party
22-21 to a lawsuit concerning or affecting the welfare of the proposed
22-22 ward;
22-23 (5) a person indebted to the proposed ward unless the
22-24 person pays the debt before appointment;
22-25 (6) a person asserting a claim adverse to the proposed
22-26 ward or the proposed ward's property, real or personal;
22-27 (7) a person who, because of inexperience, lack of
23-1 education, or other good reason, is incapable of properly and
23-2 prudently managing and controlling the ward or the ward's estate;
23-3 (8) a person, institution, or corporation found
23-4 unsuitable by the court; or
23-5 (9) a person disqualified in a declaration made under
23-6 Section 117B of this code.
23-7 Sec. 115A. PREFERENCE OF WARD. Before appointing a
23-8 guardian, the court shall make a reasonable effort to question the
23-9 incapacitated person concerning the person's preference of the
23-10 person to be appointed guardian and, to the extent not inconsistent
23-11 with other provisions of this code, shall give due consideration to
23-12 the preference indicated by the incapacitated person.
23-13 Sec. 116. SELECTION OF GUARDIAN BY MINOR. (a) When an
23-14 application is filed for the guardianship of the person or estate,
23-15 or both, of a minor at least 14 years of age, the minor, subject to
23-16 the court's approval, may choose the guardian by writing filed with
23-17 the clerk.
23-18 (b) A minor at least 14 years of age may select another
23-19 guardian of either the minor's person or estate, or both, if the
23-20 minor has a guardian appointed by the court or the minor has a
23-21 guardian appointed by will or written declaration of the parent of
23-22 the minor and that guardian dies, resigns, or is removed from
23-23 guardianship. If the court is satisfied that the person selected
23-24 is suitable and competent, it shall make the appointment and revoke
23-25 the letters of guardianship of the former guardian. The minor
23-26 shall make the selection by filing an application in open court in
23-27 person or by attorney.
24-1 Sec. 116A. GUARDIANS OF MINORS. (a) Except as provided by
24-2 Section 116 of this code, the selection of a guardian for a minor
24-3 is governed by this section.
24-4 (b) If the parents live together, both parents are the
24-5 natural guardians of the person of the minor children by the
24-6 marriage, and one of the parents is entitled to be appointed
24-7 guardian of the children's estates. If the parents disagree as to
24-8 which parent should be appointed, the court shall make the
24-9 appointment on the basis of which parent is better qualified to
24-10 serve in that capacity. If one parent is dead, the survivor is the
24-11 natural guardian of the person of the minor children and is
24-12 entitled to be appointed guardian of their estates. The rights of
24-13 parents who do not live together are equal, and the guardianship of
24-14 their minor children shall be assigned to one or the other,
24-15 considering only the best interests of the children.
24-16 (c) In appointing a guardian for a minor orphan:
24-17 (1) if the last surviving parent did not appoint a
24-18 guardian, the nearest ascendant in the direct line of the minor is
24-19 entitled to guardianship of both the person and the estate of the
24-20 minor;
24-21 (2) if more than one ascendant exists in the same
24-22 degree in the direct line, one ascendant shall be appointed,
24-23 according to circumstances and considering the best interests of
24-24 the minor;
24-25 (3) if the minor has no ascendant in the direct line,
24-26 the nearest of kin shall be appointed, and if there are two or more
24-27 persons in the same degree of kinship, one shall be appointed,
25-1 according to circumstances and considering the best interests of
25-2 the minor; and
25-3 (4) if no relative of the minor is eligible to be
25-4 guardian, or if no eligible person applies to be guardian, the
25-5 court shall appoint a qualified person as guardian.
25-6 (d) The surviving parent of a minor may by will or written
25-7 declaration appoint any eligible person to be guardian of the
25-8 person of the parent's minor children after the death of the
25-9 parent. On compliance with this code, an eligible person is also
25-10 entitled to be appointed guardian of the children's estates after
25-11 the death of the parent.
25-12 Sec. 117. GUARDIANS OF PERSONS OTHER THAN MINORS. The court
25-13 shall appoint a guardian for a person other than a minor according
25-14 to the circumstances and considering the best interests of the
25-15 ward. If the court finds that two or more eligible persons are
25-16 equally entitled to be appointed guardian:
25-17 (1) the ward's spouse is entitled to the guardianship
25-18 in preference to any other person if the spouse is one of the
25-19 eligible persons;
25-20 (2) the eligible person nearest of kin to the ward is
25-21 entitled to the guardianship if the ward's spouse is not one of the
25-22 eligible persons; or
25-23 (3) the court shall appoint the eligible person who is
25-24 best qualified to serve as guardian if:
25-25 (A) the persons entitled to serve under
25-26 Subdivisions (1) and (2) of this section refuse to serve;
25-27 (B) two or more persons entitled to serve under
26-1 Subdivision (2) of this section are related in the same degree of
26-2 kinship to the ward; or
26-3 (C) neither the ward's spouse or any person
26-4 related to the ward is an eligible person.
26-5 Sec. 117A. PRESUMPTION CONCERNING BEST INTEREST. It is
26-6 presumed not to be in the best interests of a ward to appoint a
26-7 person as guardian of the ward if the person has been finally
26-8 convicted of any sexual offense, sexual assault, aggravated
26-9 assault, aggravated sexual assault, injury to a child, abandoning
26-10 or endangering a child, or incest.
26-11 Sec. 117B. DESIGNATION OF GUARDIAN BEFORE NEED ARISES. (a)
26-12 A person other than an incapacitated person may designate by a
26-13 written declaration persons to serve as guardian of the person of
26-14 the declarant or the estate of the declarant if the declarant
26-15 becomes incapacitated. The declaration must be attested to by at
26-16 least two credible witnesses 14 years of age or older who are not
26-17 named as guardian or alternate guardian in the declaration.
26-18 (b) A declarant may, in the declaration, disqualify named
26-19 persons from serving as guardian of the declarant's person or
26-20 estate, and the persons named may not be appointed guardian under
26-21 any circumstances.
26-22 (c) The declaration must have attached a self-proving
26-23 affidavit signed by the declarant and the witnesses attesting to
26-24 the competence of the declarant and the execution of the
26-25 declaration. A properly executed and witnessed declaration and
26-26 affidavit are prima facie evidence that the declarant was competent
26-27 at the time the declarant executed the declaration and that the
27-1 guardian named in the declaration would serve the best interests of
27-2 the ward.
27-3 (d) The declaration and affidavit may be filed with the
27-4 court at any time after the application for appointment of a
27-5 guardian is filed and before a guardian is appointed. Unless the
27-6 court finds that the person designated in the declaration to serve
27-7 as guardian is disqualified or would not serve the best interests
27-8 of the ward, the court shall appoint the person as guardian in
27-9 preference to those otherwise entitled to serve as guardian under
27-10 this code. If the designated guardian does not qualify, is dead,
27-11 refuses to serve, resigns, or dies after being appointed guardian,
27-12 or is otherwise unavailable to serve as guardian, the court shall
27-13 appoint the next eligible designated alternate guardian named in
27-14 the declaration. If the guardian and all alternate guardians do
27-15 not qualify, are dead, refuse to serve, or later die or resign, the
27-16 court shall appoint another person to serve as otherwise provided
27-17 by this code.
27-18 (e) The declarant may revoke a declaration in any manner
27-19 provided for the revocation of a will under Section 63 of this
27-20 code, including the subsequent reexecution of the declaration in
27-21 the manner required for the original declaration.
27-22 (f) If a declarant designates the declarant's spouse to
27-23 serve as guardian under this section, and the declarant is
27-24 subsequently divorced from that spouse before a guardian is
27-25 appointed, the provision of the declaration designating the spouse
27-26 has no effect.
27-27 (g) A declaration and affidavit may be in any form adequate
28-1 to clearly indicate the declarant's intention to designate a
28-2 guardian. The following forms may, but need not, be used:
28-3 DECLARATION OF GUARDIAN IN THE EVENT OF
28-4 LATER INCAPACITY OR NEED OF GUARDIAN
28-5 I, _____________, make this Declaration of Guardian, to
28-6 operate if the need for a guardian for me later arises.
28-7 1. I designate ____________ to serve as guardian of my
28-8 person, ____________ as first alternate guardian of my person,
28-9 ________________ as second alternate guardian of my person, and
28-10 ____________ as third alternate guardian of my person.
28-11 2. I designate ____________ to serve as guardian of my
28-12 estate, ____________ as first alternate guardian of my estate,
28-13 ____________ as second alternate guardian of my estate, and
28-14 ____________ as third alternate guardian of my estate.
28-15 3. If any guardian or alternate guardian dies, does not
28-16 qualify, or resigns, the next named alternate guardian becomes my
28-17 guardian.
28-18 4. I expressly disqualify the following persons from serving
28-19 as guardian of my person: ____________, ____________, and
28-20 ____________.
28-21 5. I expressly disqualify the following persons from serving
28-22 as guardian of my estate: ____________, ____________, and
28-23 ____________.
28-24 Signed this ____ day of __________, 19__.
28-25 ___________________
28-26 Declarant
28-27 ___________________ ___________________
29-1 Witness Witness
29-2 SELF-PROVING AFFIDAVIT
29-3 Before me, the undersigned authority, on this date personally
29-4 appeared the declarant, and ____________ and ____________ as
29-5 witnesses, and all being duly sworn, the declarant said that the
29-6 above instrument was his or her Declaration of Guardian and that
29-7 the declarant had made and executed it for the purposes expressed
29-8 in the declaration. The witnesses declared to me that they are
29-9 each 14 years of age or older, that they saw the declarant sign the
29-10 declaration, that they signed the declaration as witnesses, and
29-11 that the declarant appeared to them to be of sound mind.
29-12 ___________________
29-13 Declarant
29-14 ___________________ ____________________
29-15 Affiant Affiant
29-16 Subscribed and sworn to before me by the above named
29-17 declarant and affiants on this ____ day of __________, 19__.
29-18 ________________________
29-19 Notary Public in and for
29-20 the State of Texas
29-21 My Commission expires:
29-22 ________________________
29-23 Sec. 117C. AGENCY AS LAST RESORT. Except as a last resort,
29-24 the court may not appoint as guardian the Texas Department of
29-25 Mental Health and Mental Retardation, the Texas Department of Human
29-26 Services, a community mental health and mental retardation center,
29-27 or any other agency, public or private, that is directly providing
30-1 services to the incapacitated person.
30-2 Sec. 117D. ONLY ONE PERSON APPOINTED GUARDIAN. Only one
30-3 person may be appointed as guardian of the person or estate, but
30-4 one person may be appointed guardian of the person and another of
30-5 the estate, if it is to the advantage of the ward. Nothing in this
30-6 section prohibits the joint appointment of a husband and wife, or
30-7 of coguardians appointed under the laws of a jurisdiction other
30-8 than this state.
30-9 Sec. 118. NONRESIDENT GUARDIAN. (a) A nonresident of this
30-10 state may be appointed and qualified as guardian or coguardian of a
30-11 nonresident ward's estate located in this state in the same manner
30-12 provided by this code for the appointment and qualification of a
30-13 resident as guardian of the estate of an incapacitated person if:
30-14 (1) a court of competent jurisdiction in the
30-15 geographical jurisdiction in which the nonresident resides
30-16 appointed the nonresident guardian;
30-17 (2) the nonresident is qualified as guardian or as a
30-18 fiduciary legal representative by whatever name known in the
30-19 foreign jurisdiction of the property or estate of the ward located
30-20 in the jurisdiction of the foreign court; and
30-21 (3) with the written application for appointment in
30-22 the county court of any county in this state in which all or part
30-23 of the ward's estate is located, the nonresident files a complete
30-24 transcript of the proceedings from the records of the court in
30-25 which the nonresident applicant was appointed, showing the
30-26 applicant's appointment and qualification as the guardian or
30-27 fiduciary legal representative of the ward's property or estate.
31-1 (b) The transcript required by Subsection (a) of this
31-2 section must be certified to and attested by the clerk of the
31-3 foreign court or the officer of the court charged by law with
31-4 custody of the court records, under the court seal, if any. The
31-5 certificate of the judge, chief justice, or presiding magistrate,
31-6 as applicable, of the foreign court must be attached to the
31-7 transcript, certifying that the attestation of the transcript by
31-8 the clerk or legal custodian of the court records is in correct
31-9 form.
31-10 (c) If the nonresident applicant meets the requirements of
31-11 this section, without the necessity of any notice or citation, the
31-12 court shall enter an order appointing the nonresident. After the
31-13 nonresident applicant qualifies in the manner required of resident
31-14 guardians and files with the court a power of attorney appointing a
31-15 resident agent to accept service of process in all actions or
31-16 proceedings with respect to the estate, the clerk shall issue the
31-17 letters of guardianship to the nonresident guardian.
31-18 (d) After qualification, the nonresident guardian shall file
31-19 an inventory and appraisement of the estate of the ward in this
31-20 state subject to the jurisdiction of the court, as in ordinary
31-21 cases, and is subject to all applicable provisions of this code
31-22 with respect to the handling and settlement of estates by resident
31-23 guardians.
31-24 Sec. 118A. DELIVERY OF PROPERTY TO NONRESIDENT GUARDIAN.
31-25 The court may order a resident executor, administrator, or guardian
31-26 in possession of any of the estate of a ward to deliver the
31-27 property to a qualified and acting nonresident guardian of the
32-1 ward.
32-2 Sec. 118B. APPOINTMENT OF PRIVATE PROFESSIONAL GUARDIANS. A
32-3 court may not appoint a private professional guardian to serve as a
32-4 guardian or permit a private professional guardian to continue to
32-5 serve as a guardian under this code if the private professional
32-6 guardian has not complied with the requirements of Section 126 of
32-7 this code.
32-8 SUBPART D. CERTAIN POWERS AND DUTIES OF GUARDIAN
32-9 Sec. 119. RIGHTS AND POWERS RETAINED BY WARD. An
32-10 incapacitated person for whom a guardian is appointed retains all
32-11 legal and civil rights and powers except those designated by court
32-12 order as legal disabilities by virtue of having been specifically
32-13 granted to the guardian.
32-14 Sec. 120. OATH AND BOND OF GUARDIAN. The guardian shall
32-15 take and subscribe to an oath required by this code. The guardian
32-16 shall file a bond in accordance with Section 194 of this code.
32-17 Sec. 121. AUTHORITY OF GUARDIAN. After the filing of the
32-18 oath and bond, the order of the court appointing the guardian is
32-19 effective on the issuance of letters of guardianship. The order is
32-20 evidence of the authority of the guardian to act within the scope
32-21 of the powers and duties set forth in the order.
32-22 Sec. 121A. ACCOUNT AND INVENTORY. (a) Except as provided
32-23 by Subsection (b) of this section, a guardian of an adult shall
32-24 annually file, not later than the 60th day after the anniversary
32-25 date of the guardian's appointment, a written verified account of
32-26 the guardian's administration of the person and of the estate of
32-27 the adult.
33-1 (b) The court may allow the account of the estate of the
33-2 adult to be filed at intervals of up to 36 months if an adequate
33-3 bond or safekeeping agreement is in effect and the ward's income is
33-4 governmental benefits that the guardian by court order has to use
33-5 for maintenance and support of the ward. The court shall instruct
33-6 the guardian that any substantial increase in income or assets must
33-7 be reported not later than the 30th day after the date of the
33-8 substantial increase.
33-9 (c) A guardian who is managing properties shall prepare and
33-10 file, not later than the 90th day after the date of appointment, a
33-11 verified inventory of all the property of the incapacitated person
33-12 in the guardian's possession or knowledge, including a statement of
33-13 all encumbrances, liens, and other secured charges on any item.
33-14 (d) A guardian of an adult shall file a written verified
33-15 account of the guardian's administration of the person and of the
33-16 estate of the adult not later than the 30th day after termination
33-17 of the guardianship.
33-18 Sec. 121B. MANAGEMENT OF PROPERTY. To the extent that an
33-19 order of the court gives a guardian control of any property of an
33-20 incapacitated person, the guardian shall take care of and manage
33-21 the property as a prudent person would manage the person's own
33-22 property.
33-23 Sec. 121C. CARE OF WARD; COMMITMENT. (a) The guardian of
33-24 an adult may expend funds of the guardianship as provided by court
33-25 order to care for and maintain the incapacitated person. The
33-26 guardian may apply for residential care and services provided by a
33-27 public or private facility on behalf of an incapacitated person who
34-1 has decision-making ability if the person agrees to be placed in
34-2 the facility. The guardian shall report the condition of the
34-3 person to the court at regular intervals at least annually, unless
34-4 the court orders more frequent reports. If the person is receiving
34-5 residential care in a public or private residential care facility,
34-6 the guardian shall include in any report to the court a statement
34-7 as to the necessity for continued care in the facility.
34-8 (b) A guardian may not voluntarily admit an incapacitated
34-9 person to a public or private inpatient psychiatric facility or to
34-10 a residential facility operated by the Texas Department of Mental
34-11 Health and Mental Retardation for care and treatment. If care and
34-12 treatment in a psychiatric or a residential facility are necessary,
34-13 the person or the person's guardian may apply to a court to commit
34-14 the person under Subtitle D, Title 7, Health and Safety Code
34-15 (Persons with Mental Retardation Act), Subtitle C, Title 7, Health
34-16 and Safety Code (Texas Mental Health Code), or Chapter 462, Health
34-17 and Safety Code.
34-18 Sec. 121D. NONRESIDENT GUARDIAN'S REMOVAL OF WARD'S PROPERTY
34-19 FROM STATE. A nonresident guardian, whether or not qualified under
34-20 this code, may remove personal property of the ward out of the
34-21 state if:
34-22 (1) the removal does not conflict with the tenure of
34-23 the property or the terms and limitations of the guardianship under
34-24 which the property is held; and
34-25 (2) all debts known to exist against the estate in
34-26 this state are paid or secured by bond payable to and approved by
34-27 the judge of the court in which guardianship proceedings are
35-1 pending in this state.
35-2 SUBPART E. TERMINATION, MODIFICATION, REMOVAL, OR RESIGNATION
35-3 Sec. 122. TERM OF APPOINTMENT OF GUARDIAN. (a) Unless
35-4 otherwise discharged as provided by law, a guardian remains in
35-5 office until the estate is closed.
35-6 (b) The guardianship shall be settled and closed when the
35-7 incapacitated person:
35-8 (1) dies and, if the person was married, the person's
35-9 spouse qualifies as survivor in community;
35-10 (2) is found by the court to have full capacity to
35-11 care for himself or herself and to manage the person's property;
35-12 (3) is no longer a minor;
35-13 (4) returns to the United States, if the person was a
35-14 missing person and the court grants the motion of any interested
35-15 person to vacate the original order of guardianship; or
35-16 (5) no longer must have a guardian appointed to
35-17 receive funds due the person from any governmental source.
35-18 (c) An order appointing a guardian or a successor guardian
35-19 may specify a period of not more than one year during which a
35-20 petition for adjudication that the incapacitated person no longer
35-21 requires the guardianship may not be filed without special leave.
35-22 (d) Except as provided by Subsection (c) of this section, a
35-23 ward or any person interested in the ward's welfare may petition
35-24 the court for an order:
35-25 (1) finding that the ward no longer needs the
35-26 guardianship and ordering that the guardian resign or be removed;
35-27 (2) finding that the ward lacks the capacity to do
36-1 some or all of the tasks necessary to care for himself or herself
36-2 or to manage the ward's property and granting additional powers or
36-3 duties to the guardian with respect to the care of the ward or the
36-4 management of the ward's property by the guardian; or
36-5 (3) finding that the ward has regained the capacity to
36-6 do some, but not all, of the tasks necessary to care for himself or
36-7 herself or to manage the ward's property and:
36-8 (A) limiting the powers or duties of the
36-9 guardian with respect to the care of the ward or the management of
36-10 the ward's property by the guardian; and
36-11 (B) permitting the ward to care for himself or
36-12 herself or to manage the ward's property commensurate with the
36-13 ward's ability.
36-14 (e) A request for an order under this section may be made by
36-15 informal letter to the court. A person who knowingly interferes
36-16 with the transmission of the request to the court may be adjudged
36-17 guilty of contempt of court.
36-18 (f) If a nonresident guardian of a nonresident ward
36-19 qualifies as guardian under Subpart C of this part, the
36-20 guardianship of any resident guardian may be terminated.
36-21 Sec. 123. REMOVAL OR RESIGNATION OF GUARDIAN. (a) On
36-22 petition of the incapacitated person or any person interested in
36-23 the person's welfare and on service of notice as directed by the
36-24 court, the court may remove a guardian if the court finds removal
36-25 in the best interests of the person.
36-26 (b) On petition of the guardian, the court may accept the
36-27 guardian's resignation.
37-1 Sec. 123A. ANNUAL DETERMINATION AS TO WHETHER GUARDIANSHIP
37-2 SHOULD BE CONTINUED, MODIFIED, OR TERMINATED. (a) A court in
37-3 which a guardianship proceeding is pending shall review annually
37-4 each guardianship to determine whether the guardianship should be
37-5 continued, modified, or terminated.
37-6 (b) In reviewing a guardianship as provided by Subsection
37-7 (a) of this section, a statutory probate court shall:
37-8 (1) review a report prepared by a court investigator
37-9 under Section 25.0025, Government Code;
37-10 (2) review a report prepared by a court visitor under
37-11 Section 127 of this code; or
37-12 (3) conduct a hearing if necessary.
37-13 (c) In reviewing a guardianship as provided by Subsection
37-14 (a) of this section, a court that is not a statutory probate court
37-15 may use any appropriate method determined by the court according to
37-16 the court's caseload and the resources available to the court.
37-17 (d) A determination under this section must be in writing
37-18 and filed with the clerk.
37-19 Sec. 124. APPOINTMENT OF SUCCESSOR GUARDIAN. (a) At any
37-20 hearing under this chapter the court may appoint one or more
37-21 successor guardians to assume the position of guardian without
37-22 additional judicial proceedings on the failure to qualify, death,
37-23 incapacity, or resignation of the preceding guardian. The guardian
37-24 serving at the time a successor guardian is appointed shall furnish
37-25 each successor guardian with a copy of the court order establishing
37-26 or modifying the initial guardianship and a copy of the order
37-27 appointing the successor guardian. A successor guardian who
38-1 assumes the position of guardian without a court proceeding shall
38-2 notify the court having jurisdiction of the guardianship of the
38-3 change in guardian not later than the 11th day after the date the
38-4 successor guardian assumes the position.
38-5 (b) Unless provision for a successor is made under
38-6 Subsection (a) of this section, if a guardian dies, resigns, or is
38-7 removed, the court may, on application and on service of notice as
38-8 directed by the court, appoint a successor guardian.
38-9 (c) A successor guardian has the powers and rights and is
38-10 subject to all of the duties of the preceding guardian.
38-11 SUBPART F. REMOVAL OF GUARDIANSHIP TO ANOTHER COUNTY
38-12 Sec. 125. APPLICATION FOR REMOVAL OF GUARDIANSHIP. When a
38-13 guardian or any other person desires to remove the transaction of
38-14 the business of the guardianship from one county to another, the
38-15 person shall file a written application in the court in which the
38-16 guardianship is pending stating the reason for moving the
38-17 transaction of business.
38-18 Sec. 125A. NOTICE. (a) On filing an application to remove
38-19 a guardianship to another county, the sureties on the bond of the
38-20 guardian shall be cited by personal service to appear and show
38-21 cause why the application should not be granted.
38-22 (b) If an application is filed by a person other than the
38-23 guardian, the guardian shall be cited by personal service to appear
38-24 and show cause why the application should not be granted.
38-25 Sec. 125B. COURT ACTION. On hearing an application under
38-26 Section 125 of this code, if good cause is not shown to deny the
38-27 application and it appears that removal of the guardianship is in
39-1 the best interests of the ward, the court shall enter an order
39-2 authorizing the removal on payment on behalf of the estate of all
39-3 accrued costs.
39-4 Sec. 125C. TRANSCRIPT OF RECORD. When an order of removal
39-5 is made under Section 125B of this code, the clerk shall record any
39-6 unrecorded papers of the guardianship required to be recorded and
39-7 make out a complete certified transcript of all the orders,
39-8 decrees, judgments, and proceedings in the guardianship. On
39-9 payment of the clerk's fees, the clerk shall transmit the
39-10 transcript, with the original papers in the case, to the county
39-11 clerk of the county to which the guardianship was ordered removed.
39-12 Sec. 125D. REMOVAL EFFECTIVE. The order removing a
39-13 guardianship does not take effect until:
39-14 (1) the transcript required by Section 125C of this
39-15 code is filed in the office of the county clerk of the county to
39-16 which the guardianship was ordered removed; and
39-17 (2) a certificate under the clerk's official seal and
39-18 reporting the filing of the transcript is filed in the court
39-19 ordering the removal by the county clerk of the county to which the
39-20 guardianship was ordered removed.
39-21 Sec. 125E. CONTINUATION OF GUARDIANSHIP. When a
39-22 guardianship is removed from one county to another in accordance
39-23 with this subpart, the guardianship proceeds in the court to which
39-24 it was removed as if it had been originally commenced in that
39-25 court. It is not necessary to record in the receiving court any of
39-26 the papers in the case that were recorded in the court from which
39-27 the case was removed.
40-1 Sec. 125F. NEW GUARDIAN MAY BE APPOINTED ON REMOVAL. If it
40-2 appears to the court that removal of the guardianship is in the
40-3 best interests of the ward, but that because of the removal it will
40-4 be unduly expensive or unduly inconvenient to the estate for the
40-5 guardian of the estate to continue to serve in that capacity, the
40-6 court may in its order of removal revoke the letters of
40-7 guardianship and appoint a new guardian, and the former guardian
40-8 shall account for and deliver the estate as provided in this code
40-9 in a case in which a guardian resigns.
40-10 SUBPART G. PRIVATE PROFESSIONAL GUARDIANS
40-11 Sec. 126. REGISTRATION OF PRIVATE PROFESSIONAL GUARDIANS.
40-12 (a) A private professional guardian must apply annually to the
40-13 clerk of the county having venue over the proceeding for the
40-14 appointment of a guardian for certification. The application must
40-15 include a sworn statement containing the following information
40-16 concerning a private professional guardian or a person who
40-17 represents or plans to represent the interests of a ward as a
40-18 guardian on behalf of the private professional guardian:
40-19 (1) educational background and professional
40-20 experience;
40-21 (2) three or more professional references;
40-22 (3) the names of all of the wards the private
40-23 professional guardian or person is or will be serving as a
40-24 guardian;
40-25 (4) the aggregate fair market value of the property of
40-26 all wards that is being or will be managed by the private
40-27 professional guardian or person;
41-1 (5) place of residence, business address, and business
41-2 telephone number; and
41-3 (6) whether the private professional guardian or
41-4 person has ever been removed as a guardian by the court or resigned
41-5 as a guardian in a particular case, and, if so, a description of
41-6 the circumstances causing the removal or resignation, and the style
41-7 of the suit, the docket number, and the court having jurisdiction
41-8 over the proceeding.
41-9 (b) The application must be accompanied by a nonrefundable
41-10 fee set by the clerk in an amount necessary to cover the cost of
41-11 administering this section.
41-12 (c) The term of the certification begins on the date that
41-13 the requirements are met and extends through December 31 of the
41-14 initial year. After the initial year of certification, the term of
41-15 the certification begins on January 1 and ends on December 31 of
41-16 each year. A renewal application must be completed during December
41-17 of the year preceding the year for which the renewal is requested.
41-18 (d) The clerk shall bring the information received under
41-19 this section to the judge's attention for review. The judge shall
41-20 use the information only in determining whether to appoint, remove,
41-21 or continue the appointment of a private professional guardian.
41-22 Sec. 126A. ACCESS TO CRIMINAL HISTORY RECORDS. (a) The
41-23 clerk of the county having venue over the proceeding for the
41-24 appointment of a guardian shall obtain criminal history record
41-25 information that is maintained by the Department of Public Safety
41-26 or the Federal Bureau of Investigation identification division
41-27 relating to a private professional guardian or a person who
42-1 represents or plans to represent the interests of a ward as a
42-2 guardian on behalf of the private professional guardian.
42-3 (b) The criminal history record information obtained under
42-4 this section is for the exclusive use of the court and is
42-5 privileged and confidential. The criminal history record
42-6 information may not be released or otherwise disclosed to any
42-7 person or agency except on court order or consent of the person
42-8 being investigated. The clerk may destroy the criminal history
42-9 information records after the records are used for the purposes
42-10 authorized by this section.
42-11 (c) The court shall use the information obtained under this
42-12 section only in determining whether to appoint, remove, or continue
42-13 the appointment of a private professional guardian.
42-14 (d) A person commits an offense if the person releases or
42-15 discloses any information received under this section without the
42-16 authorization prescribed by Subsection (b) of this section. An
42-17 offense under this subsection is a Class A misdemeanor.
42-18 (e) The clerk may charge a reasonable fee sufficient to
42-19 recover the costs of obtaining criminal history information records
42-20 authorized by Subsection (a) of this section.
42-21 SUBPART H. COURT VISITOR PROGRAM
42-22 Sec. 127. COURT VISITOR PROGRAM. (a) Each statutory
42-23 probate court shall operate a court visitor program to assess the
42-24 conditions of wards and proposed wards. Another court that has
42-25 jurisdiction over a guardianship proceeding may operate a court
42-26 visitor program in accordance with the population needs and
42-27 financial abilities of the jurisdiction. A court that operates a
43-1 court visitor program shall use persons willing to serve without
43-2 compensation to the greatest extent possible.
43-3 (b) On request by any interested person, including a ward or
43-4 proposed ward, or on its own motion, and at any time before the
43-5 appointment of a guardian or during the pendency of a guardianship
43-6 of the person or estate, a court may appoint a court visitor to
43-7 evaluate the ward or proposed ward and provide a written report
43-8 that substantially complies with Subsection (c) of this section.
43-9 (c) A court visitor's report must include:
43-10 (1) a description of the nature and degree of capacity
43-11 and incapacity of the ward or proposed ward, including the medical
43-12 history of the ward or proposed ward, if reasonably available and
43-13 not waived by the court;
43-14 (2) a medical prognosis and a list of the treating
43-15 physicians of the ward or proposed ward, when appropriate;
43-16 (3) a description of the living conditions and
43-17 circumstances of the ward or proposed ward;
43-18 (4) a description of the social, intellectual,
43-19 physical, and educational condition of the ward or proposed ward;
43-20 (5) a statement that the court visitor has personally
43-21 visited or observed the ward or proposed ward;
43-22 (6) a statement of the date of the most recent visit
43-23 by the guardian, if one has been appointed;
43-24 (7) a recommendation as to any modifications needed in
43-25 the guardianship or proposed guardianship, including removal or
43-26 denial of the guardianship; and
43-27 (8) any other information required by the court.
44-1 (d) The court visitor shall file the report not later than
44-2 the 14th day after the date of the evaluation conducted by the
44-3 court visitor, and the court visitor making the report must swear,
44-4 under penalty of perjury, to its accuracy to the best of the court
44-5 visitor's knowledge and belief.
44-6 (e) A court visitor who has not expressed a willingness to
44-7 serve without compensation is entitled to reasonable compensation
44-8 for services in an amount set by the court and to be taxed as costs
44-9 in the proceeding.
44-10 <PART 3. ESTATES OF MINORS AND INCOMPETENTS>
44-11 <Sec. 108. ><Laws Applicable To Guardianships><. The
44-12 provisions, rules, and regulations which govern estates of
44-13 decedents shall apply to and govern guardianships, whenever the
44-14 same are applicable and are not inconsistent with any provision of
44-15 this Code.>
44-16 <Sec. 109. ><Persons Qualified To Serve as Guardians><. (a)
44-17 Natural Guardians. If the parents live together, both parents are
44-18 the natural guardians of the person of the minor children by the
44-19 marriage, and one of the parents, which may be either the father or
44-20 the mother, is entitled to be appointed guardian of their estates.
44-21 In event of disagreement as to which parent shall be appointed, the
44-22 court shall make the appointment on the basis of which one is the
44-23 better qualified to serve in that capacity. If one parent is dead,
44-24 the survivor is the natural guardian of the person of the minor
44-25 children, and is entitled to be appointed guardian of their
44-26 estates. The rights of parents who do not live together are equal;
44-27 the guardianship of their minor children shall be assigned to one
45-1 or the other, the interest of the children alone being considered.>
45-2 <(b) Guardians of Orphans. These rules shall govern as to
45-3 orphans who are minors:>
45-4 <(1) If the last surviving parent has appointed no
45-5 guardian, the nearest ascendant in the direct line of such minor is
45-6 entitled to guardianship of both the person and estate of such
45-7 minor.>
45-8 <(2) If there be more than one ascendant in the same
45-9 degree in the direct line, they are equally entitled. The
45-10 guardianship shall be given to one or the other, according to
45-11 circumstances, only the best interest of the orphan being
45-12 considered.>
45-13 <(3) If the orphan has no ascendant in the direct
45-14 line, the guardianship shall be given to the nearest of kin. If
45-15 there be two or more in the same degree, the guardianship shall be
45-16 given to one or the other, according to circumstances, only the
45-17 best interest of the orphan being considered.>
45-18 <(4) If there be no relative of the minor qualified to
45-19 take the guardianship, or if no person entitled to such
45-20 guardianship applies therefor, the court shall appoint a qualified
45-21 person to be such guardian.>
45-22 <(c) Guardians for Persons Other Than Minors. If a person
45-23 is an incompetent, or one for whom it is necessary that a guardian
45-24 be appointed to receive funds due from any governmental source,
45-25 these rules shall govern:>
45-26 <(1) If such person has a spouse who is not
45-27 disqualified, such spouse shall be entitled to the guardianship in
46-1 preference to any other person.>
46-2 <(2) If there be no qualified spouse, the nearest of
46-3 kin to such person, who is not disqualified, or in case of refusal
46-4 by such spouse or nearest of kin to serve, then any other qualified
46-5 person shall be entitled to the guardianship.>
46-6 <(3) Where two or more persons are equally entitled,
46-7 the guardianship shall be given to one or the other, according to
46-8 the circumstances, only the best interest of the ward being
46-9 considered.>
46-10 <(d) Presumption Concerning Best Interest. It is presumed
46-11 not to be in the best interest of a ward to appoint a person as
46-12 guardian of the ward if the person has been finally convicted of
46-13 any sexual offense, sexual assault, aggravated assault, aggravated
46-14 sexual assault, injury to a child, abandoning or endangering a
46-15 child, or incest.>
46-16 <Sec. 110. ><Persons Disqualified To Serve as Guardians><. The
46-17 following persons shall not be appointed guardians:>
46-18 <(a) Minors.>
46-19 <(b) Persons whose conduct is notoriously bad.>
46-20 <(c) Incompetents.>
46-21 <(d) Those who are themselves parties, or whose father or
46-22 mother is a party to a lawsuit on the result of which the welfare
46-23 of the person for whom, or for whose estate, a guardian is to be
46-24 appointed, may depend.>
46-25 <(e) Those who are indebted to the person for whom or for
46-26 whose estate a guardian is to be appointed, unless they pay the
46-27 debt prior to the appointment, or who are asserting any claim to
47-1 any property, real or personal, adverse to the person for whom, or
47-2 for whose estate, the appointment is sought.>
47-3 <(g) Those who by reason of inexperience or lack of
47-4 education, or for other good reason, are shown to be incapable of
47-5 properly and prudently managing and controlling the ward or his
47-6 estate.>
47-7 <Sec. 111. ><Application for Appointment of Permanent
47-8 Guardian><. (a) A proceeding for the appointment of a guardian
47-9 shall be begun by written application filed in the court of the
47-10 county having venue thereof. Any person may make such application.
47-11 Such application shall be sworn and must state:>
47-12 <(1) The name, sex, date of birth, and residence, of
47-13 the person for whom the appointment of a guardian is sought;>
47-14 <(2) If a minor, the names of the parents and next of
47-15 kin of such persons, and whether either or both of the parents are
47-16 deceased;>
47-17 <(c) If a minor, a statement of whether the minor has
47-18 been the subject of a legal or conservatorship proceeding within
47-19 the preceding two-year period, and if so, the court involved, the
47-20 nature of the proceeding, and the final disposition, if any, of the
47-21 proceeding;>
47-22 <(3) If a person 60 years of age or older, the name
47-23 and address, to the best of the applicant's knowledge, of the
47-24 person's spouse, brother, sister, and children;>
47-25 <(4) A general description of the property comprising
47-26 such person's estate, if guardianship of the estate is sought;>
47-27 <(5) The facts which require that a guardian be
48-1 appointed;>
48-2 <(6) The name, relationship, and address of the person
48-3 whom the applicant desires to have appointed as guardian;>
48-4 <(7) Whether guardianship of the person and estate, or
48-5 of the person or of the estate, is sought;>
48-6 <(8) The social security number of the applicant and
48-7 of the person for whom the appointment of a guardian is sought; and>
48-8 <(9) Such other facts as show that the court has venue
48-9 over the proceeding.>
48-10 <(b) The portion of the application stating the information
48-11 required by Subsection (a)(3) of this section shall be sworn to by
48-12 the applicant.>
48-13 <Sec. 112. ><Judge May Cause Application to be Filed><.
48-14 Whenever it comes to the knowledge of the county judge that any
48-15 person whose legal domicile is in his county, or who is found
48-16 therein, is a minor, a person of unsound mind, or an habitual
48-17 drunkard, and is without a guardian of his person or of his estate
48-18 within this State, and that there is probable cause for the
48-19 exercise of his jurisdiction, he may cause proper proceedings to be
48-20 commenced and application to be made as provided in the preceding
48-21 Section for the appointment of a guardian of the person and of the
48-22 estate of such person, or of either. Upon the filing of such
48-23 application, process shall be issued and served as hereinafter
48-24 provided.>
48-25 <Sec. 113. ><Contest Of Proceedings><. Any person has the right
48-26 to appear and contest the appointment of a particular person as
48-27 guardian, or to contest any proceeding which he deems to be
49-1 injurious to the ward, or to commence any proceeding which he deems
49-2 beneficial to the ward.>
49-3 <Sec. 113A. ><Appointment of Attorney Ad Litem><. In a
49-4 proceeding under the provisions of this chapter for the appointment
49-5 of a guardian, the judge shall appoint an attorney ad litem to
49-6 represent the interests of the person for whom the permanent
49-7 guardianship is sought and shall allow the attorney ad litem a
49-8 reasonable fee for his services to be taxed as part of the costs.>
49-9 <Sec. 114. ><Facts Which Must Be Proved><. Before appointing a
49-10 guardian, the court must find:>
49-11 <(a) That the person for whom a guardian is to be appointed
49-12 is either a minor, a person of unsound mind, an habitual drunkard,
49-13 or a person for whom it is necessary to have a guardian appointed
49-14 to receive funds due such person from any governmental source. In
49-15 the last case, a certificate of the executive head, or his
49-16 representative, of the bureau, department, or agency of the
49-17 government through which such funds are to be paid, to the effect
49-18 that the appointment of a guardian is a condition precedent to the
49-19 payment of any funds due such person, shall be prima facie evidence
49-20 of the necessity for such appointment.>
49-21 <(b) That the court has venue of the case.>
49-22 <(c) That the person to be appointed guardian is not
49-23 disqualified to act as such and is entitled to be appointed; or, in
49-24 case no person who is entitled to appointment applies for it, that
49-25 the person appointed is a proper person to act as such guardian.>
49-26 <(d) That the rights of persons or property will be
49-27 protected by the appointment of a guardian.>
50-1 <(e) If the guardian is to be appointed for a minor, that
50-2 the creation of the guardianship is not for the primary purpose of
50-3 enabling the minor to establish residency for enrollment in a
50-4 school or school district in which the student would not otherwise
50-5 be eligible for enrollment.>
50-6 <Sec. 115. ><Jury Trial Not Prerequisite><. A jury trial,
50-7 verdict, and judgment that a person is of unsound mind or an
50-8 habitual drunkard shall not be prerequisite to an appropriate
50-9 finding and adjudication by the court and appointment of a guardian
50-10 for the person alleged to be of unsound mind or an habitual
50-11 drunkard; nor shall it be necessary that such person be present at
50-12 the trial.>
50-13 <Sec. 116. ><Only One Person To Be Appointed Guardian><. Only
50-14 one person can be appointed as guardian of the person or estate;
50-15 but one person may be appointed guardian of the person, and another
50-16 of the estate, whenever the court shall be satisfied that it will
50-17 be for the advantage of the ward to do so; but nothing herein shall
50-18 be held to prohibit the joint appointment of a husband and wife, or
50-19 of co-guardians duly appointed under the laws of another state,
50-20 territory or country, or of the District of Columbia.>
50-21 <Sec. 117. ><Appointment Of Guardian By Will><. The surviving
50-22 parent of a minor may, by will or written declaration, appoint any
50-23 qualified person to be guardian of the person of his or her
50-24 children after the death of such parent; and, if not disqualified,
50-25 such person shall also be entitled to be appointed guardian of
50-26 their estate after the death of such parent, upon compliance with
50-27 the provisions of this Code.>
51-1 <Sec. 118. ><Selection Of Guardian By Minor><. (a) When No
51-2 Other Guardian Has Been Appointed. When an application has been
51-3 filed for the guardianship of the person or estate, or of both, of
51-4 a minor who has attained the age of fourteen years, such minor may,
51-5 by writing filed with the clerk, make choice of the guardian,
51-6 subject to the court's approval of such choice.>
51-7 <(b) When Another Guardian Has Been Appointed. A minor upon
51-8 attaining the age of fourteen years may select another guardian
51-9 either of his person or estate, or both, if such minor has a
51-10 guardian appointed by the court, or if, having a guardian appointed
51-11 by will or written declaration of the parent of such minor, such
51-12 last named guardian dies, resigns, or is removed from guardianship;
51-13 and the court shall, if satisfied that the person selected is
51-14 suitable and competent, make such appointment and revoke the
51-15 letters of guardianship to the former guardian. Such selection
51-16 shall be made in open court, in person or by attorney, by making
51-17 application therefor.>
51-18 <Sec. 118A. ><Designation of Guardian Before Need Arises><. (a)
51-19 A person, other than a minor or an incompetent, may designate by a
51-20 written declaration persons to serve as guardian of the person of
51-21 the declarant or the estate of the declarant in the event the
51-22 declarant becomes incompetent. The declaration must be attested to
51-23 by at least two credible witnesses 14 years of age or older who are
51-24 not named as guardian or alternative guardian in the declaration.>
51-25 <(b) A declarant may, in the declaration, disqualify named
51-26 persons from serving as guardian of the declarant's person or
51-27 estate, and the persons named may not be appointed guardian under
52-1 any circumstances.>
52-2 <(c) The declaration must have attached a self-proving
52-3 affidavit signed by the declarant and the witnesses attesting to
52-4 the competence of the declarant and the execution of the
52-5 declaration. A properly executed and witnessed declaration and
52-6 affidavit are prima facie evidence that the declarant was competent
52-7 at the time he executed the declaration and that the guardian named
52-8 in the declaration would serve the best interests of the ward.>
52-9 <(d) The declaration and affidavit may be filed with the
52-10 court at any time after the application for appointment of a
52-11 guardian is filed and before a guardian is appointed. Unless the
52-12 court finds that the person designated in the declaration to serve
52-13 as guardian is disqualified or would not serve the best interests
52-14 of the ward, the court shall appoint the person as guardian in
52-15 preference to those otherwise entitled to serve as guardian under
52-16 this code. If the designated guardian fails to qualify, is dead,
52-17 refuses to serve, resigns, or dies after being appointed guardian,
52-18 or is otherwise unavailable to serve as guardian, the court shall
52-19 appoint the next qualified designated alternate guardian named in
52-20 the declaration. If the guardian and all alternate guardians fail
52-21 to qualify, are dead, refuse to serve, or later die or resign, the
52-22 court shall appoint another person to serve as otherwise provided
52-23 by this code.>
52-24 <(e) The declarant may revoke a declaration in any manner
52-25 provided for the revocation of a will under Section 63 of this
52-26 code, including by the subsequent reexecution of the declaration in
52-27 the manner required for the original declaration.>
53-1 <(f) If a declarant designates the declarant's spouse to
53-2 serve as guardian under this section, and the declarant is
53-3 subsequently divorced from that spouse before a guardian is
53-4 appointed, the provision of the declaration designating the spouse
53-5 has no effect.>
53-6 <(g) A declaration and affidavit may be in any form adequate
53-7 to clearly indicate the declarant's intention to designate a
53-8 guardian. The following forms may, but need not, be used:>
53-9 <DECLARATION OF GUARDIAN IN THE EVENT OF LATER>
53-10 <INCOMPETENCE OR NEED OF GUARDIAN>
53-11 <I, _______________, make this Declaration of Guardian, to
53-12 operate if the need for a guardian for me later arises.>
53-13 <1. I designate _______________ to serve as guardian of my
53-14 person, _______________ as first alternate guardian of my person,
53-15 _______________ as second alternate guardian of my person, and
53-16 _______________ as third alternate guardian of my person.>
53-17 <2. I designate _______________ to serve as guardian of my
53-18 estate, _______________ as first alternate guardian of my estate,
53-19 _______________ as second alternate guardian of my estate, and
53-20 _______________ as third alternate guardian of my estate.>
53-21 <3. If any guardian or alternate guardian dies, fails, or
53-22 refuses to qualify, or resigns, the next named alternate guardian
53-23 succeeds the prior named guardian and becomes my guardian.>
53-24 <4. I expressly disqualify the following persons from
53-25 serving as guardian of my person: _______________,
53-26 _______________, and _______________.>
53-27 <5. I expressly disqualify the following persons from
54-1 serving as guardian of my estate: _______________, _______________,
54-2 and _______________.>
54-3 <Signed this _____ day of __________, 19___.>
54-4 <_______________>
54-5 <Declarant>
54-6 <_______________> <_______________>
54-7 <Witness> <Witness>
54-8 <SELF-PROVING AFFIDAVIT>
54-9 <Before me, the undersigned authority, on this date
54-10 personally appeared the declarant, and _______________ and
54-11 _______________ as witnesses, and all being duly sworn, the
54-12 declarant said that the above instrument was his Declaration of
54-13 Guardian and that he had made and executed it for the purposes
54-14 therein expressed. The witnesses declared to me that they are each
54-15 14 years of age or older, that they saw the declarant sign the
54-16 declaration, that they signed the declaration as witnesses, and
54-17 that the declarant appeared to them to be of sound mind.>
54-18 <_______________>
54-19 <Declarant>
54-20 <_______________> <_______________>
54-21 <Affiant> <Affiant>
54-22 <Subscribed and sworn to before me by the above named
54-23 declarant and affiants on this _____ day of __________, 19___.>
54-24 <___________________________>
54-25 <Notary Public in and for>
54-26 <the State of Texas>
54-27 <My Commission expires:>
55-1 <Sec. 119. ><Failure Of Guardian To Qualify><. If a person
55-2 appointed guardian fails to qualify as such according to law, or
55-3 dies, resigns, or is removed, the court shall appoint another
55-4 guardian in his stead, upon application, but without further notice
55-5 or citation.>
55-6 <Sec. 120. ><Term Of Appointment Of Guardian><. Unless sooner
55-7 discharged according to law, a guardian remains in office until the
55-8 estate is closed in accordance with the provisions of this Code, as
55-9 hereinafter set out.>
55-10 <Sec. 121. ><Removal Of Guardianship To Another County May Be
55-11 Had><. (a) Application for Removal of Guardianship. When a
55-12 guardian, or any other person, desires to remove the transaction of
55-13 the business of the guardianship from one county to another, he
55-14 shall file in the court where such guardianship is pending a
55-15 written application asking authority to do so, and shall state in
55-16 such application his reason for desiring such removal.>
55-17 <(b) Sureties on Bond to Be Cited. Upon the filing of such
55-18 application, the sureties upon the bond of such guardian shall be
55-19 cited by personal service to appear and show cause why such
55-20 application should not be granted.>
55-21 <(c) When Guardian Shall Be Cited. If the application for
55-22 removal is filed by any person other than the guardian, the
55-23 guardian also shall be cited by personal service to appear and show
55-24 cause why such application should not be granted.>
55-25 <(d) Action of the Court. Upon the hearing of the
55-26 application, if no good cause be shown to the contrary, and if it
55-27 appears that the removal of the guardianship would be to the best
56-1 interest of the ward, the court shall enter an order authorizing
56-2 such removal upon the payment on behalf of the estate of all costs
56-3 that have accrued.>
56-4 <(e) Transcript of Record. When such order of removal has
56-5 been made, the clerk shall record all papers of the guardianship
56-6 required to be recorded that have not already been recorded, and
56-7 shall make out a full and complete certified transcript of all the
56-8 orders, decrees, judgments, and proceedings in such guardianship;
56-9 and, upon the payment of his fees therefor, shall transmit such
56-10 transcript, together with all the original papers in the case, to
56-11 the county clerk of the county to which such guardianship has been
56-12 ordered removed.>
56-13 <(f) When Removal Shall Become Effective. The order
56-14 removing a guardianship shall not take effect until such transcript
56-15 has been filed in the office of the county clerk of the county to
56-16 which such guardianship has been ordered removed, and until a
56-17 certificate of such fact from the clerk filing the same, under his
56-18 official seal, has been filed in the court making such order of
56-19 removal.>
56-20 <Sec. 122. ><Continuation of Guardianship><. When a
56-21 guardianship has been removed from one county to another in
56-22 accordance with the foregoing provisions of this Code, it shall be
56-23 proceeded with in the court to which it has been removed as if it
56-24 had been originally commenced in said court; but it shall not be
56-25 necessary to record any of the papers in the case that have been
56-26 recorded in the court from which the same has been removed.>
56-27 <Sec. 123. ><New Guardian May Be Appointed Upon Removal><. If
57-1 it appears to the court that the removal of the guardianship would
57-2 be to the best interest of the ward, but that, by virtue of such
57-3 removal, it will be unduly expensive to the estate, or unduly
57-4 inconvenient, for the guardian of the estate to continue to serve
57-5 in such capacity, the court may in its order of removal, revoke the
57-6 letters of guardianship and appoint a new guardian. In such event,
57-7 the former guardian shall account for and deliver the estate as is
57-8 provided in this Code in cases where guardians resign.>
57-9 <Sec. 124. NONRESIDENTS, APPOINTMENT OF GUARDIANS FOR. (a)
57-10 Appointment of Non-Resident Guardian. A non-resident or
57-11 non-residents of Texas, being natural persons or corporations,
57-12 resident of another state or of the District of Columbia, or of any
57-13 territory, or of any other nation or country, may be appointed and
57-14 qualified as guardian, or co-guardian of his or its or their
57-15 non-resident ward's estate situated in Texas in the same manner and
57-16 by the same procedure provided in this Code for the appointment and
57-17 qualification of a resident of this State as guardian of the
57-18 estates of minors, persons of unsound mind, or habitual drunkards;
57-19 provided that, by proceedings in and decree or decrees of a court
57-20 of competent jurisdiction in another state, the District of
57-21 Columbia, a territory, or another nation or country, of his or its
57-22 or their residence, such non-resident applicant or applicants shall
57-23 have been previously duly appointed and are still qualified as
57-24 guardian, co-guardians, tutor, curator, committee, or fiduciary
57-25 legal representative by whatever name known in such foreign
57-26 jurisdiction, of the property or estate of his or its or their ward
57-27 situated within the jurisdiction of such foreign court, whether
58-1 such ward be a minor, a person of unsound mind, or an habitual
58-2 drunkard; and provided further that, with his or its or their
58-3 written application for appointment in the county court of any
58-4 county in this state where all or part of such ward's estate is
58-5 situated in this state, such non-resident applicant or applicants
58-6 file also a full and complete transcript of the proceedings from
58-7 the records of the court in which he or it or they were appointed
58-8 in the jurisdiction of his or its or their residence, evidencing
58-9 his or its or their due appointment and qualification as such
58-10 guardian, co-guardians, tutor, curator, committee, or other
58-11 fiduciary legal representative, of his or its or their ward's
58-12 property or estate, which transcript shall be certified to and
58-13 attested by the clerk of such foreign court, if there be a clerk,
58-14 and, if there be no clerk, then by the officer of said court
58-15 charged by law with the custody of the records thereof, under the
58-16 seal of such court, if there be a seal, to which transcript shall
58-17 be attached the certificate of the judge, chief justice or
58-18 presiding magistrate, as the case may be, of such foreign court to
58-19 the effect that the said attestation of such transcript by the
58-20 clerk or legal custodian of the court records is in due form; and
58-21 provided further that, without the necessity of notice or citation
58-22 of any character, an order of appointment be made and entered and
58-23 that such non-resident applicant or applicants thus appointed,
58-24 qualify by making and filing oath and bond, subject to the court's
58-25 approval in all respects the same as required of residents thus
58-26 appointed, and file with the court a power of attorney appointing a
58-27 resident agent to accept service of process in all actions or
59-1 proceedings with respect to the estate, whereupon the clerk shall
59-2 issue the letters of guardianship to such non-resident guardian or
59-3 co-guardians. Guardians so qualified shall file inventory and
59-4 appraisement of the estate of the ward in this State subject to the
59-5 jurisdiction of the court, as in ordinary cases, and shall be
59-6 subject to and controlled by all applicable provisions of this Code
59-7 with respect to the handling and settlement of estates by domestic
59-8 guardians.>
59-9 <(b) Domestic Guardian of Non-Resident. When a non-resident
59-10 minor or incompetent owns property in this State, guardianship of
59-11 such estate may be granted when it is made to appear that a
59-12 necessity exists therefor, in like manner as if such minor or
59-13 incompetent resided in this State. The court making the grant of
59-14 such guardianship shall be in the county in which the principal
59-15 estate of the ward is situated, and said court shall take all such
59-16 action and make all such orders with respect to the estate of the
59-17 ward, for the maintenance, support and care, or the education, if
59-18 necessary, of the ward, out of the proceeds of such ward's estate,
59-19 in like manner as if the ward were a resident of this State, and
59-20 guardianship of the person and estate of the ward had been granted
59-21 by said court, and the ward had been sent abroad by the court for
59-22 education or treatment. In the event there be a qualified
59-23 non-resident guardian of such estate, who later desires to qualify
59-24 in this State, as hereinabove set out, such non-resident guardian
59-25 may do so, and it shall be grounds for closing the resident
59-26 guardianship.>
59-27 <Sec. 125. ><Validation Of Certain Letters Of Guardianship
60-1 Heretofore Issued><. All present existing letters of guardianship
60-2 heretofore issued to nonresident guardians with or without the
60-3 procedure, in whole or in part, and with or without notices and
60-4 citations required in cases of resident guardians, are hereby
60-5 validated as of their respective dates, in so far as the absence of
60-6 such procedure, notices, and citations are concerned, as are also
60-7 all otherwise valid conveyances, mineral leases, and other acts of
60-8 such guardians so qualified and acting in connection therewith
60-9 under supporting orders of county and probate courts of this state;
60-10 provided, however, that this provision shall not be applicable to
60-11 any letters, conveyance, lease, or other act of such guardian which
60-12 is involved in any lawsuit pending in this state on the effective
60-13 date of this Code wherein the absence of such procedure or of such
60-14 notices or citations is an issue.>
60-15 <Sec. 126. ><Removal Of Ward's Property From The State><. Upon
60-16 the recovery of the property of the ward, if it be personal
60-17 property, any non-resident guardian, whether qualified under
60-18 provisions of this Code or not, may remove the same out of the
60-19 state, unless such removal would conflict with the tenure of such
60-20 property, or with the terms and limitations under which it is held;
60-21 but there shall be no removal from the state of any of such
60-22 property until all debts known to exist against the estate in this
60-23 state have been paid, or until the payment of such debts has been
60-24 secured by bond payable to and approved by the judge of the court
60-25 in which the proceedings are pending in this state.>
60-26 <Sec. 127. ><Delivery Of Property><. Any resident executor,
60-27 administrator, or guardian, having any of the estate of a ward, may
61-1 be ordered by the court to deliver the same to a duly qualified and
61-2 acting non-resident guardian of such ward.>
61-3 <Sec. 127A. ><Guardianship of Person Missing on Public
61-4 Service><. (a) Not less than six months after a person is reported
61-5 by an executive department of the United States to be a prisoner of
61-6 war or missing on the public service of the United States, any
61-7 person may file a written application for the appointment of a
61-8 guardian of the person of the missing person in the court of the
61-9 county of residence of the missing person's spouse or, if there is
61-10 no spouse, in the county of residence of a parent or child of the
61-11 missing person, or if there is no parent or child, in the county of
61-12 residence of the missing person's next of kin.>
61-13 <(b) The application shall state:>
61-14 <(1) the name, sex, and last known residence of the
61-15 person for whom the appointment of a guardian is sought;>
61-16 <(2) the executive department issuing the report, the
61-17 date of the report, and the last known whereabouts of the missing
61-18 person;>
61-19 <(3) the names and addresses of the missing person's
61-20 spouse, children, and parents or, if there is no spouse, child, or
61-21 parent, the name and address of the person's next of kin and facts
61-22 that show that the court has venue of the proceeding;>
61-23 <(4) the reason for the appointment and the interest
61-24 of the applicant in the appointment; and>
61-25 <(5) the name, relationship, and address of the person
61-26 whom the applicant desires to have appointed as guardian.>
61-27 <(c) The court shall appoint an attorney to represent the
62-1 interests of the missing person and shall allow the attorney a
62-2 reasonable fee, not to exceed $25, for his services to be taxed as
62-3 part of the costs.>
62-4 <(d) The attorney appointed to represent the interest of the
62-5 missing person shall be personally served with citation to appear
62-6 and answer the application for the appointment of a guardian. The
62-7 clerk of the court shall issue a notice setting forth that an
62-8 application has been filed for the guardianship of the person of
62-9 the missing person and by whom the application is made. The notice
62-10 shall cite all persons interested in the welfare of that person to
62-11 appear at the time and place stated in the notice and contest the
62-12 application, if they so desire. The notice shall be served by
62-13 posting, and the sheriff or other officer posting the notice shall
62-14 return the original, signed officially, stating thereon in writing
62-15 the time and place that he posted the copy of the notice. In
62-16 addition to posting the notice, a copy of the notice shall be
62-17 mailed by registered or certified mail to the spouse, to each
62-18 child, to each parent of the missing person, and to any other
62-19 person that the court deems appropriate.>
62-20 <(e) Any person has the right to appear and contest the
62-21 appointment of a particular person as guardian of the missing
62-22 person, or to contest any guardianship proceeding which he deems to
62-23 be injurious to the missing person, or to commence a guardianship
62-24 proceeding which he deems beneficial to the missing person.>
62-25 <(f) Before appointing a guardian, the court must find:>
62-26 <(1) that the person has been reported missing by an
62-27 executive department of the United States and still is missing;>
63-1 <(2) that the court has venue of the proceeding and
63-2 that there is not an existing guardianship of this person;>
63-3 <(3) that the person applying for appointment as the
63-4 guardian is a proper person to act as the guardian; and>
63-5 <(4) that the rights of the missing person will be
63-6 protected by the appointment of the guardian.>
63-7 <(g) After the hearing, the court shall dismiss the
63-8 application or enter an order appointing a guardian to protect the
63-9 rights of the missing person and may impose in the order any
63-10 conditions or restrictions it deems necessary to protect the rights
63-11 of the missing person. In appointing the guardian, the court shall
63-12 give preference to the spouse of the missing person, and if there
63-13 is no spouse shall give preference to parents and children of the
63-14 missing person.>
63-15 <(h) The jurisdiction of the court over the guardianship is
63-16 continuing. If the missing person returns, on motion of any
63-17 interested person after a notice, stating that the motion has been
63-18 filed and specifying the date of a hearing, has been issued and
63-19 served on the formerly missing person as in other cases, the court
63-20 shall amend or vacate the original order of guardianship. A copy
63-21 of the motion shall accompany the notice.>
63-22 SECTION 9. Subsections (b) and (c), Section 5, Texas Probate
63-23 Code, are amended to read as follows:
63-24 (b) In those counties where there is no statutory probate
63-25 court, county court at law or other statutory court exercising the
63-26 jurisdiction of a probate court, all applications, petitions and
63-27 motions regarding probate, administrations, guardianships, <limited
64-1 guardianships,> and mental illness matters shall be filed and heard
64-2 in the county court, except that in contested probate matters, the
64-3 judge of the county court may on his own motion (or shall on the
64-4 motion of any party to the proceeding, according to the motion)
64-5 request as provided by Section 25.0022, Government Code, the
64-6 assignment of a statutory probate judge to hear the contested
64-7 portion of the proceeding, or transfer the contested portion of the
64-8 proceeding to the district court, which may then hear contested
64-9 matter as if originally filed in district court. The county court
64-10 shall continue to exercise jurisdiction over the management of the
64-11 estate with the exception of the contested matter until final
64-12 disposition of the contested matter is made by the assigned judge
64-13 or the district court. In contested matters transferred to the
64-14 district court in those counties, the district court, concurrently
64-15 with the county court, shall have the general jurisdiction of a
64-16 probate court. Upon resolution of all pending contested matters,
64-17 the contested portion of the probate proceeding shall be
64-18 transferred by the district court to the county court for further
64-19 proceedings not inconsistent with the orders of the district court.
64-20 If a contested portion of the proceeding is transferred to a
64-21 district court under this subsection, the clerk of the district
64-22 court may perform in relation to the transferred portion of the
64-23 proceeding any function a county clerk may perform in that type of
64-24 contested proceeding.
64-25 (c) In those counties where there is a statutory probate
64-26 court, county court at law, or other statutory court exercising the
64-27 jurisdiction of a probate court, all applications, petitions and
65-1 motions regarding probate, administrations, guardianships, <limited
65-2 guardianships,> and mental illness matters shall be filed and heard
65-3 in such courts and the constitutional county court, rather than in
65-4 the district courts, unless otherwise provided by the legislature,
65-5 and the judges of such courts may hear any of such matters sitting
65-6 for the judge of any of such courts. In contested probate matters,
65-7 the judge of the constitutional county court may on his own motion,
65-8 and shall on the motion of any party to the proceeding, transfer
65-9 the proceeding to the statutory probate court, county court at law,
65-10 or other statutory court exercising the jurisdiction of a probate
65-11 court, which may then hear the proceeding as if originally filed in
65-12 such court.
65-13 SECTION 10. Subsections (a) and (b), Section 131, Texas
65-14 Probate Code, are amended to read as follows:
65-15 (a) Necessity of Appointment. Whenever it appears to the
65-16 county judge that the interest of any minor, incapacitated person
65-17 as defined in Section 108 <130A> of this code, or common or
65-18 habitual drunkard, and his or her estate, or either of them,
65-19 requires immediate appointment of a personal representative, he
65-20 shall, by written order, appoint a suitable temporary
65-21 representative, with such limited powers as the circumstances of
65-22 the case require, and such appointment may be made permanent, as
65-23 herein provided.
65-24 (b) A written application for the appointment of a temporary
65-25 guardian may be filed prior to the court's appointment of such
65-26 guardian but in no case shall such application be filed later than
65-27 the end of the next business day of the court after appointment of
66-1 such temporary guardian. The application shall state:
66-2 (i) the name and address of the subject of the
66-3 guardianship proceeding;
66-4 (ii) the danger to the person or property alleged to
66-5 be imminent;
66-6 (iii) the type of appointment and the particular
66-7 protection and assistance being requested;
66-8 (iv) the facts and reasons supporting the allegations
66-9 and requests;
66-10 (v) the name, address, and qualification of the
66-11 proposed temporary guardian;
66-12 (vi) the name, address, and interest of the applicant;
66-13 <and>
66-14 (vii) the social security numbers of the applicant and
66-15 respondent; and
66-16 (viii) if applicable, that the proposed temporary
66-17 guardian is a private professional guardian who has complied with
66-18 the requirements of Section 126 of this code.
66-19 SECTION 11. Section 185, Texas Probate Code, is amended to
66-20 read as follows:
66-21 Sec. 185. ISSUANCE AND RENEWAL OF LETTERS OF GUARDIANSHIP.
66-22 (a) When a person appointed guardian has qualified as such, by
66-23 taking the oath and giving the bond required by law, if bond be
66-24 required, the clerk shall issue to him a certificate under seal,
66-25 stating the fact of such appointment and qualification and the date
66-26 thereof and the date of expiration, which certificate shall
66-27 constitute letters of guardianship, and be evidence of the
67-1 authority of such person to act as guardian.
67-2 (b) Letters of guardianship expire one year and 90 days
67-3 after the date of issuance unless renewed.
67-4 (c) The clerk shall renew letters of guardianship on the
67-5 receipt and approval by the court of the guardian's annual
67-6 accounting. If the guardian's annual accounting is disapproved,
67-7 the clerk may not issue further letters of guardianship to that
67-8 guardian relating to the ward or the ward's estate unless ordered
67-9 by the court.
67-10 SECTION 12. Subsections (a) and (b), Section 222, Texas
67-11 Probate Code, are amended to read as follows:
67-12 (a) Without Notice. (1) The court, on its own motion or on
67-13 motion of any interested person, and without notice, may remove any
67-14 personal representative, appointed under provisions of this Code,
67-15 who:
67-16 (A) <(1)> Neglects to qualify in the manner and
67-17 time required by law; <or>
67-18 (B) <(2)> Fails to return within ninety days
67-19 after qualification, unless such time is extended by order of the
67-20 court, an inventory of the property of the estate and list of
67-21 claims that have come to his knowledge; <or>
67-22 (C) <(3)> Having been required to give a new
67-23 bond, fails to do so within the time prescribed; <or>
67-24 (D) <(4)> Absents himself from the State for a
67-25 period of three months at one time without permission of the court,
67-26 or removes from the State; <or>
67-27 (E) <(5)> Cannot be served with notices or other
68-1 processes by reason of the fact that his whereabouts are unknown,
68-2 or by reason of the fact that he is eluding service;
68-3 (F) Has misapplied, embezzled, or removed from
68-4 the State, or is about to misapply, embezzle, or remove from the
68-5 State, all or any part of the property committed to the guardian's
68-6 care; or
68-7 (G) Has cruelly treated a ward, or has neglected
68-8 to educate or maintain the ward as liberally as the means of the
68-9 ward and the condition of the ward's estate permit.
68-10 (2) The court may remove a personal representative
68-11 under Paragraph (F) or (G), Subdivision (1), of this subsection
68-12 only on the presentation of clear and convincing evidence given
68-13 under oath.
68-14 (b) With Notice. The court may remove a personal
68-15 representative on its own motion, or on the complaint of any
68-16 interested person, after the personal representative has been cited
68-17 by personal service to answer at a time and place fixed in the
68-18 notice, when:
68-19 (1) Sufficient grounds appear to support belief that
68-20 he has misapplied, embezzled, or removed from the state, or that he
68-21 is about to misapply, embezzle, or remove from the state, all or
68-22 any part of the property committed to his care;
68-23 (2) He fails to return any account which is required
68-24 by law to be made;
68-25 (3) He fails to obey any proper order of the court
68-26 having jurisdiction with respect to the performance of his duties;
68-27 (4) He is proved to have been guilty of gross
69-1 misconduct, or mismanagement in the performance of his duties;
69-2 (5) He becomes an incompetent, or is sentenced to the
69-3 penitentiary, or from any other cause becomes incapable of properly
69-4 performing the duties of his trust;
69-5 (6) As executor or administrator, he fails to make a
69-6 final settlement within three years after the grant of letters,
69-7 unless the time be extended by the court upon a showing of
69-8 sufficient cause supported by oath;
69-9 (7) As executor or administrator, he fails to timely
69-10 file the notice required by Section 128A of this code; <or>
69-11 (8) As guardian of the person, he cruelly treats the
69-12 ward, or neglects to educate or maintain the ward as liberally as
69-13 the means of such ward and the condition of his estate permit; or
69-14 (9) He fails to comply with the requirements of
69-15 Section 126 of this code.
69-16 SECTION 13. Part 3, Chapter VII, Texas Probate Code, is
69-17 amended by adding Section 222A to read as follows:
69-18 Sec. 222A. REINSTATEMENT AFTER REMOVAL. (a) Not later than
69-19 the 10th day after the date the court signs the order of removal, a
69-20 personal representative who is removed under Subsection (a)(1)(F)
69-21 or (G), Section 222, of this code may file an application with the
69-22 court for a hearing to determine whether the personal
69-23 representative should be reinstated.
69-24 (b) On the filing of an application for a hearing under this
69-25 section, the court clerk shall issue a notice stating that the
69-26 application for reinstatement was filed, the name of the ward or
69-27 decedent, and the name of the applicant. The clerk shall issue the
70-1 notice to the applicant, the ward, a person interested in the
70-2 welfare of the ward, the decedent's estate, or the ward's estate,
70-3 and, if applicable, to a person who has control of the care and
70-4 custody of the ward. The notice must cite all persons interested
70-5 in the estate or welfare of the ward to appear at the time and
70-6 place stated in the notice if they wish to contest the application.
70-7 (c) If, at the conclusion of a hearing under this section,
70-8 the court is satisfied by a preponderance of the evidence that the
70-9 applicant did not engage in the conduct that directly led to the
70-10 applicant's removal, the court shall set aside an order appointing
70-11 a successor representative, if any, and shall enter an order
70-12 reinstating the applicant as personal representative of the ward or
70-13 estate.
70-14 (d) If the court sets aside the appointment of a successor
70-15 representative under this section, the court may require the
70-16 successor representative to prepare and file, under oath, an
70-17 accounting of the estate and to detail the disposition the
70-18 successor has made of the property of the estate.
70-19 SECTION 14. Subsection (b), Section 241, Texas Probate Code,
70-20 is amended to read as follows:
70-21 (b) Compensation of Guardians. The court may authorize
70-22 compensation for a guardian serving as guardian of the person alone
70-23 from available funds of the ward's estate. The court shall set the
70-24 compensation in an amount not exceeding ______ percent (____%) of
70-25 the ward's income, or a flat fee of $______ a ______ <A guardian of
70-26 the person alone is entitled to no compensation>. The guardian or
70-27 the temporary guardian of the estate, or of the person and estate,
71-1 shall not be entitled to, or receive, any fee or commission on the
71-2 estate of the ward when it is first delivered to him; but shall be
71-3 entitled to a fee of five percent <per cent> (5%) on the gross
71-4 income of the ward's estate and five percent <per cent> (5%) on all
71-5 money paid out on a finding by the court that the guardian has
71-6 taken care of and managed the estate in compliance with the
71-7 standards of this code. The term "money paid out" shall not be
71-8 construed to include any money loaned or invested or paid over on
71-9 the settlement of the guardianship. If the guardian manages a
71-10 farm, ranch, factory, or other business of his ward, or if the
71-11 compensation as calculated above is unreasonably low, the court may
71-12 allow him reasonable compensation for his services. The court may,
71-13 on application of an interested person or on its own motion, deny a
71-14 fee allowed by this subsection in whole or in part if:
71-15 (1) the court finds that the guardian has not taken
71-16 care of and managed estate property prudently; or
71-17 (2) the guardian has been removed under Section 222 of
71-18 this code.
71-19 SECTION 15. Subsection (c), Section 399, Texas Probate Code,
71-20 is amended to read as follows:
71-21 (c) Guardians of the Person. (1) The guardian of the
71-22 person, when there is a separate guardian of the estate, shall at
71-23 the expiration of twelve (12) months from the date of his
71-24 qualification and receipt of letters, and annually thereafter,
71-25 return to the court his sworn account showing each item of receipts
71-26 and disbursements for the support and maintenance of the ward, his
71-27 education when necessary, and support and maintenance of the ward's
72-1 dependents, when authorized by order of court.
72-2 (2) The guardian of the person, whether or not there
72-3 is a separate guardian of the estate, shall submit to the court an
72-4 annual report by sworn affidavit that contains the following
72-5 information:
72-6 a. the guardian's current name, address, and
72-7 phone number;
72-8 b. the ward's current:
72-9 (i) name, address, and phone number; and
72-10 (ii) age and date of birth;
72-11 c. the type of home in which the ward resides,
72-12 described as the ward's own; a nursing, guardian's, foster, or
72-13 boarding home; a relative's home, and the ward's relationship to
72-14 the relative; a hospital or medical facility; or other type of
72-15 residence;
72-16 d. the length of time the ward has resided in
72-17 the present home and, if there has been a change in the ward's
72-18 residence in the past year, the reason for the change;
72-19 e. the date the guardian most recently saw the
72-20 ward, and how frequently the guardian has seen the ward in the past
72-21 year;
72-22 f. a statement indicating whether or not the
72-23 guardian has possession or control of the ward's estate;
72-24 g. the following statements concerning the
72-25 ward's health during the past year:
72-26 (i) whether the ward's mental health has
72-27 improved, deteriorated, or remained unchanged, and a description if
73-1 there has been a change; and
73-2 (ii) whether the ward's physical health
73-3 has improved, deteriorated, or remained unchanged, and a
73-4 description if there has been a change;
73-5 h. a statement concerning whether or not the
73-6 ward has regular medical care, and the ward's treatment or
73-7 evaluation by any of the following persons during the last year,
73-8 including the name of that person, and the treatment involved:
73-9 (i) a physician;
73-10 (ii) a psychiatrist, psychologist, or
73-11 other mental health care provider;
73-12 (iii) a dentist;
73-13 (iv) a social or other caseworker; or
73-14 (v) another individual who provided
73-15 treatment;
73-16 i. a description of the ward's activities during
73-17 the past year, including recreational, educational, social, and
73-18 occupational activities, or if no activities are available or if
73-19 the ward is unable or has refused to participate in them, a
73-20 statement to that effect;
73-21 j. the guardian's evaluation of the ward's
73-22 living arrangements as excellent, average, or below average,
73-23 including an explanation if the conditions are below average;
73-24 k. the guardian's evaluation of whether the ward
73-25 is content or unhappy with the ward's living arrangements;
73-26 l. the guardian's evaluation of unmet needs of
73-27 the ward;
74-1 m. a statement of whether or not the guardian's
74-2 power should be increased, decreased, or unaltered, including an
74-3 explanation if a change is recommended; and
74-4 n. any additional information the guardian
74-5 desires to share with the court regarding the ward <All who are
74-6 guardians of the person shall include in their reports facts
74-7 concerning each ward's physical welfare, his well-being, and his
74-8 progress in education, if the latter be pertinent>.
74-9 (3) If the ward is deceased, the guardian shall
74-10 provide the court with the date and place of death, if known, in
74-11 lieu of the information about the ward otherwise required to be
74-12 provided in the annual report.
74-13 (4) Unless the judge is satisfied that the facts
74-14 stated are true, he shall issue such orders as are necessary for
74-15 the best interest of the ward.
74-16 SECTION 16. Sections 7 and 130, Texas Probate Code, are
74-17 repealed.
74-18 SECTION 17. Part 5, Chapter V, Texas Probate Code, is
74-19 repealed.
74-20 SECTION 18. Chapter IX, Texas Probate Code, is repealed.
74-21 SECTION 19. A court may modify any guardianship in effect on
74-22 September 1, 1993, to conform with the requirements of the Texas
74-23 Probate Code, as amended by this Act, on the court's own motion or
74-24 on application by the ward, the guardian, or any other interested
74-25 person or entity.
74-26 SECTION 20. This Act takes effect September 1, 1993.
74-27 SECTION 21. Except as provided by Section 19 of this Act,
75-1 the change in law made by this Act applies only to proceedings for
75-2 the appointment of a guardian instituted on or after the effective
75-3 date of this Act. Proceedings for the appointment of a guardian
75-4 instituted before the effective date of this Act are governed by
75-5 the law in effect when the proceedings were instituted, and the
75-6 former law is continued in effect for that purpose.
75-7 SECTION 22. Notwithstanding Section 185(b), Texas Probate
75-8 Code, as added by this Act, a letter of guardianship issued before
75-9 the effective date of this Act expires, unless renewed as provided
75-10 by Section 185(c), Texas Probate Code, as added by this Act, on the
75-11 date of the required annual accounting immediately following the
75-12 effective date of this Act.
75-13 SECTION 23. (a) Not later than October 1, 1993, the
75-14 commissioner of health and human services shall appoint an advisory
75-15 committee on development of a uniform assessment tool composed of:
75-16 (1) one representative each from the Texas Department
75-17 of Health, Texas Department of Human Services, and Texas Department
75-18 of Mental Health and Mental Retardation;
75-19 (2) one licensed psychologist who specializes in the
75-20 treatment of persons with mental retardation;
75-21 (3) two members of a private association of persons
75-22 who advocate on the behalf of or in the interest of persons with
75-23 mental retardation or persons with a developmental disability;
75-24 (4) one parent of a person with mental retardation or
75-25 a developmental disability; and
75-26 (5) two professionals who work with persons who have a
75-27 developmental disability.
76-1 (b) The committee shall designate one member to serve as
76-2 presiding officer.
76-3 (c) The committee shall develop a uniform assessment tool to
76-4 be used by the staff of a facility regulated or operated by the
76-5 Texas Department of Health, Texas Department of Human Services, or
76-6 Texas Department of Mental Health and Mental Retardation to assess
76-7 the capacity of an elderly person, a person with mental
76-8 retardation, or a person with a developmental disability to make
76-9 decisions concerning the person's own welfare and financial
76-10 affairs, including the person's:
76-11 (1) need for a guardianship and the type of
76-12 guardianship that is appropriate for the person;
76-13 (2) ability to care for the person's own physical
76-14 health or to manage the person's own financial affairs;
76-15 (3) ability to provide food, clothing, or shelter for
76-16 himself or herself;
76-17 (4) decision-making ability; and
76-18 (5) ability to communicate a decision.
76-19 (d) Each agency represented on the committee shall provide
76-20 the committee with staff support.
76-21 (e) Members of the committee receive no compensation but are
76-22 entitled to reimbursement for reasonable expenses incurred in
76-23 performing official duties in accordance with the General
76-24 Appropriations Act.
76-25 (f) The committee shall make its recommendations to the
76-26 commissioner of health and human services, Texas Department of
76-27 Human Services, Texas Department of Health, and Texas Department of
77-1 Mental Health and Mental Retardation not later than June 1, 1994.
77-2 SECTION 24. (a) The Texas Department of Health, Texas
77-3 Department of Human Services, and Texas Department of Mental Health
77-4 and Mental Retardation shall adopt the memorandum of understanding
77-5 prescribed by Section 533.044, Health and Safety Code, as added by
77-6 this Act, not later than September 1, 1994.
77-7 (b) In adopting the memorandum of understanding, the Texas
77-8 Department of Health, Texas Department of Human Services, and Texas
77-9 Department of Mental Health and Mental Retardation shall consider
77-10 the recommendations of the committee appointed under Section 23 of
77-11 this Act.
77-12 SECTION 25. A private professional guardian who is serving
77-13 as guardian of a ward on the effective date of this Act shall apply
77-14 for certification under Section 126, Texas Probate Code, as added
77-15 by this Act, not later than October 1, 1993.
77-16 SECTION 26. The change in law made by Section 14 of this Act
77-17 applies only to compensation for guardians appointed on or after
77-18 that date. Compensation for a guardian appointed before the
77-19 effective date of this Act is covered by the law in effect when the
77-20 guardian was appointed, and the former law is continued in effect
77-21 for this purpose.
77-22 SECTION 27. The change in law made by Section 15 of this Act
77-23 applies only to reports submitted to the court on or after January
77-24 1, 1994. A report submitted before the effective date of this Act
77-25 is covered by the law in effect at the time the report is
77-26 submitted, and the former law is continued in effect for that
77-27 purpose.
78-1 SECTION 28. The change in law made by Section 18 of this Act
78-2 applies only to the appointment of a guardian based on information
78-3 that is filed under Section 415, Texas Probate Code, on or after
78-4 the effective date of this Act. An appointment of a guardian based
78-5 on information that is filed before the effective date of this Act
78-6 is governed by the law in effect on the date the information was
78-7 filed, and the former law is continued in effect for that purpose.
78-8 SECTION 29. The importance of this legislation and the
78-9 crowded condition of the calendars in both houses create an
78-10 emergency and an imperative public necessity that the
78-11 constitutional rule requiring bills to be read on three several
78-12 days in each house be suspended, and this rule is hereby suspended.