1-1 By: Moncrief, Harris of Tarrant, Zaffirini S.B. No. 236
1-2 (In the Senate - Filed February 2, 1993; February 2, 1993,
1-3 read first time and referred to Committee on Jurisprudence;
1-4 April 20, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; April 20, 1993,
1-6 sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Henderson x
1-10 Harris of Tarrant x
1-11 Brown x
1-12 Harris of Dallas x
1-13 Luna x
1-14 Parker x
1-15 West x
1-16 COMMITTEE SUBSTITUTE FOR S.B. No. 236 By: Harris of Tarrant
1-17 A BILL TO BE ENTITLED
1-18 AN ACT
1-19 relating to guardianships for incapacitated persons; providing a
1-20 penalty.
1-21 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-22 SECTION 1. Subchapter A, Chapter 22, Government Code, is
1-23 amended by adding Section 22.013 to read as follows:
1-24 Sec. 22.013. JUDICIAL INSTRUCTION RELATED TO GUARDIANSHIP
1-25 ISSUES. (a) The supreme court shall provide a course of
1-26 instruction that relates to issues that arise in guardianship cases
1-27 for judges involved in those cases.
1-28 (b) The supreme court shall adopt the rules necessary to
1-29 accomplish the purposes of this section.
1-30 (c) The instruction must include information about:
1-31 (1) statutory and case law relating to guardianships;
1-32 (2) the aging process and the nature of disabilities;
1-33 (3) the requirements of the Americans with
1-34 Disabilities Act (42 U.S.C. Section 12101 et seq.) and related
1-35 case and statutory law, rules, and compliance methods;
1-36 (4) the principles of equal access and accommodation;
1-37 (5) the use of community resources for the disabled;
1-38 and
1-39 (6) avoidance of stereotypes through a focus on
1-40 people's individual abilities, support needs, and inherent
1-41 individual value.
1-42 (d) The instruction may include information about:
1-43 (1) substantive areas of law concerning the needs of
1-44 elderly persons and persons with disabilities;
1-45 (2) barriers to physical access and methods to
1-46 overcome those barriers;
1-47 (3) communication needs of elderly persons and persons
1-48 with disabilities and the technology available to provide access to
1-49 communication;
1-50 (4) duties and responsibilities of guardians,
1-51 guardians ad litem, attorneys, and court personnel in guardianship
1-52 proceedings;
1-53 (5) standard definitions and procedures for
1-54 determining incapacity;
1-55 (6) standards for surrogate decision making;
1-56 (7) the doctrine of the least-restrictive alternative;
1-57 (8) the dispute resolution process, especially its
1-58 application to elderly persons and persons with disabilities; and
1-59 (9) successful programs and funding efforts for
1-60 addressing the court-related needs of elderly persons and persons
1-61 with disabilities.
1-62 SECTION 2. Subchapter B, Chapter 25, Government Code, is
1-63 amended by adding Section 25.0025 to read as follows:
1-64 Sec. 25.0025. COURT INVESTIGATORS. (a) The judge of a
1-65 statutory probate court shall employ a court investigator. The
1-66 commissioners court may authorize additional court investigators if
1-67 necessary.
1-68 (b) The commissioners court shall set the salary of a court
2-1 investigator.
2-2 (c) On the filing of an application for guardianship and
2-3 before the appointment of an attorney ad litem, a court
2-4 investigator shall investigate the circumstances alleged in the
2-5 application to determine whether a less restrictive alternative
2-6 than guardianship is appropriate.
2-7 (d)(1) A court investigator shall:
2-8 (A) supervise the court visitor program
2-9 established under Section 127, Texas Probate Code;
2-10 (B) investigate a complaint received from any
2-11 person about a guardianship and report to the judge, if necessary;
2-12 and
2-13 (C) perform other duties as assigned by the
2-14 judge.
2-15 (2) Nothing herein shall supersede any duty or
2-16 obligation of another to report or investigate abuse or neglect
2-17 under any statute of this state.
2-18 (e) After making an investigation under Subsection (c) or
2-19 (d), a court investigator shall file with the court a report of the
2-20 court investigator's findings and conclusions. Disclosure to a
2-21 jury of the contents of a court investigator's report is subject to
2-22 the Texas Rules of Civil Evidence. In a contested case, the court
2-23 investigator shall provide copies of the report to the attorneys
2-24 for the parties before the earlier of:
2-25 (1) the seventh day after the day the report is
2-26 completed; or
2-27 (2) the sixth day before the day the trial is
2-28 scheduled to begin.
2-29 SECTION 3. Subchapter C, Chapter 72, Government Code, is
2-30 amended by adding Section 72.028 to read as follows:
2-31 Sec. 72.028. OVERSIGHT OF COURT VISITOR PROGRAMS OF AND
2-32 COURT INVESTIGATORS EMPLOYED BY STATUTORY PROBATE COURTS. (a) The
2-33 office shall develop methods to oversee each statutory probate
2-34 court's:
2-35 (1) establishment and maintenance of a court visitor
2-36 program as provided by Section 127, Texas Probate Code; and
2-37 (2) employment of a court investigator as provided by
2-38 Section 25.0025.
2-39 (b) The director shall notify the State Commission on
2-40 Judicial Conduct in writing if the office determines that a judge
2-41 of a statutory probate court has failed to:
2-42 (1) establish and maintain a court visitor program; or
2-43 (2) employ a court investigator.
2-44 SECTION 4. Subchapter H, Chapter 81, Government Code, is
2-45 amended by adding Section 81.114 to read as follows:
2-46 Sec. 81.114. ATTORNEY INSTRUCTION RELATED TO GUARDIANSHIP
2-47 ISSUES. (a) The state bar shall provide a course of instruction
2-48 for attorneys who represent parties in guardianship cases or who
2-49 serve as court-appointed guardians.
2-50 (b) The state bar shall adopt the rules necessary to
2-51 accomplish the purposes of this section.
2-52 (c) The instruction must include information about:
2-53 (1) statutory and case law relating to guardianships;
2-54 (2) the aging process and the nature of disabilities;
2-55 (3) the requirements of the Americans with
2-56 Disabilities Act (42 U.S.C. Section 12101 et seq.) and related
2-57 case and statutory law, rules, and compliance methods;
2-58 (4) the principles of equal access and accommodation;
2-59 (5) the use of community resources for the disabled;
2-60 and
2-61 (6) avoidance of stereotypes through a focus on
2-62 people's individual abilities, support needs, and inherent
2-63 individual value.
2-64 (d) The instruction may include information about:
2-65 (1) substantive areas of law concerning the needs of
2-66 elderly persons and persons with disabilities;
2-67 (2) barriers to physical access and methods to
2-68 overcome those barriers;
2-69 (3) communication needs of elderly persons and persons
2-70 with disabilities and the technology available to provide access to
3-1 communication;
3-2 (4) duties and responsibilities of guardians,
3-3 guardians ad litem, attorneys, and court personnel in guardianship
3-4 proceedings;
3-5 (5) standard definitions and procedures for
3-6 determining incapacity;
3-7 (6) standards for surrogate decision making;
3-8 (7) the doctrine of the least-restrictive alternative;
3-9 (8) the dispute resolution process, especially its
3-10 application to elderly persons and persons with disabilities; and
3-11 (9) successful programs and funding efforts for
3-12 addressing the court-related needs of elderly persons and persons
3-13 with disabilities.
3-14 SECTION 5. Subchapter B, Chapter 533, Health and Safety
3-15 Code, is amended by adding Section 533.044 to read as follows:
3-16 Sec. 533.044. MEMORANDUM OF UNDERSTANDING ON ASSESSMENT
3-17 TOOLS. (a) The department, Texas Department of Health, and Texas
3-18 Department of Human Services by rule shall adopt a joint memorandum
3-19 of understanding that requires the use of a uniform assessment tool
3-20 to assess whether an elderly person, a person with mental
3-21 retardation, a person with a developmental disability, or a person
3-22 who is suspected of being a person with mental retardation or a
3-23 developmental disability and who is receiving services in a
3-24 facility regulated or operated by the department, Texas Department
3-25 of Health, or Texas Department of Human Services needs a guardian
3-26 of the person or estate, or both.
3-27 (b) The memorandum must prescribe:
3-28 (1) the facilities that must use the assessment; and
3-29 (2) the circumstances in which the facilities must use
3-30 the assessment.
3-31 (c) Each agency shall review and modify the memorandum as
3-32 necessary not later than the last month of each state fiscal year.
3-33 SECTION 6. Section 48.021, Human Resources Code, is amended
3-34 by adding Subsection (e) to read as follows:
3-35 (e) The department shall file an application under Section
3-36 110A or 131(b) of the Texas Probate Code to be appointed guardian
3-37 of the person and estate of an individual who is a minor, is a
3-38 conservatee of the department, and, because of a physical or mental
3-39 condition, will be substantially unable to provide food, clothing,
3-40 or shelter for himself or herself, to care for the individual's own
3-41 physical health, or to manage the individual's own financial
3-42 affairs when the individual becomes an adult.
3-43 SECTION 7. Section 3, Texas Probate Code, is amended by
3-44 adding Subdivision (mm) to read as follows:
3-45 (mm) "Private professional guardian" means a person
3-46 who is engaged in the business of providing guardianship services.
3-47 SECTION 8. Part 3, Chapter V, Texas Probate Code, is amended
3-48 to read as follows:
3-49 PART 3. PERMANENT GUARDIANSHIP PROCEEDINGS
3-50 SUBPART A. GENERAL PROVISIONS
3-51 Sec. 108. DEFINITIONS. In this part:
3-52 (1) "Guardianship program" means a local, county, or
3-53 regional program that provides guardianship and related services to
3-54 an incapacitated person or other person who needs assistance in
3-55 making decisions concerning the person's own welfare or financial
3-56 affairs.
3-57 (2) "Incapacitated person" means:
3-58 (A) a minor;
3-59 (B) an adult individual who, because of a
3-60 physical or mental condition, is substantially unable to provide
3-61 food, clothing, or shelter for himself or herself, to care for the
3-62 individual's own physical health, or to manage the individual's own
3-63 financial affairs;
3-64 (C) a missing person; or
3-65 (D) a person who must have a guardian appointed
3-66 to receive funds due the person from any governmental source.
3-67 (3) "Missing person" means a person reported by an
3-68 executive department of the United States to be a prisoner of war
3-69 or missing in the course of public service to the United States.
3-70 (4) "Person" includes natural persons, corporations,
4-1 and guardianship programs.
4-2 (5) "Proposed ward" means a person alleged to be
4-3 incapacitated in a guardianship proceeding.
4-4 Sec. 108A. POLICY; PURPOSE OF GUARDIANSHIP. A court may
4-5 appoint a guardian only to the extent required by an incapacitated
4-6 person's actual mental or physical limitations and only as
4-7 necessary to promote and protect the well-being of the person. If
4-8 the person is not a minor, the court may not use age as the sole
4-9 factor in determining whether to appoint a guardian for the person.
4-10 The court shall design the guardianship to encourage the
4-11 development or maintenance of maximum self-reliance and
4-12 independence in the incapacitated person.
4-13 Sec. 108B. LAWS APPLICABLE TO GUARDIANSHIPS. (a) To the
4-14 extent applicable and not inconsistent with other provisions of
4-15 this code, the laws and rules governing estates of decedents apply
4-16 to and govern guardianships.
4-17 (b) A reference in other sections of this code or in other
4-18 law to a person who is mentally, physically, or legally
4-19 incompetent, a person who is judicially declared incompetent, an
4-20 incompetent or an incompetent person, a person of unsound mind, or
4-21 a habitual drunkard means an incapacitated person.
4-22 SUBPART B. APPLICATION AND HEARING
4-23 TO APPOINT GUARDIAN
4-24 Sec. 109. JURISDICTION. A court exercising original probate
4-25 jurisdiction may appoint a guardian under this part for the person
4-26 or estate, or both, of an incapacitated person.
4-27 Sec. 109A. VENUE. (a) Except as otherwise authorized by
4-28 this section, a proceeding for the appointment of a guardian for
4-29 the person or estate, or both, of an incapacitated person shall be
4-30 brought in the county in which the proposed ward resides or is
4-31 located on the date the application is filed or in the county in
4-32 which the principal estate of the proposed ward is located.
4-33 (b) A proceeding for the appointment of a guardian for the
4-34 person or estate, or both, of a minor may be brought:
4-35 (1) in the county in which both the minor's parents
4-36 reside;
4-37 (2) if the parents do not reside in the same county,
4-38 in the county in which the parent who is the sole managing
4-39 conservator of the minor resides or in the county in which the
4-40 parent who is the joint managing conservator with the greater
4-41 period of physical possession of and access to the minor resides;
4-42 (3) if only one parent is living and the parent has
4-43 custody of the minor, in the county in which that parent resides;
4-44 (4) if both parents are dead but the minor was in the
4-45 custody of a deceased parent, in the county in which the last
4-46 surviving parent having custody resided; or
4-47 (5) if both parents of a minor child have died in a
4-48 common disaster and there is no evidence that the parents died
4-49 other than simultaneously, in the county in which both deceased
4-50 parents resided at the time of their simultaneous deaths if they
4-51 resided in the same county.
4-52 (c) A proceeding for the appointment of a guardian who was
4-53 appointed by will may be brought in the county in which the will
4-54 was admitted to probate or in the county of the appointee's
4-55 residence if the appointee resides in this state.
4-56 (d) A proceeding for the appointment of a guardian for the
4-57 estate of a missing person may be brought:
4-58 (1) in the county in which the missing person's spouse
4-59 resides;
4-60 (2) if there is no spouse, in the county in which a
4-61 parent or child of the missing person resides; or
4-62 (3) if there is no spouse, parent, or child, in the
4-63 county in which the missing person's next of kin resides.
4-64 (e) A court may transfer a guardianship proceeding to any
4-65 court having venue in the same manner as provided for transfer of
4-66 probate proceedings in Section 8 of this code.
4-67 Sec. 110. STANDING TO COMMENCE OR CONTEST PROCEEDING. Any
4-68 person has the right to commence any guardianship proceeding or to
4-69 appear and contest any guardianship proceeding or the appointment
4-70 of a particular person as guardian.
5-1 Sec. 110A. APPLICATION; CONTENTS. Any person may commence a
5-2 proceeding for the appointment of a guardian by filing a written
5-3 application in a court having jurisdiction and venue. The
5-4 application must be sworn to by the applicant and state:
5-5 (1) the name, sex, date of birth, and address of the
5-6 proposed ward;
5-7 (2) the name, relationship, and address of the person
5-8 the applicant desires to have appointed as guardian;
5-9 (3) the social security number of the proposed ward
5-10 and of the person the applicant desires to have appointed as
5-11 guardian;
5-12 (4) whether guardianship of the person or estate, or
5-13 both, is sought;
5-14 (5) the nature and degree of the alleged incapacity,
5-15 the specific areas of protection and assistance requested, and the
5-16 limitation of rights requested to be included in the court's order
5-17 of appointment;
5-18 (6) the facts requiring that a guardian be appointed
5-19 and the interest of the applicant in the appointment;
5-20 (7) the nature and description of any guardianship of
5-21 any kind existing for the proposed ward in this or any other state;
5-22 (8) the name and address of any person or institution
5-23 having the care and custody of the proposed ward;
5-24 (9) the approximate value and description of the
5-25 proposed ward's property, including any compensation, pension,
5-26 insurance, or allowance to which the proposed ward may be entitled;
5-27 (10) the requested term, if known, of the
5-28 guardianship;
5-29 (11) the name and address of any person whom the
5-30 applicant knows to hold a power of attorney signed by the proposed
5-31 ward and a description of the type of power of attorney;
5-32 (12) if the proposed ward is a minor, the names of the
5-33 parents and next of kin of the proposed ward and whether either or
5-34 both of the parents are deceased;
5-35 (13) if the proposed ward is a minor, whether the
5-36 minor was the subject of a legal or conservatorship proceeding
5-37 within the preceding two-year period and, if so, the court
5-38 involved, the nature of the proceeding, and the final disposition,
5-39 if any, of the proceeding;
5-40 (14) if the proposed ward is 60 years of age or older,
5-41 the names and addresses, to the best of the applicant's knowledge,
5-42 of the proposed ward's spouse, siblings, and children or, if there
5-43 is no spouse, sibling, or child, the names and addresses of the
5-44 proposed ward's next of kin;
5-45 (15) if the proposed ward is a missing person:
5-46 (A) the last known residence of the missing
5-47 person;
5-48 (B) the name of the executive department of the
5-49 United States reporting the proposed ward as a missing person, the
5-50 date of the report, and the last known whereabouts of the missing
5-51 person; and
5-52 (C) the names and addresses of the missing
5-53 person's spouse, children, and parents or, if there is no spouse,
5-54 child, or parent, the names and addresses of the missing person's
5-55 next of kin;
5-56 (16) facts showing that the court has venue over the
5-57 proceeding; and
5-58 (17) if applicable, that the person whom the applicant
5-59 desires to have appointed as a guardian is a private professional
5-60 guardian who has complied with the requirements of Section 126 of
5-61 this code.
5-62 Sec. 110B. COURT'S INITIATION OF GUARDIANSHIP PROCEEDINGS.
5-63 If a court has probable cause to believe that a person domiciled or
5-64 found in the county in which the court is located is an
5-65 incapacitated person and the person does not have a guardian in
5-66 this state, the court shall appoint an attorney ad litem to
5-67 investigate and file an application for the appointment of a
5-68 guardian of the person or estate, or both, of the person believed
5-69 to be incapacitated.
5-70 Sec. 110C. APPOINTMENT OF ATTORNEY AD LITEM AND INTERPRETER.
6-1 (a) In a proceeding under this chapter for the appointment of a
6-2 guardian for a person other than a missing person, the court shall
6-3 appoint an attorney ad litem to represent the interests of the
6-4 proposed ward. The attorney shall be supplied with copies of all
6-5 of the current records in the case and may have access to all of
6-6 the proposed ward's relevant medical, psychological, and
6-7 intellectual testing records.
6-8 (b) To be eligible for appointment as an attorney ad litem,
6-9 a person must be certified by the State Bar of Texas as having
6-10 successfully completed a course of study in guardianship law and
6-11 procedure sponsored by the state bar.
6-12 (c) For certification under Subsection (b) of this section,
6-13 the state bar may not require more than eight hours of credit.
6-14 (d) A certificate issued under Subsection (b) of this
6-15 section expires on the second anniversary of the date the
6-16 certificate was issued. A person whose certificate has expired
6-17 must obtain a new certificate to be eligible for appointment as an
6-18 attorney ad litem. The applicant is not required to again complete
6-19 the course of study required by Subsection (b) of this section
6-20 unless the state bar determines that the course has changed
6-21 substantially since the person last completed the course.
6-22 (e) Subsections (b) through (d) of this section do not apply
6-23 to a person who served as attorney ad litem in a guardianship
6-24 proceeding before September 1, 1993.
6-25 (f) At the time of the appointment of the attorney ad litem,
6-26 the court shall also appoint a language interpreter or a sign
6-27 interpreter if necessary to ensure effective communication between
6-28 the proposed ward and the attorney.
6-29 Sec. 110D. DUTIES OF ATTORNEY AD LITEM. (a) An attorney ad
6-30 litem appointed under Section 110C of this code to represent a
6-31 proposed ward shall interview the proposed ward within a reasonable
6-32 time before the hearing. To the greatest extent possible, the
6-33 attorney shall discuss with the proposed ward the law and facts of
6-34 the case, the proposed ward's legal options regarding disposition
6-35 of the case, and the grounds on which guardianship is sought.
6-36 (b) Before the hearing, the attorney shall review the
6-37 application for guardianship, certificates of current physical,
6-38 medical, and intellectual examinations, and all of the proposed
6-39 ward's relevant medical, psychological, and intellectual testing
6-40 records. The attorney shall also interview supporting witnesses
6-41 and other witnesses who will testify at the hearing.
6-42 Sec. 111. NOTICE AND CITATION. (a) On the filing of an
6-43 application for guardianship, notice shall be issued and served as
6-44 provided in this section.
6-45 (b) The court clerk shall issue a notice stating that the
6-46 application for guardianship was filed, the name of the proposed
6-47 ward, and the name of the applicant. The notice must cite all
6-48 persons interested in the welfare of the proposed ward to appear at
6-49 the time and place stated in the notice if they wish to contest the
6-50 application.
6-51 (c) A copy of the notice shall be posted, and the sheriff or
6-52 other officer posting the notice shall return the original notice,
6-53 officially signed and marked in writing with the time and place of
6-54 posting.
6-55 (d) The sheriff or other officer posting the notice shall
6-56 personally serve a copy of the notice, with citation to appear and
6-57 answer the application for guardianship, to:
6-58 (1) the proposed ward, unless the proposed ward is a
6-59 missing person, or a parent with whom the minor resides if the
6-60 proposed ward is a minor who is 14 years of age or younger;
6-61 (2) the proposed ward's parents; and
6-62 (3) any conservator or person having control of the
6-63 care and welfare of the proposed ward.
6-64 (e) The court clerk, at the applicant's request, or the
6-65 applicant shall mail a copy of the notice by registered or
6-66 certified mail, return receipt requested, to the following persons
6-67 if their whereabouts are known or can be reasonably ascertained:
6-68 (1) if the proposed ward is a person 60 years of age
6-69 or older, to the spouse, all siblings, and all children of the
6-70 proposed ward;
7-1 (2) all other persons related within the first degree
7-2 by consanguinity or affinity to the proposed ward;
7-3 (3) any person living with the proposed ward in a
7-4 private residence;
7-5 (4) the administrator of a nursing home facility or
7-6 similar facility in which the proposed ward resides; and
7-7 (5) a person whom the applicant knows to hold a power
7-8 of attorney signed by the proposed ward.
7-9 (f) A person other than the proposed ward who is entitled to
7-10 receive notice or personal service of citation under Subsections
7-11 (d) and (e) of this section may, in person or by attorney ad litem,
7-12 by writing filed with the clerk, waive the receipt of notice or the
7-13 issuance and personal service of citation.
7-14 (g) The court may not act on an application for the creation
7-15 of a guardianship until the Monday following the expiration of the
7-16 10-day period beginning the date service of notice and citation has
7-17 been made as provided by this section.
7-18 Sec. 112. USE OF RECORDS IN GUARDIANSHIP PROCEEDINGS.
7-19 (a) Before a hearing may be held for the appointment of a
7-20 guardian, current and relevant medical, psychological, and
7-21 intellectual testing records of the proposed ward must be filed
7-22 with the court unless:
7-23 (1) the proposed ward is a minor, a missing person, or
7-24 a person who must have a guardian appointed to receive funds due
7-25 the person from any governmental source; or
7-26 (2) the court makes a finding on the record that no
7-27 current or relevant records exist and that examining the proposed
7-28 ward for the purpose of creating the records is impractical.
7-29 (b) Current medical, psychological, and intellectual testing
7-30 records are a sufficient basis for a determination of guardianship.
7-31 (c) Medical, psychological, and intellectual testing records
7-32 filed with the application must be based on examinations conducted
7-33 during the 90-day period before the date the application is filed.
7-34 (d) The findings and recommendations contained in the
7-35 medical, psychological, and intellectual testing records are not
7-36 binding on the court.
7-37 Sec. 112A. EXAMINATIONS AND REPORTS. (a) If the medical,
7-38 psychological, and intellectual testing records of the proposed
7-39 ward are not filed with the application for guardianship, the court
7-40 shall appoint the necessary physicians and mental health
7-41 professionals to examine the person and file all necessary reports
7-42 with the court.
7-43 (b) A physician appointed by the court shall file with the
7-44 court a report that:
7-45 (1) describes the nature and degree of incapacity,
7-46 including the medical history if reasonably available;
7-47 (2) provides a medical prognosis specifying the
7-48 estimated severity of the incapacity;
7-49 (3) states how or in what manner the proposed ward's
7-50 ability to make or communicate responsible decisions concerning
7-51 himself or herself is affected by the person's physical or mental
7-52 health;
7-53 (4) states whether any current medication affects the
7-54 demeanor of the proposed ward or the proposed ward's ability to
7-55 participate fully in a court proceeding;
7-56 (5) describes the precise physical and mental
7-57 conditions underlying a diagnosis of senility, if applicable; and
7-58 (6) includes any other information required by the
7-59 court.
7-60 (c) If the basis of the proposed ward's alleged incapacity
7-61 is mental retardation, the proposed ward shall be examined by a
7-62 physician or psychologist licensed in this state or certified by
7-63 the Texas Department of Mental Health and Mental Retardation to
7-64 perform the examination, unless there is written documentation
7-65 filed with the court that shows that the proposed ward has been
7-66 examined according to the rules adopted by the Texas Department of
7-67 Mental Health and Mental Retardation not earlier than six months
7-68 before the date of a hearing to appoint a guardian for the proposed
7-69 ward. The physician or psychologist shall conduct the examination
7-70 according to the rules adopted by the Texas Department of Mental
8-1 Health and Mental Retardation and shall submit written findings and
8-2 recommendations to the court.
8-3 Sec. 112B. PAYMENT FOR PROFESSIONAL SERVICES. The court
8-4 shall order the payment of a fee set by the court as compensation
8-5 to the attorneys, mental health professionals, and interpreters
8-6 appointed under this subpart to be taxed as costs in the case. If
8-7 after examining the proposed ward's assets the court determines the
8-8 proposed ward is unable to pay for services provided by an
8-9 attorney, a mental health professional, or an interpreter appointed
8-10 under this subpart, the county is responsible for the cost of those
8-11 services.
8-12 Sec. 113. HEARING; RIGHT TO JURY TRIAL. (a) A proposed
8-13 ward other than a missing person must be present at a hearing to
8-14 appoint a guardian unless the court, on the record, determines that
8-15 a personal appearance is not in the person's best interests. The
8-16 court may close the hearing if the proposed ward or the proposed
8-17 ward's counsel requests a closed hearing.
8-18 (b) The proposed ward is entitled, on request, to a jury
8-19 trial.
8-20 (c) At the hearing, the court shall:
8-21 (1) inquire into the ability of any allegedly
8-22 incapacitated adult person to feed, clothe, and shelter himself or
8-23 herself, to care for the individual's own physical health, and to
8-24 manage the individual's property or financial affairs;
8-25 (2) ascertain the age of any proposed ward who is a
8-26 minor;
8-27 (3) inquire into the governmental reports for any
8-28 missing person or person who must have a guardian appointed to
8-29 receive funds due the person from any governmental source; and
8-30 (4) inquire into the qualifications, abilities, and
8-31 capabilities of the person seeking to be appointed guardian.
8-32 Sec. 113A. FINDINGS REQUIRED. (a) Before appointing a
8-33 guardian, the court must find that:
8-34 (1) the proposed ward is an incapacitated person;
8-35 (2) the court has venue of the case;
8-36 (3) the person to be appointed guardian is eligible to
8-37 act as guardian and is entitled to appointment or, if no eligible
8-38 person entitled to appointment applies, the person appointed is a
8-39 proper person to act as guardian;
8-40 (4) the rights of persons or property will be
8-41 protected by the appointment of a guardian;
8-42 (5) if a guardian is appointed for a minor, the
8-43 guardianship is not created for the primary purpose of enabling the
8-44 minor to establish residency for enrollment in a school or school
8-45 district for which the minor is not otherwise eligible for
8-46 enrollment; and
8-47 (6) if the guardian is appointed for a missing person,
8-48 the person was reported missing by an executive department of the
8-49 United States at least six months earlier than the date of the
8-50 filing of the application and currently is missing.
8-51 (b) The court may not grant an application to create a
8-52 guardianship unless the applicant proves each element required by
8-53 this code. A determination of incapacity of an adult proposed
8-54 ward, other than a missing person or a person who must have a
8-55 guardian appointed to receive funds due the person from any
8-56 governmental source, must be evidenced by recurring acts or
8-57 occurrences within the preceding six-month period and not by
8-58 isolated instances of negligence or bad judgment.
8-59 (c) A court may not appoint a guardian of the estate of a
8-60 minor when a payment of claims is made under Section 144 of this
8-61 code.
8-62 (d) A certificate of the executive head or a representative
8-63 of the bureau, department, or agency of the government to the
8-64 effect that the appointment of a guardian is a condition precedent
8-65 to the payment of any funds due the proposed ward from that
8-66 governmental entity is prima facie evidence of the necessity for
8-67 the appointment of a guardian.
8-68 Sec. 113B. ORDER OF COURT. (a) If it is found that an
8-69 adult person possesses the capacity to care for himself or herself
8-70 and to manage the individual's property as would a reasonably
9-1 prudent person, the court shall dismiss the application for
9-2 guardianship.
9-3 (b) If it is found that the proposed ward is totally without
9-4 capacity as provided by this code to care for himself or herself
9-5 and to manage the individual's property, the court shall include
9-6 that determination as a finding of fact in its final order in the
9-7 proceeding, and the court may appoint a guardian of the
9-8 individual's person or estate, or both, with full authority over
9-9 the incapacitated person except as provided by law.
9-10 (c) If it is found that the person lacks the capacity to do
9-11 some but not all of the tasks necessary to care for himself or
9-12 herself or to manage the individual's property, the court may
9-13 appoint a guardian with limited powers and permit the individual to
9-14 care for himself or herself or to manage the individual's property
9-15 commensurate with the individual's ability.
9-16 (d) An order appointing a guardian must contain findings of
9-17 fact and specify:
9-18 (1) the information required by Section 184 of this
9-19 code;
9-20 (2) the properties of the person that the guardian is
9-21 entitled to possess and manage with a description of the properties
9-22 sufficient to identify them;
9-23 (3) the debts, rentals, wages, or other claims due the
9-24 person that the guardian is entitled to collect or file suit to
9-25 collect and after collection to possess and manage;
9-26 (4) the contractual or other obligations that the
9-27 guardian may incur on behalf of the person;
9-28 (5) the claims against the person that the guardian
9-29 may pay, compromise, or defend, if necessary;
9-30 (6) the specific powers, limitations, or duties of the
9-31 guardian with respect to the care of the person or the management
9-32 of the person's property by the guardian; and
9-33 (7) if necessary, the amount of funds from the corpus
9-34 of the person's estate the court will allow the guardian to expend
9-35 for the education and maintenance of the person under Section 236
9-36 of this code.
9-37 (e) An order appointing a guardian may not duplicate or
9-38 conflict with the powers and duties of any other guardian.
9-39 Sec. 114. NONRESIDENT AS WARD. Guardianship of the estate
9-40 of a nonresident incapacitated person who owns property in this
9-41 state may be granted, if necessary, in the same manner as for the
9-42 property of a resident of this state. A court in the county in
9-43 which the principal estate of the ward is located has jurisdiction
9-44 to appoint a guardian. The court shall take all actions and make
9-45 all necessary orders with respect to the estate of the ward for the
9-46 maintenance, support, care, or education of the ward out of the
9-47 proceeds of the ward's estate in the same manner as if the ward
9-48 were a resident of this state and was sent abroad by the court for
9-49 education or treatment. If a qualified nonresident guardian of the
9-50 estate later qualifies in this state under Section 118 of this
9-51 code, the court shall close the resident guardianship.
9-52 SUBPART C. SELECTION OF GUARDIAN
9-53 Sec. 115. PERSONS INELIGIBLE TO BE GUARDIANS. A person may
9-54 not be appointed guardian if the person is:
9-55 (1) a minor;
9-56 (2) a person whose conduct is notoriously bad;
9-57 (3) an incapacitated person;
9-58 (4) a person who is a party or whose parent is a party
9-59 to a lawsuit concerning or affecting the welfare of the proposed
9-60 ward;
9-61 (5) a person indebted to the proposed ward unless the
9-62 person pays the debt before appointment;
9-63 (6) a person asserting a claim adverse to the proposed
9-64 ward or the proposed ward's property, real or personal;
9-65 (7) a person who, because of inexperience, lack of
9-66 education, or other good reason, is incapable of properly and
9-67 prudently managing and controlling the ward or the ward's estate;
9-68 (8) a person, institution, or corporation found
9-69 unsuitable by the court; or
9-70 (9) a person disqualified in a declaration made under
10-1 Section 117B of this code.
10-2 Sec. 115A. PREFERENCE OF WARD. Before appointing a
10-3 guardian, the court shall make a reasonable effort to question the
10-4 incapacitated person concerning the person's preference of the
10-5 person to be appointed guardian and, to the extent not inconsistent
10-6 with other provisions of this code, shall give due consideration to
10-7 the preference indicated by the incapacitated person.
10-8 Sec. 116. SELECTION OF GUARDIAN BY MINOR. (a) When an
10-9 application is filed for the guardianship of the person or estate,
10-10 or both, of a minor at least 14 years of age, the minor, subject to
10-11 the court's approval, may choose the guardian by writing filed with
10-12 the clerk.
10-13 (b) A minor at least 14 years of age may select another
10-14 guardian of either the minor's person or estate, or both, if the
10-15 minor has a guardian appointed by the court or the minor has a
10-16 guardian appointed by will or written declaration of the parent of
10-17 the minor and that guardian dies, resigns, or is removed from
10-18 guardianship. If the court is satisfied that the person selected
10-19 is suitable and competent, it shall make the appointment and revoke
10-20 the letters of guardianship of the former guardian. The minor
10-21 shall make the selection by filing an application in open court in
10-22 person or by attorney.
10-23 Sec. 116A. GUARDIANS OF MINORS. (a) Except as provided by
10-24 Section 116 of this code, the selection of a guardian for a minor
10-25 is governed by this section.
10-26 (b) If the parents live together, both parents are the
10-27 natural guardians of the person of the minor children by the
10-28 marriage, and one of the parents is entitled to be appointed
10-29 guardian of the children's estates. If the parents disagree as to
10-30 which parent should be appointed, the court shall make the
10-31 appointment on the basis of which parent is better qualified to
10-32 serve in that capacity. If one parent is dead, the survivor is the
10-33 natural guardian of the person of the minor children and is
10-34 entitled to be appointed guardian of their estates. The rights of
10-35 parents who do not live together are equal, and the guardianship of
10-36 their minor children shall be assigned to one or the other,
10-37 considering only the best interests of the children.
10-38 (c) In appointing a guardian for a minor orphan:
10-39 (1) if the last surviving parent did not appoint a
10-40 guardian, the nearest ascendant in the direct line of the minor is
10-41 entitled to guardianship of both the person and the estate of the
10-42 minor;
10-43 (2) if more than one ascendant exists in the same
10-44 degree in the direct line, one ascendant shall be appointed,
10-45 according to circumstances and considering the best interests of
10-46 the minor;
10-47 (3) if the minor has no ascendant in the direct line,
10-48 the nearest of kin shall be appointed, and if there are two or more
10-49 persons in the same degree of kinship, one shall be appointed,
10-50 according to circumstances and considering the best interests of
10-51 the minor; and
10-52 (4) if no relative of the minor is eligible to be
10-53 guardian or if no eligible person applies to be guardian, the court
10-54 shall appoint a qualified person as guardian.
10-55 (d) The surviving parent of a minor may by will or written
10-56 declaration appoint any eligible person to be guardian of the
10-57 person of the parent's minor children after the death of the
10-58 parent. On compliance with this code, an eligible person is also
10-59 entitled to be appointed guardian of the children's estates after
10-60 the death of the parent.
10-61 Sec. 117. GUARDIANS OF PERSONS OTHER THAN MINORS. The court
10-62 shall appoint a guardian for a person other than a minor according
10-63 to the circumstances and considering the best interests of the
10-64 ward. If the court finds that two or more eligible persons are
10-65 equally entitled to be appointed guardian:
10-66 (1) the ward's spouse is entitled to the guardianship
10-67 in preference to any other person if the spouse is one of the
10-68 eligible persons;
10-69 (2) the eligible person nearest of kin to the ward is
10-70 entitled to the guardianship if the ward's spouse is not one of the
11-1 eligible persons; or
11-2 (3) the court shall appoint the eligible person who is
11-3 best qualified to serve as guardian if:
11-4 (A) the persons entitled to serve under
11-5 Subdivisions (1) and (2) of this section refuse to serve;
11-6 (B) two or more persons entitled to serve under
11-7 Subdivision (2) of this section are related in the same degree of
11-8 kinship to the ward; or
11-9 (C) neither the ward's spouse or any person
11-10 related to the ward is an eligible person.
11-11 Sec. 117A. PRESUMPTION CONCERNING BEST INTEREST. It is
11-12 presumed not to be in the best interests of a ward to appoint a
11-13 person as guardian of the ward if the person has been finally
11-14 convicted of any sexual offense, sexual assault, aggravated
11-15 assault, aggravated sexual assault, injury to a child, abandoning
11-16 or endangering a child, or incest.
11-17 Sec. 117B. DESIGNATION OF GUARDIAN BEFORE NEED ARISES.
11-18 (a) A person other than an incapacitated person may designate by a
11-19 written declaration persons to serve as guardian of the person of
11-20 the declarant or the estate of the declarant if the declarant
11-21 becomes incapacitated. The declaration must be attested to by at
11-22 least two credible witnesses 14 years of age or older who are not
11-23 named as guardian or alternate guardian in the declaration.
11-24 (b) A declarant may, in the declaration, disqualify named
11-25 persons from serving as guardian of the declarant's person or
11-26 estate, and the persons named may not be appointed guardian under
11-27 any circumstances.
11-28 (c) The declaration must have attached a self-proving
11-29 affidavit signed by the declarant and the witnesses attesting to
11-30 the competence of the declarant and the execution of the
11-31 declaration. A properly executed and witnessed declaration and
11-32 affidavit are prima facie evidence that the declarant was competent
11-33 at the time the declarant executed the declaration and that the
11-34 guardian named in the declaration would serve the best interests of
11-35 the ward.
11-36 (d) The declaration and affidavit may be filed with the
11-37 court at any time after the application for appointment of a
11-38 guardian is filed and before a guardian is appointed. Unless the
11-39 court finds that the person designated in the declaration to serve
11-40 as guardian is disqualified or would not serve the best interests
11-41 of the ward, the court shall appoint the person as guardian in
11-42 preference to those otherwise entitled to serve as guardian under
11-43 this code. If the designated guardian does not qualify, is dead,
11-44 refuses to serve, resigns, dies after being appointed guardian, or
11-45 is otherwise unavailable to serve as guardian, the court shall
11-46 appoint the next eligible designated alternate guardian named in
11-47 the declaration. If the guardian and all alternate guardians do
11-48 not qualify, are dead, refuse to serve, or later die or resign, the
11-49 court shall appoint another person to serve as otherwise provided
11-50 by this code.
11-51 (e) The declarant may revoke a declaration in any manner
11-52 provided for the revocation of a will under Section 63 of this
11-53 code, including the subsequent reexecution of the declaration in
11-54 the manner required for the original declaration.
11-55 (f) If a declarant designates the declarant's spouse to
11-56 serve as guardian under this section and the declarant is
11-57 subsequently divorced from that spouse before a guardian is
11-58 appointed, the provision of the declaration designating the spouse
11-59 has no effect.
11-60 (g) A declaration and affidavit may be in any form adequate
11-61 to clearly indicate the declarant's intention to designate a
11-62 guardian. The following forms may but need not be used:
11-63 DECLARATION OF GUARDIAN IN THE EVENT OF
11-64 LATER INCAPACITY OR NEED OF GUARDIAN
11-65 I, _____________, make this Declaration of Guardian, to
11-66 operate if the need for a guardian for me later arises.
11-67 1. I designate ____________ to serve as guardian of my
11-68 person, ____________ as first alternate guardian of my person,
11-69 ________________ as second alternate guardian of my person, and
11-70 ____________ as third alternate guardian of my person.
12-1 2. I designate ____________ to serve as guardian of my
12-2 estate, ____________ as first alternate guardian of my estate,
12-3 ____________ as second alternate guardian of my estate, and
12-4 ____________ as third alternate guardian of my estate.
12-5 3. If any guardian or alternate guardian dies, does not
12-6 qualify, or resigns, the next named alternate guardian becomes my
12-7 guardian.
12-8 4. I expressly disqualify the following persons from serving
12-9 as guardian of my person: ____________, ____________, and
12-10 ____________.
12-11 5. I expressly disqualify the following persons from serving
12-12 as guardian of my estate: ____________, ____________, and
12-13 ____________.
12-14 Signed this ____ day of __________, 19__.
12-15 ___________________
12-16 Declarant
12-17 ___________________ ___________________
12-18 Witness Witness
12-19 SELF-PROVING AFFIDAVIT
12-20 Before me, the undersigned authority, on this date personally
12-21 appeared the declarant, and ____________ and ____________ as
12-22 witnesses, and all being duly sworn, the declarant said that the
12-23 above instrument was his or her Declaration of Guardian and that
12-24 the declarant had made and executed it for the purposes expressed
12-25 in the declaration. The witnesses declared to me that they are
12-26 each 14 years of age or older, that they saw the declarant sign the
12-27 declaration, that they signed the declaration as witnesses, and
12-28 that the declarant appeared to them to be of sound mind.
12-29 ___________________
12-30 Declarant
12-31 ___________________ ____________________
12-32 Affiant Affiant
12-33 Subscribed and sworn to before me by the above named
12-34 declarant and affiants on this ____ day of __________, 19__.
12-35 ________________________
12-36 Notary Public in and for
12-37 the State of Texas
12-38 My Commission expires:
12-39 ________________________
12-40 Sec. 117C. AGENCY AS LAST RESORT. Except as a last resort,
12-41 the court may not appoint as guardian the Texas Department of
12-42 Mental Health and Mental Retardation, the Texas Department of Human
12-43 Services, a community mental health and mental retardation center,
12-44 or any other agency, public or private, that is directly providing
12-45 services to the incapacitated person.
12-46 Sec. 117D. ONLY ONE PERSON APPOINTED GUARDIAN. Only one
12-47 person may be appointed as guardian of the person or estate, but
12-48 one person may be appointed guardian of the person and another of
12-49 the estate if it is to the advantage of the ward. Nothing in this
12-50 section prohibits the joint appointment of a husband and wife or of
12-51 coguardians appointed under the laws of a jurisdiction other than
12-52 this state.
12-53 Sec. 118. NONRESIDENT GUARDIAN. (a) A nonresident of this
12-54 state may be appointed and qualified as guardian or coguardian of a
12-55 nonresident ward's estate located in this state in the same manner
12-56 provided by this code for the appointment and qualification of a
12-57 resident as guardian of the estate of an incapacitated person if:
12-58 (1) a court of competent jurisdiction in the
12-59 geographical jurisdiction in which the nonresident resides
12-60 appointed the nonresident guardian;
12-61 (2) the nonresident is qualified as guardian or as a
12-62 fiduciary legal representative by whatever name known in the
12-63 foreign jurisdiction of the property or estate of the ward located
12-64 in the jurisdiction of the foreign court; and
12-65 (3) with the written application for appointment in
12-66 the county court of any county in this state in which all or part
12-67 of the ward's estate is located, the nonresident files a complete
12-68 transcript of the proceedings from the records of the court in
12-69 which the nonresident applicant was appointed, showing the
12-70 applicant's appointment and qualification as the guardian or
13-1 fiduciary legal representative of the ward's property or estate.
13-2 (b) The transcript required by Subsection (a) of this
13-3 section must be certified and attested to by the clerk of the
13-4 foreign court or the officer of the court charged by law with
13-5 custody of the court records, under the court seal, if any. The
13-6 certificate of the judge, chief justice, or presiding magistrate,
13-7 as applicable, of the foreign court must be attached to the
13-8 transcript, certifying that the attestation of the transcript by
13-9 the clerk or legal custodian of the court records is in correct
13-10 form.
13-11 (c) If the nonresident applicant meets the requirements of
13-12 this section, the court shall enter an order appointing the
13-13 nonresident, without the necessity of any notice or citation.
13-14 After the nonresident applicant qualifies in the manner required of
13-15 resident guardians and files with the court a power of attorney
13-16 appointing a resident agent to accept service of process in all
13-17 actions or proceedings with respect to the estate, the clerk shall
13-18 issue the letters of guardianship to the nonresident guardian.
13-19 (d) After qualification, the nonresident guardian shall file
13-20 an inventory and appraisement of the estate of the ward in this
13-21 state subject to the jurisdiction of the court as in ordinary cases
13-22 and is subject to all applicable provisions of this code with
13-23 respect to the handling and settlement of estates by resident
13-24 guardians.
13-25 Sec. 118A. DELIVERY OF PROPERTY TO NONRESIDENT GUARDIAN.
13-26 The court may order a resident executor, administrator, or guardian
13-27 in possession of any of the estate of a ward to deliver the
13-28 property to a qualified and acting nonresident guardian of the
13-29 ward.
13-30 Sec. 118B. APPOINTMENT OF PRIVATE PROFESSIONAL GUARDIANS. A
13-31 court may not appoint a private professional guardian to serve as a
13-32 guardian or permit a private professional guardian to continue to
13-33 serve as a guardian under this code if the private professional
13-34 guardian has not complied with the requirements of Section 126 of
13-35 this code.
13-36 SUBPART D. CERTAIN POWERS AND DUTIES OF GUARDIAN
13-37 Sec. 119. RIGHTS AND POWERS RETAINED BY WARD. An
13-38 incapacitated person for whom a guardian is appointed retains all
13-39 legal and civil rights and powers except those designated by court
13-40 order as legal disabilities by virtue of having been specifically
13-41 granted to the guardian.
13-42 Sec. 120. OATH AND BOND OF GUARDIAN. The guardian shall
13-43 take and subscribe an oath required by this code. The guardian
13-44 shall file a bond in accordance with Section 194 of this code. In
13-45 cases where a guardianship program is appointed guardian, the judge
13-46 may consider requiring a single bond to cover all of the wards of
13-47 the guardianship program.
13-48 Sec. 121. AUTHORITY OF GUARDIAN. After the filing of the
13-49 oath and bond, the order of the court appointing the guardian is
13-50 effective on the issuance of letters of guardianship. The order is
13-51 evidence of the authority of the guardian to act within the scope
13-52 of the powers and duties set forth in the order.
13-53 Sec. 121A. ACCOUNT AND INVENTORY. (a) Except as provided
13-54 by Subsection (b) of this section, a guardian of an adult shall
13-55 annually file, not later than the 60th day after the anniversary
13-56 date of the guardian's appointment, a written verified account of
13-57 the guardian's administration of the person and of the estate of
13-58 the adult.
13-59 (b) The court may allow the account of the estate of the
13-60 adult to be filed at intervals of up to 36 months if an adequate
13-61 bond or safekeeping agreement is in effect and the ward's income is
13-62 governmental benefits that the guardian by court order has to use
13-63 for maintenance and support of the ward. The court shall instruct
13-64 the guardian that any substantial increase in income or assets must
13-65 be reported not later than the 30th day after the date of the
13-66 substantial increase.
13-67 (c) Not later than the 90th day after the date of
13-68 appointment, a guardian who is managing properties shall prepare
13-69 and file a verified inventory of all the property of the
13-70 incapacitated person in the guardian's possession or knowledge,
14-1 including a statement of all encumbrances, liens, and other secured
14-2 charges on any item.
14-3 (d) A guardian of an adult shall file a written verified
14-4 account of the guardian's administration of the person and of the
14-5 estate of the adult not later than the 30th day after termination
14-6 of the guardianship.
14-7 Sec. 121B. MANAGEMENT OF PROPERTY. To the extent that an
14-8 order of the court gives a guardian control of any property of an
14-9 incapacitated person, the guardian shall take care of and manage
14-10 the property as a prudent person would manage the person's own
14-11 property.
14-12 Sec. 121C. CARE OF WARD; COMMITMENT. (a) The guardian of
14-13 an adult may expend funds of the guardianship as provided by court
14-14 order to care for and maintain the incapacitated person. The
14-15 guardian may apply for residential care and services provided by a
14-16 public or private facility on behalf of an incapacitated person who
14-17 has decision-making ability if the person agrees to be placed in
14-18 the facility. The guardian shall report the condition of the
14-19 person to the court at regular intervals at least annually, unless
14-20 the court orders more frequent reports. If the person is receiving
14-21 residential care in a public or private residential care facility,
14-22 the guardian shall include in any report to the court a statement
14-23 as to the necessity for continued care in the facility.
14-24 (b) Except as provided by Subsection (c) of this section, a
14-25 guardian may not voluntarily admit an incapacitated person to a
14-26 public or private inpatient psychiatric facility or to a
14-27 residential care facility operated by the Texas Department of
14-28 Mental Health and Mental Retardation for care and treatment. If
14-29 care and treatment in a psychiatric or a residential care facility
14-30 are necessary, the person or the person's guardian may apply for
14-31 services under Sections 593.027 and 593.028, Health and Safety
14-32 Code, or apply to a court to commit the person under Subtitle D,
14-33 Title 7, Health and Safety Code (Persons with Mental Retardation
14-34 Act), Subtitle C, Title 7, Health and Safety Code (Texas Mental
14-35 Health Code), or Chapter 462, Health and Safety Code.
14-36 (c) A guardian of a person under 16 years of age may
14-37 voluntarily admit an incapacitated person to a public or private
14-38 inpatient psychiatric facility for care and treatment. If care and
14-39 treatment in a psychiatric facility is necessary, the person or the
14-40 person's guardian may apply to a court to commit the person under
14-41 the Texas Mental Health Code, Subtitle C, Title 7, Health and
14-42 Safety Code, or Chapter 462, Health and Safety Code.
14-43 Sec. 121D. NONRESIDENT GUARDIAN'S REMOVAL OF WARD'S PROPERTY
14-44 FROM STATE. A nonresident guardian, whether or not qualified under
14-45 this code, may remove personal property of the ward out of the
14-46 state if:
14-47 (1) the removal does not conflict with the tenure of
14-48 the property or the terms and limitations of the guardianship under
14-49 which the property is held; and
14-50 (2) all debts known to exist against the estate in
14-51 this state are paid or secured by bond payable to and approved by
14-52 the judge of the court in which guardianship proceedings are
14-53 pending in this state.
14-54 SUBPART E. TERMINATION, MODIFICATION, REMOVAL, OR RESIGNATION
14-55 Sec. 122. TERM OF APPOINTMENT OF GUARDIAN. (a) Unless
14-56 otherwise discharged as provided by law, a guardian remains in
14-57 office until the estate is closed.
14-58 (b) The guardianship shall be settled and closed when the
14-59 incapacitated person:
14-60 (1) dies and, if the person was married, the person's
14-61 spouse qualifies as survivor in community;
14-62 (2) is found by the court to have full capacity to
14-63 care for himself or herself and to manage the person's property;
14-64 (3) is no longer a minor;
14-65 (4) returns to the United States, if the person was a
14-66 missing person and the court grants the motion of any interested
14-67 person to vacate the original order of guardianship; or
14-68 (5) no longer must have a guardian appointed to
14-69 receive funds due the person from any governmental source.
14-70 (c) An order appointing a guardian or a successor guardian
15-1 may specify a period of not more than one year during which a
15-2 petition for adjudication that the incapacitated person no longer
15-3 requires the guardianship may not be filed without special leave.
15-4 (d) Except as provided by Subsection (c) of this section, a
15-5 ward or any person interested in the ward's welfare may petition
15-6 the court for an order:
15-7 (1) finding that the ward no longer needs the
15-8 guardianship and ordering that the guardian resign or be removed;
15-9 (2) finding that the ward lacks the capacity to do
15-10 some or all of the tasks necessary to care for himself or herself
15-11 or to manage the ward's property and granting additional powers or
15-12 duties to the guardian with respect to the care of the ward or the
15-13 management of the ward's property by the guardian; or
15-14 (3) finding that the ward has regained the capacity to
15-15 do some but not all of the tasks necessary to care for himself or
15-16 herself or to manage the ward's property and:
15-17 (A) limiting the powers or duties of the
15-18 guardian with respect to the care of the ward or the management of
15-19 the ward's property by the guardian; and
15-20 (B) permitting the ward to care for himself or
15-21 herself or to manage the ward's property commensurate with the
15-22 ward's ability.
15-23 (e) A request for an order under this section may be made by
15-24 informal letter to the court. A person who knowingly interferes
15-25 with the transmission of the request to the court may be adjudged
15-26 guilty of contempt of court.
15-27 (f) If a nonresident guardian of a nonresident ward
15-28 qualifies as guardian under Subpart C of this part, the
15-29 guardianship of any resident guardian may be terminated.
15-30 Sec. 123. REMOVAL OR RESIGNATION OF GUARDIAN. (a) On
15-31 petition of the incapacitated person or any person interested in
15-32 the person's welfare and on service of notice as directed by the
15-33 court, the court may remove a guardian if the court finds removal
15-34 in the best interests of the person.
15-35 (b) On petition of the guardian, the court may accept the
15-36 guardian's resignation.
15-37 Sec. 123A. ANNUAL DETERMINATION WHETHER GUARDIANSHIP SHOULD
15-38 BE CONTINUED, MODIFIED, OR TERMINATED. (a) A court in which a
15-39 guardianship proceeding is pending shall review annually each
15-40 guardianship to determine whether the guardianship should be
15-41 continued, modified, or terminated.
15-42 (b) In reviewing a guardianship as provided by Subsection
15-43 (a) of this section, a statutory probate court shall:
15-44 (1) review a report prepared by a court investigator
15-45 under Section 25.0025, Government Code;
15-46 (2) review a report prepared by a court visitor under
15-47 Section 127 of this code; or
15-48 (3) conduct a hearing if necessary.
15-49 (c) In reviewing a guardianship as provided by Subsection
15-50 (a) of this section, a court that is not a statutory probate court
15-51 may use any appropriate method determined by the court according to
15-52 the court's caseload and the resources available to the court.
15-53 (d) A determination under this section must be in writing
15-54 and filed with the clerk.
15-55 Sec. 124. APPOINTMENT OF SUCCESSOR GUARDIAN. (a) At any
15-56 hearing under this chapter the court may appoint one or more
15-57 successor guardians to assume the position of guardian without
15-58 additional judicial proceedings on the failure to qualify, death,
15-59 incapacity, or resignation of the preceding guardian. The guardian
15-60 serving at the time a successor guardian is appointed shall furnish
15-61 each successor guardian with a copy of the court order establishing
15-62 or modifying the initial guardianship and a copy of the order
15-63 appointing the successor guardian. A successor guardian who
15-64 assumes the position of guardian without a court proceeding shall
15-65 notify the court having jurisdiction of the guardianship of the
15-66 change in guardian not later than the 11th day after the date the
15-67 successor guardian assumes the position.
15-68 (b) Unless provision for a successor is made under
15-69 Subsection (a) of this section, if a guardian dies, resigns, or is
15-70 removed, the court may, on application and on service of notice as
16-1 directed by the court, appoint a successor guardian.
16-2 (c) A successor guardian has the powers and rights and is
16-3 subject to all of the duties of the preceding guardian.
16-4 SUBPART F. REMOVAL OF GUARDIANSHIP TO ANOTHER COUNTY
16-5 Sec. 125. APPLICATION FOR REMOVAL OF GUARDIANSHIP. When a
16-6 guardian or any other person desires to remove the transaction of
16-7 the business of the guardianship from one county to another, the
16-8 person shall file a written application in the court in which the
16-9 guardianship is pending stating the reason for moving the
16-10 transaction of business.
16-11 Sec. 125A. NOTICE. (a) On filing an application to remove
16-12 a guardianship to another county, the sureties on the bond of the
16-13 guardian shall be cited by personal service to appear and show
16-14 cause why the application should not be granted.
16-15 (b) If an application is filed by a person other than the
16-16 guardian, the guardian shall be cited by personal service to appear
16-17 and show cause why the application should not be granted.
16-18 Sec. 125B. COURT ACTION. On hearing an application under
16-19 Section 125 of this code, if good cause is not shown to deny the
16-20 application and it appears that removal of the guardianship is in
16-21 the best interests of the ward, the court shall enter an order
16-22 authorizing the removal on payment on behalf of the estate of all
16-23 accrued costs.
16-24 Sec. 125C. TRANSCRIPT OF RECORD. When an order of removal
16-25 is made under Section 125B of this code, the clerk shall record any
16-26 unrecorded papers of the guardianship required to be recorded and
16-27 make out a complete certified transcript of all the orders,
16-28 decrees, judgments, and proceedings in the guardianship. On
16-29 payment of the clerk's fees, the clerk shall transmit the
16-30 transcript, with the original papers in the case, to the county
16-31 clerk of the county to which the guardianship was ordered removed.
16-32 Sec. 125D. REMOVAL EFFECTIVE. The order removing a
16-33 guardianship does not take effect until:
16-34 (1) the transcript required by Section 125C of this
16-35 code is filed in the office of the county clerk of the county to
16-36 which the guardianship was ordered removed; and
16-37 (2) a certificate under the clerk's official seal and
16-38 reporting the filing of the transcript is filed in the court
16-39 ordering the removal by the county clerk of the county to which the
16-40 guardianship was ordered removed.
16-41 Sec. 125E. CONTINUATION OF GUARDIANSHIP. When a
16-42 guardianship is removed from one county to another in accordance
16-43 with this subpart, the guardianship proceeds in the court to which
16-44 it was removed as if it had been originally commenced in that
16-45 court. It is not necessary to record in the receiving court any of
16-46 the papers in the case that were recorded in the court from which
16-47 the case was removed.
16-48 Sec. 125F. NEW GUARDIAN MAY BE APPOINTED ON REMOVAL. If it
16-49 appears to the court that removal of the guardianship is in the
16-50 best interests of the ward but that because of the removal it will
16-51 be unduly expensive or unduly inconvenient to the estate for the
16-52 guardian of the estate to continue to serve in that capacity, the
16-53 court may in its order of removal revoke the letters of
16-54 guardianship and appoint a new guardian, and the former guardian
16-55 shall account for and deliver the estate as provided in this code
16-56 in a case in which a guardian resigns.
16-57 SUBPART G. PRIVATE PROFESSIONAL GUARDIANS
16-58 Sec. 126. REGISTRATION OF PRIVATE PROFESSIONAL GUARDIANS.
16-59 (a) A private professional guardian must apply annually to the
16-60 clerk of the county having venue over the proceeding for the
16-61 appointment of a guardian for certification. The application must
16-62 include a sworn statement containing the following information
16-63 concerning a private professional guardian or a person who
16-64 represents or plans to represent the interests of a ward as a
16-65 guardian on behalf of the private professional guardian:
16-66 (1) educational background and professional
16-67 experience;
16-68 (2) three or more professional references;
16-69 (3) the names of all of the wards the private
16-70 professional guardian or person is or will be serving as a
17-1 guardian;
17-2 (4) the aggregate fair market value of the property of
17-3 all wards that is being or will be managed by the private
17-4 professional guardian or person;
17-5 (5) place of residence, business address, and business
17-6 telephone number; and
17-7 (6) whether the private professional guardian or
17-8 person has ever been removed as a guardian by the court or resigned
17-9 as a guardian in a particular case, and, if so, a description of
17-10 the circumstances causing the removal or resignation, and the style
17-11 of the suit, the docket number, and the court having jurisdiction
17-12 over the proceeding.
17-13 (b) The application must be accompanied by a nonrefundable
17-14 fee set by the clerk in an amount necessary to cover the cost of
17-15 administering this section.
17-16 (c) The term of the certification begins on the date that
17-17 the requirements are met and extends through December 31 of the
17-18 initial year. After the initial year of certification, the term of
17-19 the certification begins on January 1 and ends on December 31 of
17-20 each year. A renewal application must be completed during December
17-21 of the year preceding the year for which the renewal is requested.
17-22 (d) The clerk shall bring the information received under
17-23 this section to the judge's attention for review. The judge shall
17-24 use the information only in determining whether to appoint, remove,
17-25 or continue the appointment of a private professional guardian.
17-26 Sec. 126A. ACCESS TO CRIMINAL HISTORY RECORDS. (a) The
17-27 clerk of the county where venue occurs for the proceeding for the
17-28 appointment of a guardian shall obtain criminal history record
17-29 information that is maintained by the Department of Public Safety
17-30 or the Federal Bureau of Investigation identification division
17-31 relating to a private professional guardian or a person who
17-32 represents or plans to represent the interests of a ward as a
17-33 guardian on behalf of the private professional guardian.
17-34 (b) The criminal history record information obtained under
17-35 this section is for the exclusive use of the court and is
17-36 privileged and confidential. The criminal history record
17-37 information may not be released or otherwise disclosed to any
17-38 person or agency except on court order or consent of the person
17-39 being investigated. The clerk may destroy the criminal history
17-40 information records after the records are used for the purposes
17-41 authorized by this section.
17-42 (c) The court shall use the information obtained under this
17-43 section only in determining whether to appoint, remove, or continue
17-44 the appointment of a private professional guardian.
17-45 (d) A person commits an offense if the person releases or
17-46 discloses any information received under this section without the
17-47 authorization prescribed by Subsection (b) of this section. An
17-48 offense under this subsection is a Class A misdemeanor.
17-49 (e) The clerk may charge a reasonable fee sufficient to
17-50 recover the costs of obtaining criminal history information records
17-51 authorized by Subsection (a) of this section.
17-52 SUBPART H. COURT VISITOR PROGRAM
17-53 Sec. 127. COURT VISITOR PROGRAM. (a) Each statutory
17-54 probate court shall operate a court visitor program to assess the
17-55 conditions of wards and proposed wards. Another court that has
17-56 jurisdiction over a guardianship proceeding may operate a court
17-57 visitor program in accordance with the population needs and
17-58 financial abilities of the jurisdiction. A court that operates a
17-59 court visitor program shall use persons willing to serve without
17-60 compensation to the greatest extent possible.
17-61 (b) On request by any interested person, including a ward or
17-62 proposed ward, or on its own motion, and at any time before the
17-63 appointment of a guardian or during the pendency of a guardianship
17-64 of the person or estate, a court may appoint a court visitor to
17-65 evaluate the ward or proposed ward and provide a written report
17-66 that substantially complies with Subsection (c) of this section.
17-67 (c) A court visitor's report must include:
17-68 (1) a description of the nature and degree of capacity
17-69 and incapacity of the ward or proposed ward, including the medical
17-70 history of the ward or proposed ward, if reasonably available and
18-1 not waived by the court;
18-2 (2) a medical prognosis and a list of the treating
18-3 physicians of the ward or proposed ward, when appropriate;
18-4 (3) a description of the living conditions and
18-5 circumstances of the ward or proposed ward;
18-6 (4) a description of the social, intellectual,
18-7 physical, and educational condition of the ward or proposed ward;
18-8 (5) a statement that the court visitor has personally
18-9 visited or observed the ward or proposed ward;
18-10 (6) a statement of the date of the most recent visit
18-11 by the guardian, if one has been appointed;
18-12 (7) a recommendation as to any modifications needed in
18-13 the guardianship or proposed guardianship, including removal or
18-14 denial of the guardianship; and
18-15 (8) any other information required by the court.
18-16 (d) The court visitor shall file the report not later than
18-17 the 14th day after the date of the evaluation conducted by the
18-18 court visitor, and the court visitor making the report must swear,
18-19 under penalty of perjury, to its accuracy to the best of the court
18-20 visitor's knowledge and belief.
18-21 (e) A court visitor who has not expressed a willingness to
18-22 serve without compensation is entitled to reasonable compensation
18-23 for services in an amount set by the court and to be taxed as costs
18-24 in the proceeding.
18-25 <PART 3. ESTATES OF MINORS AND INCOMPETENTS>
18-26 <Sec. 108. ><Laws Applicable To Guardianships><. The
18-27 provisions, rules, and regulations which govern estates of
18-28 decedents shall apply to and govern guardianships, whenever the
18-29 same are applicable and are not inconsistent with any provision of
18-30 this Code.>
18-31 <Sec. 109. ><Persons Qualified To Serve as Guardians><.
18-32 (a) Natural Guardians. If the parents live together, both parents
18-33 are the natural guardians of the person of the minor children by
18-34 the marriage, and one of the parents, which may be either the
18-35 father or the mother, is entitled to be appointed guardian of their
18-36 estates. In event of disagreement as to which parent shall be
18-37 appointed, the court shall make the appointment on the basis of
18-38 which one is the better qualified to serve in that capacity. If
18-39 one parent is dead, the survivor is the natural guardian of the
18-40 person of the minor children, and is entitled to be appointed
18-41 guardian of their estates. The rights of parents who do not live
18-42 together are equal; the guardianship of their minor children shall
18-43 be assigned to one or the other, the interest of the children alone
18-44 being considered.>
18-45 <(b) Guardians of Orphans. These rules shall govern as to
18-46 orphans who are minors:>
18-47 <(1) If the last surviving parent has appointed no
18-48 guardian, the nearest ascendant in the direct line of such minor is
18-49 entitled to guardianship of both the person and estate of such
18-50 minor.>
18-51 <(2) If there be more than one ascendant in the same
18-52 degree in the direct line, they are equally entitled. The
18-53 guardianship shall be given to one or the other, according to
18-54 circumstances, only the best interest of the orphan being
18-55 considered.>
18-56 <(3) If the orphan has no ascendant in the direct
18-57 line, the guardianship shall be given to the nearest of kin. If
18-58 there be two or more in the same degree, the guardianship shall be
18-59 given to one or the other, according to circumstances, only the
18-60 best interest of the orphan being considered.>
18-61 <(4) If there be no relative of the minor qualified to
18-62 take the guardianship, or if no person entitled to such
18-63 guardianship applies therefor, the court shall appoint a qualified
18-64 person to be such guardian.>
18-65 <(c) Guardians for Persons Other Than Minors. If a person
18-66 is an incompetent, or one for whom it is necessary that a guardian
18-67 be appointed to receive funds due from any governmental source,
18-68 these rules shall govern:>
18-69 <(1) If such person has a spouse who is not
18-70 disqualified, such spouse shall be entitled to the guardianship in
19-1 preference to any other person.>
19-2 <(2) If there be no qualified spouse, the nearest of
19-3 kin to such person, who is not disqualified, or in case of refusal
19-4 by such spouse or nearest of kin to serve, then any other qualified
19-5 person shall be entitled to the guardianship.>
19-6 <(3) Where two or more persons are equally entitled,
19-7 the guardianship shall be given to one or the other, according to
19-8 the circumstances, only the best interest of the ward being
19-9 considered.>
19-10 <(d) Presumption Concerning Best Interest. It is presumed
19-11 not to be in the best interest of a ward to appoint a person as
19-12 guardian of the ward if the person has been finally convicted of
19-13 any sexual offense, sexual assault, aggravated assault, aggravated
19-14 sexual assault, injury to a child, abandoning or endangering a
19-15 child, or incest.>
19-16 <Sec. 110. ><Persons Disqualified To Serve as Guardians><. The
19-17 following persons shall not be appointed guardians:>
19-18 <(a) Minors.>
19-19 <(b) Persons whose conduct is notoriously bad.>
19-20 <(c) Incompetents.>
19-21 <(d) Those who are themselves parties, or whose father or
19-22 mother is a party to a lawsuit on the result of which the welfare
19-23 of the person for whom, or for whose estate, a guardian is to be
19-24 appointed, may depend.>
19-25 <(e) Those who are indebted to the person for whom or for
19-26 whose estate a guardian is to be appointed, unless they pay the
19-27 debt prior to the appointment, or who are asserting any claim to
19-28 any property, real or personal, adverse to the person for whom, or
19-29 for whose estate, the appointment is sought.>
19-30 <(g) Those who by reason of inexperience or lack of
19-31 education, or for other good reason, are shown to be incapable of
19-32 properly and prudently managing and controlling the ward or his
19-33 estate.>
19-34 <Sec. 111. ><Application for Appointment of Permanent
19-35 Guardian><. (a) A proceeding for the appointment of a guardian
19-36 shall be begun by written application filed in the court of the
19-37 county having venue thereof. Any person may make such application.
19-38 Such application shall be sworn and must state:>
19-39 <(1) The name, sex, date of birth, and residence, of
19-40 the person for whom the appointment of a guardian is sought;>
19-41 <(2) If a minor, the names of the parents and next of
19-42 kin of such persons, and whether either or both of the parents are
19-43 deceased;>
19-44 <(c) If a minor, a statement of whether the minor has
19-45 been the subject of a legal or conservatorship proceeding within
19-46 the preceding two-year period, and if so, the court involved, the
19-47 nature of the proceeding, and the final disposition, if any, of the
19-48 proceeding;>
19-49 <(3) If a person 60 years of age or older, the name
19-50 and address, to the best of the applicant's knowledge, of the
19-51 person's spouse, brother, sister, and children;>
19-52 <(4) A general description of the property comprising
19-53 such person's estate, if guardianship of the estate is sought;>
19-54 <(5) The facts which require that a guardian be
19-55 appointed;>
19-56 <(6) The name, relationship, and address of the person
19-57 whom the applicant desires to have appointed as guardian;>
19-58 <(7) Whether guardianship of the person and estate, or
19-59 of the person or of the estate, is sought;>
19-60 <(8) The social security number of the applicant and
19-61 of the person for whom the appointment of a guardian is sought; and>
19-62 <(9) Such other facts as show that the court has venue
19-63 over the proceeding.>
19-64 <(b) The portion of the application stating the information
19-65 required by Subsection (a)(3) of this section shall be sworn to by
19-66 the applicant.>
19-67 <Sec. 112. ><Judge May Cause Application to be Filed><.
19-68 Whenever it comes to the knowledge of the county judge that any
19-69 person whose legal domicile is in his county, or who is found
19-70 therein, is a minor, a person of unsound mind, or an habitual
20-1 drunkard, and is without a guardian of his person or of his estate
20-2 within this State, and that there is probable cause for the
20-3 exercise of his jurisdiction, he may cause proper proceedings to be
20-4 commenced and application to be made as provided in the preceding
20-5 Section for the appointment of a guardian of the person and of the
20-6 estate of such person, or of either. Upon the filing of such
20-7 application, process shall be issued and served as hereinafter
20-8 provided.>
20-9 <Sec. 113. ><Contest Of Proceedings><. Any person has the right
20-10 to appear and contest the appointment of a particular person as
20-11 guardian, or to contest any proceeding which he deems to be
20-12 injurious to the ward, or to commence any proceeding which he deems
20-13 beneficial to the ward.>
20-14 <Sec. 113A. ><Appointment of Attorney Ad Litem><. In a
20-15 proceeding under the provisions of this chapter for the appointment
20-16 of a guardian, the judge shall appoint an attorney ad litem to
20-17 represent the interests of the person for whom the permanent
20-18 guardianship is sought and shall allow the attorney ad litem a
20-19 reasonable fee for his services to be taxed as part of the costs.>
20-20 <Sec. 114. ><Facts Which Must Be Proved><. Before appointing a
20-21 guardian, the court must find:>
20-22 <(a) That the person for whom a guardian is to be appointed
20-23 is either a minor, a person of unsound mind, an habitual drunkard,
20-24 or a person for whom it is necessary to have a guardian appointed
20-25 to receive funds due such person from any governmental source. In
20-26 the last case, a certificate of the executive head, or his
20-27 representative, of the bureau, department, or agency of the
20-28 government through which such funds are to be paid, to the effect
20-29 that the appointment of a guardian is a condition precedent to the
20-30 payment of any funds due such person, shall be prima facie evidence
20-31 of the necessity for such appointment.>
20-32 <(b) That the court has venue of the case.>
20-33 <(c) That the person to be appointed guardian is not
20-34 disqualified to act as such and is entitled to be appointed; or, in
20-35 case no person who is entitled to appointment applies for it, that
20-36 the person appointed is a proper person to act as such guardian.>
20-37 <(d) That the rights of persons or property will be
20-38 protected by the appointment of a guardian.>
20-39 <(e) If the guardian is to be appointed for a minor, that
20-40 the creation of the guardianship is not for the primary purpose of
20-41 enabling the minor to establish residency for enrollment in a
20-42 school or school district in which the student would not otherwise
20-43 be eligible for enrollment.>
20-44 <Sec. 115. ><Jury Trial Not Prerequisite><. A jury trial,
20-45 verdict, and judgment that a person is of unsound mind or an
20-46 habitual drunkard shall not be prerequisite to an appropriate
20-47 finding and adjudication by the court and appointment of a guardian
20-48 for the person alleged to be of unsound mind or an habitual
20-49 drunkard; nor shall it be necessary that such person be present at
20-50 the trial.>
20-51 <Sec. 116. ><Only One Person To Be Appointed Guardian><. Only
20-52 one person can be appointed as guardian of the person or estate;
20-53 but one person may be appointed guardian of the person, and another
20-54 of the estate, whenever the court shall be satisfied that it will
20-55 be for the advantage of the ward to do so; but nothing herein shall
20-56 be held to prohibit the joint appointment of a husband and wife, or
20-57 of co-guardians duly appointed under the laws of another state,
20-58 territory or country, or of the District of Columbia.>
20-59 <Sec. 117. ><Appointment Of Guardian By Will><. The surviving
20-60 parent of a minor may, by will or written declaration, appoint any
20-61 qualified person to be guardian of the person of his or her
20-62 children after the death of such parent; and, if not disqualified,
20-63 such person shall also be entitled to be appointed guardian of
20-64 their estate after the death of such parent, upon compliance with
20-65 the provisions of this Code.>
20-66 <Sec. 118. ><Selection Of Guardian By Minor><. (a) When No
20-67 Other Guardian Has Been Appointed. When an application has been
20-68 filed for the guardianship of the person or estate, or of both, of
20-69 a minor who has attained the age of fourteen years, such minor may,
20-70 by writing filed with the clerk, make choice of the guardian,
21-1 subject to the court's approval of such choice.>
21-2 <(b) When Another Guardian Has Been Appointed. A minor upon
21-3 attaining the age of fourteen years may select another guardian
21-4 either of his person or estate, or both, if such minor has a
21-5 guardian appointed by the court, or if, having a guardian appointed
21-6 by will or written declaration of the parent of such minor, such
21-7 last named guardian dies, resigns, or is removed from guardianship;
21-8 and the court shall, if satisfied that the person selected is
21-9 suitable and competent, make such appointment and revoke the
21-10 letters of guardianship to the former guardian. Such selection
21-11 shall be made in open court, in person or by attorney, by making
21-12 application therefor.>
21-13 <Sec. 118A. ><Designation of Guardian Before Need Arises><.
21-14 (a) A person, other than a minor or an incompetent, may designate
21-15 by a written declaration persons to serve as guardian of the person
21-16 of the declarant or the estate of the declarant in the event the
21-17 declarant becomes incompetent. The declaration must be attested to
21-18 by at least two credible witnesses 14 years of age or older who are
21-19 not named as guardian or alternative guardian in the declaration.>
21-20 <(b) A declarant may, in the declaration, disqualify named
21-21 persons from serving as guardian of the declarant's person or
21-22 estate, and the persons named may not be appointed guardian under
21-23 any circumstances.>
21-24 <(c) The declaration must have attached a self-proving
21-25 affidavit signed by the declarant and the witnesses attesting to
21-26 the competence of the declarant and the execution of the
21-27 declaration. A properly executed and witnessed declaration and
21-28 affidavit are prima facie evidence that the declarant was competent
21-29 at the time he executed the declaration and that the guardian named
21-30 in the declaration would serve the best interests of the ward.>
21-31 <(d) The declaration and affidavit may be filed with the
21-32 court at any time after the application for appointment of a
21-33 guardian is filed and before a guardian is appointed. Unless the
21-34 court finds that the person designated in the declaration to serve
21-35 as guardian is disqualified or would not serve the best interests
21-36 of the ward, the court shall appoint the person as guardian in
21-37 preference to those otherwise entitled to serve as guardian under
21-38 this code. If the designated guardian fails to qualify, is dead,
21-39 refuses to serve, resigns, or dies after being appointed guardian,
21-40 or is otherwise unavailable to serve as guardian, the court shall
21-41 appoint the next qualified designated alternate guardian named in
21-42 the declaration. If the guardian and all alternate guardians fail
21-43 to qualify, are dead, refuse to serve, or later die or resign, the
21-44 court shall appoint another person to serve as otherwise provided
21-45 by this code.>
21-46 <(e) The declarant may revoke a declaration in any manner
21-47 provided for the revocation of a will under Section 63 of this
21-48 code, including by the subsequent reexecution of the declaration in
21-49 the manner required for the original declaration.>
21-50 <(f) If a declarant designates the declarant's spouse to
21-51 serve as guardian under this section, and the declarant is
21-52 subsequently divorced from that spouse before a guardian is
21-53 appointed, the provision of the declaration designating the spouse
21-54 has no effect.>
21-55 <(g) A declaration and affidavit may be in any form adequate
21-56 to clearly indicate the declarant's intention to designate a
21-57 guardian. The following forms may, but need not, be used:>
21-58 <DECLARATION OF GUARDIAN IN THE EVENT OF LATER>
21-59 <INCOMPETENCE OR NEED OF GUARDIAN>
21-60 <I, _______________, make this Declaration of Guardian, to
21-61 operate if the need for a guardian for me later arises.>
21-62 <1. I designate _______________ to serve as guardian of my
21-63 person, _______________ as first alternate guardian of my person,
21-64 _______________ as second alternate guardian of my person, and
21-65 _______________ as third alternate guardian of my person.>
21-66 <2. I designate _______________ to serve as guardian of my
21-67 estate, _______________ as first alternate guardian of my estate,
21-68 _______________ as second alternate guardian of my estate, and
21-69 _______________ as third alternate guardian of my estate.>
21-70 <3. If any guardian or alternate guardian dies, fails, or
22-1 refuses to qualify, or resigns, the next named alternate guardian
22-2 succeeds the prior named guardian and becomes my guardian.>
22-3 <4. I expressly disqualify the following persons from
22-4 serving as guardian of my person: _______________,
22-5 _______________, and _______________.>
22-6 <5. I expressly disqualify the following persons from
22-7 serving as guardian of my estate: _______________, _______________,
22-8 and _______________.>
22-9 <Signed this _____ day of __________, 19___.>
22-10 <_______________>
22-11 <Declarant>
22-12 <_______________> <_______________>
22-13 <Witness> <Witness>
22-14 <SELF-PROVING AFFIDAVIT>
22-15 <Before me, the undersigned authority, on this date
22-16 personally appeared the declarant, and _______________ and
22-17 _______________ as witnesses, and all being duly sworn, the
22-18 declarant said that the above instrument was his Declaration of
22-19 Guardian and that he had made and executed it for the purposes
22-20 therein expressed. The witnesses declared to me that they are each
22-21 14 years of age or older, that they saw the declarant sign the
22-22 declaration, that they signed the declaration as witnesses, and
22-23 that the declarant appeared to them to be of sound mind.>
22-24 <_______________>
22-25 <Declarant>
22-26 <_______________> <_______________>
22-27 <Affiant> <Affiant>
22-28 <Subscribed and sworn to before me by the above named
22-29 declarant and affiants on this _____ day of __________, 19___.>
22-30 <___________________________>
22-31 <Notary Public in and for>
22-32 <the State of Texas>
22-33 <My Commission expires:>
22-34 <Sec. 119. ><Failure Of Guardian To Qualify><. If a person
22-35 appointed guardian fails to qualify as such according to law, or
22-36 dies, resigns, or is removed, the court shall appoint another
22-37 guardian in his stead, upon application, but without further notice
22-38 or citation.>
22-39 <Sec. 120. ><Term Of Appointment Of Guardian><. Unless sooner
22-40 discharged according to law, a guardian remains in office until the
22-41 estate is closed in accordance with the provisions of this Code, as
22-42 hereinafter set out.>
22-43 <Sec. 121. ><Removal Of Guardianship To Another County May Be
22-44 Had><. (a) Application for Removal of Guardianship. When a
22-45 guardian, or any other person, desires to remove the transaction of
22-46 the business of the guardianship from one county to another, he
22-47 shall file in the court where such guardianship is pending a
22-48 written application asking authority to do so, and shall state in
22-49 such application his reason for desiring such removal.>
22-50 <(b) Sureties on Bond to Be Cited. Upon the filing of such
22-51 application, the sureties upon the bond of such guardian shall be
22-52 cited by personal service to appear and show cause why such
22-53 application should not be granted.>
22-54 <(c) When Guardian Shall Be Cited. If the application for
22-55 removal is filed by any person other than the guardian, the
22-56 guardian also shall be cited by personal service to appear and show
22-57 cause why such application should not be granted.>
22-58 <(d) Action of the Court. Upon the hearing of the
22-59 application, if no good cause be shown to the contrary, and if it
22-60 appears that the removal of the guardianship would be to the best
22-61 interest of the ward, the court shall enter an order authorizing
22-62 such removal upon the payment on behalf of the estate of all costs
22-63 that have accrued.>
22-64 <(e) Transcript of Record. When such order of removal has
22-65 been made, the clerk shall record all papers of the guardianship
22-66 required to be recorded that have not already been recorded, and
22-67 shall make out a full and complete certified transcript of all the
22-68 orders, decrees, judgments, and proceedings in such guardianship;
22-69 and, upon the payment of his fees therefor, shall transmit such
22-70 transcript, together with all the original papers in the case, to
23-1 the county clerk of the county to which such guardianship has been
23-2 ordered removed.>
23-3 <(f) When Removal Shall Become Effective. The order
23-4 removing a guardianship shall not take effect until such transcript
23-5 has been filed in the office of the county clerk of the county to
23-6 which such guardianship has been ordered removed, and until a
23-7 certificate of such fact from the clerk filing the same, under his
23-8 official seal, has been filed in the court making such order of
23-9 removal.>
23-10 <Sec. 122. ><Continuation of Guardianship><. When a
23-11 guardianship has been removed from one county to another in
23-12 accordance with the foregoing provisions of this Code, it shall be
23-13 proceeded with in the court to which it has been removed as if it
23-14 had been originally commenced in said court; but it shall not be
23-15 necessary to record any of the papers in the case that have been
23-16 recorded in the court from which the same has been removed.>
23-17 <Sec. 123. ><New Guardian May Be Appointed Upon Removal><. If
23-18 it appears to the court that the removal of the guardianship would
23-19 be to the best interest of the ward, but that, by virtue of such
23-20 removal, it will be unduly expensive to the estate, or unduly
23-21 inconvenient, for the guardian of the estate to continue to serve
23-22 in such capacity, the court may in its order of removal, revoke the
23-23 letters of guardianship and appoint a new guardian. In such event,
23-24 the former guardian shall account for and deliver the estate as is
23-25 provided in this Code in cases where guardians resign.>
23-26 <Sec. 124. NONRESIDENTS, APPOINTMENT OF GUARDIANS FOR.
23-27 (a) Appointment of Non-Resident Guardian. A non-resident or
23-28 non-residents of Texas, being natural persons or corporations,
23-29 resident of another state or of the District of Columbia, or of any
23-30 territory, or of any other nation or country, may be appointed and
23-31 qualified as guardian, or co-guardian of his or its or their
23-32 non-resident ward's estate situated in Texas in the same manner and
23-33 by the same procedure provided in this Code for the appointment and
23-34 qualification of a resident of this State as guardian of the
23-35 estates of minors, persons of unsound mind, or habitual drunkards;
23-36 provided that, by proceedings in and decree or decrees of a court
23-37 of competent jurisdiction in another state, the District of
23-38 Columbia, a territory, or another nation or country, of his or its
23-39 or their residence, such non-resident applicant or applicants shall
23-40 have been previously duly appointed and are still qualified as
23-41 guardian, co-guardians, tutor, curator, committee, or fiduciary
23-42 legal representative by whatever name known in such foreign
23-43 jurisdiction, of the property or estate of his or its or their ward
23-44 situated within the jurisdiction of such foreign court, whether
23-45 such ward be a minor, a person of unsound mind, or an habitual
23-46 drunkard; and provided further that, with his or its or their
23-47 written application for appointment in the county court of any
23-48 county in this state where all or part of such ward's estate is
23-49 situated in this state, such non-resident applicant or applicants
23-50 file also a full and complete transcript of the proceedings from
23-51 the records of the court in which he or it or they were appointed
23-52 in the jurisdiction of his or its or their residence, evidencing
23-53 his or its or their due appointment and qualification as such
23-54 guardian, co-guardians, tutor, curator, committee, or other
23-55 fiduciary legal representative, of his or its or their ward's
23-56 property or estate, which transcript shall be certified to and
23-57 attested by the clerk of such foreign court, if there be a clerk,
23-58 and, if there be no clerk, then by the officer of said court
23-59 charged by law with the custody of the records thereof, under the
23-60 seal of such court, if there be a seal, to which transcript shall
23-61 be attached the certificate of the judge, chief justice or
23-62 presiding magistrate, as the case may be, of such foreign court to
23-63 the effect that the said attestation of such transcript by the
23-64 clerk or legal custodian of the court records is in due form; and
23-65 provided further that, without the necessity of notice or citation
23-66 of any character, an order of appointment be made and entered and
23-67 that such non-resident applicant or applicants thus appointed,
23-68 qualify by making and filing oath and bond, subject to the court's
23-69 approval in all respects the same as required of residents thus
23-70 appointed, and file with the court a power of attorney appointing a
24-1 resident agent to accept service of process in all actions or
24-2 proceedings with respect to the estate, whereupon the clerk shall
24-3 issue the letters of guardianship to such non-resident guardian or
24-4 co-guardians. Guardians so qualified shall file inventory and
24-5 appraisement of the estate of the ward in this State subject to the
24-6 jurisdiction of the court, as in ordinary cases, and shall be
24-7 subject to and controlled by all applicable provisions of this Code
24-8 with respect to the handling and settlement of estates by domestic
24-9 guardians.>
24-10 <(b) Domestic Guardian of Non-Resident. When a non-resident
24-11 minor or incompetent owns property in this State, guardianship of
24-12 such estate may be granted when it is made to appear that a
24-13 necessity exists therefor, in like manner as if such minor or
24-14 incompetent resided in this State. The court making the grant of
24-15 such guardianship shall be in the county in which the principal
24-16 estate of the ward is situated, and said court shall take all such
24-17 action and make all such orders with respect to the estate of the
24-18 ward, for the maintenance, support and care, or the education, if
24-19 necessary, of the ward, out of the proceeds of such ward's estate,
24-20 in like manner as if the ward were a resident of this State, and
24-21 guardianship of the person and estate of the ward had been granted
24-22 by said court, and the ward had been sent abroad by the court for
24-23 education or treatment. In the event there be a qualified
24-24 non-resident guardian of such estate, who later desires to qualify
24-25 in this State, as hereinabove set out, such non-resident guardian
24-26 may do so, and it shall be grounds for closing the resident
24-27 guardianship.>
24-28 <Sec. 125. ><Validation Of Certain Letters Of Guardianship
24-29 Heretofore Issued><. All present existing letters of guardianship
24-30 heretofore issued to nonresident guardians with or without the
24-31 procedure, in whole or in part, and with or without notices and
24-32 citations required in cases of resident guardians, are hereby
24-33 validated as of their respective dates, in so far as the absence of
24-34 such procedure, notices, and citations are concerned, as are also
24-35 all otherwise valid conveyances, mineral leases, and other acts of
24-36 such guardians so qualified and acting in connection therewith
24-37 under supporting orders of county and probate courts of this state;
24-38 provided, however, that this provision shall not be applicable to
24-39 any letters, conveyance, lease, or other act of such guardian which
24-40 is involved in any lawsuit pending in this state on the effective
24-41 date of this Code wherein the absence of such procedure or of such
24-42 notices or citations is an issue.>
24-43 <Sec. 126. ><Removal Of Ward's Property From The State><. Upon
24-44 the recovery of the property of the ward, if it be personal
24-45 property, any non-resident guardian, whether qualified under
24-46 provisions of this Code or not, may remove the same out of the
24-47 state, unless such removal would conflict with the tenure of such
24-48 property, or with the terms and limitations under which it is held;
24-49 but there shall be no removal from the state of any of such
24-50 property until all debts known to exist against the estate in this
24-51 state have been paid, or until the payment of such debts has been
24-52 secured by bond payable to and approved by the judge of the court
24-53 in which the proceedings are pending in this state.>
24-54 <Sec. 127. ><Delivery Of Property><. Any resident executor,
24-55 administrator, or guardian, having any of the estate of a ward, may
24-56 be ordered by the court to deliver the same to a duly qualified and
24-57 acting non-resident guardian of such ward.>
24-58 <Sec. 127A. ><Guardianship of Person Missing on Public
24-59 Service><. (a) Not less than six months after a person is reported
24-60 by an executive department of the United States to be a prisoner of
24-61 war or missing on the public service of the United States, any
24-62 person may file a written application for the appointment of a
24-63 guardian of the person of the missing person in the court of the
24-64 county of residence of the missing person's spouse or, if there is
24-65 no spouse, in the county of residence of a parent or child of the
24-66 missing person, or if there is no parent or child, in the county of
24-67 residence of the missing person's next of kin.>
24-68 <(b) The application shall state:>
24-69 <(1) the name, sex, and last known residence of the
24-70 person for whom the appointment of a guardian is sought;>
25-1 <(2) the executive department issuing the report, the
25-2 date of the report, and the last known whereabouts of the missing
25-3 person;>
25-4 <(3) the names and addresses of the missing person's
25-5 spouse, children, and parents or, if there is no spouse, child, or
25-6 parent, the name and address of the person's next of kin and facts
25-7 that show that the court has venue of the proceeding;>
25-8 <(4) the reason for the appointment and the interest
25-9 of the applicant in the appointment; and>
25-10 <(5) the name, relationship, and address of the person
25-11 whom the applicant desires to have appointed as guardian.>
25-12 <(c) The court shall appoint an attorney to represent the
25-13 interests of the missing person and shall allow the attorney a
25-14 reasonable fee, not to exceed $25, for his services to be taxed as
25-15 part of the costs.>
25-16 <(d) The attorney appointed to represent the interest of the
25-17 missing person shall be personally served with citation to appear
25-18 and answer the application for the appointment of a guardian. The
25-19 clerk of the court shall issue a notice setting forth that an
25-20 application has been filed for the guardianship of the person of
25-21 the missing person and by whom the application is made. The notice
25-22 shall cite all persons interested in the welfare of that person to
25-23 appear at the time and place stated in the notice and contest the
25-24 application, if they so desire. The notice shall be served by
25-25 posting, and the sheriff or other officer posting the notice shall
25-26 return the original, signed officially, stating thereon in writing
25-27 the time and place that he posted the copy of the notice. In
25-28 addition to posting the notice, a copy of the notice shall be
25-29 mailed by registered or certified mail to the spouse, to each
25-30 child, to each parent of the missing person, and to any other
25-31 person that the court deems appropriate.>
25-32 <(e) Any person has the right to appear and contest the
25-33 appointment of a particular person as guardian of the missing
25-34 person, or to contest any guardianship proceeding which he deems to
25-35 be injurious to the missing person, or to commence a guardianship
25-36 proceeding which he deems beneficial to the missing person.>
25-37 <(f) Before appointing a guardian, the court must find:>
25-38 <(1) that the person has been reported missing by an
25-39 executive department of the United States and still is missing;>
25-40 <(2) that the court has venue of the proceeding and
25-41 that there is not an existing guardianship of this person;>
25-42 <(3) that the person applying for appointment as the
25-43 guardian is a proper person to act as the guardian; and>
25-44 <(4) that the rights of the missing person will be
25-45 protected by the appointment of the guardian.>
25-46 <(g) After the hearing, the court shall dismiss the
25-47 application or enter an order appointing a guardian to protect the
25-48 rights of the missing person and may impose in the order any
25-49 conditions or restrictions it deems necessary to protect the rights
25-50 of the missing person. In appointing the guardian, the court shall
25-51 give preference to the spouse of the missing person, and if there
25-52 is no spouse shall give preference to parents and children of the
25-53 missing person.>
25-54 <(h) The jurisdiction of the court over the guardianship is
25-55 continuing. If the missing person returns, on motion of any
25-56 interested person after a notice, stating that the motion has been
25-57 filed and specifying the date of a hearing, has been issued and
25-58 served on the formerly missing person as in other cases, the court
25-59 shall amend or vacate the original order of guardianship. A copy
25-60 of the motion shall accompany the notice.>
25-61 SECTION 9. Subsections (b) and (c), Section 5, Texas Probate
25-62 Code, are amended to read as follows:
25-63 (b) In those counties where there is no statutory probate
25-64 court, county court at law or other statutory court exercising the
25-65 jurisdiction of a probate court, all applications, petitions and
25-66 motions regarding probate, administrations, guardianships, <limited
25-67 guardianships,> and mental illness matters shall be filed and heard
25-68 in the county court, except that in contested probate matters, the
25-69 judge of the county court may on his own motion (or shall on the
25-70 motion of any party to the proceeding, according to the motion)
26-1 request as provided by Section 25.0022, Government Code, the
26-2 assignment of a statutory probate judge to hear the contested
26-3 portion of the proceeding, or transfer the contested portion of the
26-4 proceeding to the district court, which may then hear contested
26-5 matter as if originally filed in district court. The county court
26-6 shall continue to exercise jurisdiction over the management of the
26-7 estate with the exception of the contested matter until final
26-8 disposition of the contested matter is made by the assigned judge
26-9 or the district court. In contested matters transferred to the
26-10 district court in those counties, the district court, concurrently
26-11 with the county court, shall have the general jurisdiction of a
26-12 probate court. Upon resolution of all pending contested matters,
26-13 the contested portion of the probate proceeding shall be
26-14 transferred by the district court to the county court for further
26-15 proceedings not inconsistent with the orders of the district court.
26-16 If a contested portion of the proceeding is transferred to a
26-17 district court under this subsection, the clerk of the district
26-18 court may perform in relation to the transferred portion of the
26-19 proceeding any function a county clerk may perform in that type of
26-20 contested proceeding.
26-21 (c) In those counties where there is a statutory probate
26-22 court, county court at law, or other statutory court exercising the
26-23 jurisdiction of a probate court, all applications, petitions and
26-24 motions regarding probate, administrations, guardianships, <limited
26-25 guardianships,> and mental illness matters shall be filed and heard
26-26 in such courts and the constitutional county court, rather than in
26-27 the district courts, unless otherwise provided by the legislature,
26-28 and the judges of such courts may hear any of such matters sitting
26-29 for the judge of any of such courts. In contested probate matters,
26-30 the judge of the constitutional county court may on his own motion,
26-31 and shall on the motion of any party to the proceeding, transfer
26-32 the proceeding to the statutory probate court, county court at law,
26-33 or other statutory court exercising the jurisdiction of a probate
26-34 court, which may then hear the proceeding as if originally filed in
26-35 such court.
26-36 SECTION 10. Subsections (a) and (b), Section 131, Texas
26-37 Probate Code, are amended to read as follows:
26-38 (a) Necessity of Appointment. Whenever it appears to the
26-39 county judge that the interest of any minor, incapacitated person
26-40 as defined in Section 108 <130A> of this code, or common or
26-41 habitual drunkard, and his or her estate, or either of them,
26-42 requires immediate appointment of a personal representative, he
26-43 shall, by written order, appoint a suitable temporary
26-44 representative, with such limited powers as the circumstances of
26-45 the case require, and such appointment may be made permanent, as
26-46 herein provided.
26-47 (b) A written application for the appointment of a temporary
26-48 guardian may be filed prior to the court's appointment of such
26-49 guardian but in no case shall such application be filed later than
26-50 the end of the next business day of the court after appointment of
26-51 such temporary guardian. The application shall state:
26-52 (i) the name and address of the subject of the
26-53 guardianship proceeding;
26-54 (ii) the danger to the person or property alleged to
26-55 be imminent;
26-56 (iii) the type of appointment and the particular
26-57 protection and assistance being requested;
26-58 (iv) the facts and reasons supporting the allegations
26-59 and requests;
26-60 (v) the name, address, and qualification of the
26-61 proposed temporary guardian;
26-62 (vi) the name, address, and interest of the applicant;
26-63 <and>
26-64 (vii) the social security numbers of the applicant and
26-65 respondent; and
26-66 (viii) if applicable, that the proposed temporary
26-67 guardian is a private professional guardian who has complied with
26-68 the requirements of Section 126 of this code.
26-69 SECTION 11. Section 185, Texas Probate Code, is amended to
26-70 read as follows:
27-1 Sec. 185. ISSUANCE AND RENEWAL OF LETTERS OF GUARDIANSHIP.
27-2 (a) When a person appointed guardian has qualified as such, by
27-3 taking the oath and giving the bond required by law, if bond be
27-4 required, the clerk shall issue to him a certificate under seal,
27-5 stating the fact of such appointment and qualification and the date
27-6 thereof and the date of expiration, which certificate shall
27-7 constitute letters of guardianship, and be evidence of the
27-8 authority of such person to act as guardian.
27-9 (b) Letters of guardianship expire one year and 90 days
27-10 after the date of issuance unless renewed.
27-11 (c) The clerk shall renew letters of guardianship on the
27-12 receipt and approval by the court of the guardian's annual
27-13 accounting. If the guardian's annual accounting is disapproved,
27-14 the clerk may not issue further letters of guardianship to that
27-15 guardian relating to the ward or the ward's estate unless ordered
27-16 by the court.
27-17 SECTION 12. Subsections (a) and (b), Section 222, Texas
27-18 Probate Code, are amended to read as follows:
27-19 (a) Without Notice. (1) The court, on its own motion or on
27-20 motion of any interested person, and without notice, may remove any
27-21 personal representative, appointed under provisions of this Code,
27-22 who:
27-23 (A) <(1)> Neglects to qualify in the manner and
27-24 time required by law; <or>
27-25 (B) <(2)> Fails to return within ninety days
27-26 after qualification, unless such time is extended by order of the
27-27 court, an inventory of the property of the estate and list of
27-28 claims that have come to his knowledge; <or>
27-29 (C) <(3)> Having been required to give a new
27-30 bond, fails to do so within the time prescribed; <or>
27-31 (D) <(4)> Absents himself from the State for a
27-32 period of three months at one time without permission of the court,
27-33 or removes from the State; <or>
27-34 (E) <(5)> Cannot be served with notices or other
27-35 processes by reason of the fact that his whereabouts are unknown,
27-36 or by reason of the fact that he is eluding service;
27-37 (F) Has misapplied, embezzled, or removed from
27-38 the State, or is about to misapply, embezzle, or remove from the
27-39 State, all or any part of the property committed to the guardian's
27-40 care; or
27-41 (G) Has cruelly treated a ward or has neglected
27-42 to educate or maintain the ward as liberally as the means of the
27-43 ward and the condition of the ward's estate permit.
27-44 (2) The court may remove a personal representative
27-45 under Paragraph (F) or (G), Subdivision (1), of this subsection
27-46 only on the presentation of clear and convincing evidence given
27-47 under oath.
27-48 (b) With Notice. The court may remove a personal
27-49 representative on its own motion, or on the complaint of any
27-50 interested person, after the personal representative has been cited
27-51 by personal service to answer at a time and place fixed in the
27-52 notice, when:
27-53 (1) Sufficient grounds appear to support belief that
27-54 he has misapplied, embezzled, or removed from the state, or that he
27-55 is about to misapply, embezzle, or remove from the state, all or
27-56 any part of the property committed to his care;
27-57 (2) He fails to return any account which is required
27-58 by law to be made;
27-59 (3) He fails to obey any proper order of the court
27-60 having jurisdiction with respect to the performance of his duties;
27-61 (4) He is proved to have been guilty of gross
27-62 misconduct, or mismanagement in the performance of his duties;
27-63 (5) He becomes an incompetent, or is sentenced to the
27-64 penitentiary, or from any other cause becomes incapable of properly
27-65 performing the duties of his trust;
27-66 (6) As executor or administrator, he fails to make a
27-67 final settlement within three years after the grant of letters,
27-68 unless the time be extended by the court upon a showing of
27-69 sufficient cause supported by oath;
27-70 (7) As executor or administrator, he fails to timely
28-1 file the notice required by Section 128A of this code; <or>
28-2 (8) As guardian of the person, he cruelly treats the
28-3 ward, or neglects to educate or maintain the ward as liberally as
28-4 the means of such ward and the condition of his estate permit; or
28-5 (9) He fails to comply with the requirements of
28-6 Section 126 of this code.
28-7 SECTION 13. Part 3, Chapter VII, Texas Probate Code, is
28-8 amended by adding Section 222A to read as follows:
28-9 Sec. 222A. REINSTATEMENT AFTER REMOVAL. (a) Not later than
28-10 the 10th day after the date the court signs the order of removal, a
28-11 personal representative who is removed under Subsection (a)(1)(F)
28-12 or (G), Section 222, of this code may file an application with the
28-13 court for a hearing to determine whether the personal
28-14 representative should be reinstated.
28-15 (b) On the filing of an application for a hearing under this
28-16 section, the court clerk shall issue a notice stating that the
28-17 application for reinstatement was filed, the name of the ward or
28-18 decedent, and the name of the applicant. The clerk shall issue the
28-19 notice to the applicant, the ward, a person interested in the
28-20 welfare of the ward, the decedent's estate, or the ward's estate
28-21 and, if applicable, to a person who has control of the care and
28-22 custody of the ward. The notice must cite all persons interested
28-23 in the estate or welfare of the ward to appear at the time and
28-24 place stated in the notice if they wish to contest the application.
28-25 (c) If, at the conclusion of a hearing under this section,
28-26 the court is satisfied by a preponderance of the evidence that the
28-27 applicant did not engage in the conduct that directly led to the
28-28 applicant's removal, the court shall set aside an order appointing
28-29 a successor representative, if any, and shall enter an order
28-30 reinstating the applicant as personal representative of the ward or
28-31 estate.
28-32 (d) If the court sets aside the appointment of a successor
28-33 representative under this section, the court may require the
28-34 successor representative to prepare and file, under oath, an
28-35 accounting of the estate and to detail the disposition the
28-36 successor has made of the property of the estate.
28-37 SECTION 14. Subsection (b), Section 241, Texas Probate Code,
28-38 is amended to read as follows:
28-39 (b) Compensation of Guardians. The court may authorize
28-40 compensation for a guardian serving as guardian of the person alone
28-41 from available funds of the ward's estate. The court shall set the
28-42 compensation in an amount not exceeding five percent (5%) of the
28-43 ward's income. In determining whether to authorize guardian
28-44 compensation, the court shall consider factors such as total
28-45 monthly income of the ward and whether the ward is a Medicaid
28-46 recipient <A guardian of the person alone is entitled to no
28-47 compensation>. The guardian or the temporary guardian of the
28-48 estate, or of the person and estate, shall not be entitled to, or
28-49 receive, any fee or commission on the estate of the ward when it is
28-50 first delivered to him; but shall be entitled to a fee of five
28-51 percent <per cent> (5%) on the gross income of the ward's estate
28-52 and five percent <per cent> (5%) on all money paid out on a finding
28-53 by the court that the guardian has taken care of and managed the
28-54 estate in compliance with the standards of this code. The term
28-55 "money paid out" shall not be construed to include any money loaned
28-56 or invested or paid over on the settlement of the guardianship. If
28-57 the guardian manages a farm, ranch, factory, or other business of
28-58 his ward, or if the compensation as calculated above is
28-59 unreasonably low, the court may allow him reasonable compensation
28-60 for his services. The court may, on application of an interested
28-61 person or on its own motion, deny a fee allowed by this subsection
28-62 in whole or in part if:
28-63 (1) the court finds that the guardian has not taken
28-64 care of and managed estate property prudently; or
28-65 (2) the guardian has been removed under Section 222 of
28-66 this code.
28-67 SECTION 15. Subsection (c), Section 399, Texas Probate Code,
28-68 is amended to read as follows:
28-69 (c) Guardians of the Person. (1) The guardian of the
28-70 person, when there is a separate guardian of the estate, shall at
29-1 the expiration of twelve (12) months from the date of his
29-2 qualification and receipt of letters, and annually thereafter,
29-3 return to the court his sworn account showing each item of receipts
29-4 and disbursements for the support and maintenance of the ward, his
29-5 education when necessary, and support and maintenance of the ward's
29-6 dependents, when authorized by order of court.
29-7 (2) The guardian of the person, whether or not there
29-8 is a separate guardian of the estate, shall submit to the court an
29-9 annual report by sworn affidavit that contains the following
29-10 information:
29-11 a. the guardian's current name, address, and
29-12 phone number;
29-13 b. the ward's current:
29-14 (i) name, address, and phone number; and
29-15 (ii) age and date of birth;
29-16 c. the type of home in which the ward resides,
29-17 described as the ward's own; a nursing, guardian's, foster, or
29-18 boarding home; a relative's home, and the ward's relationship to
29-19 the relative; a hospital or medical facility; or other type of
29-20 residence;
29-21 d. the length of time the ward has resided in
29-22 the present home and, if there has been a change in the ward's
29-23 residence in the past year, the reason for the change;
29-24 e. the date the guardian most recently saw the
29-25 ward, and how frequently the guardian has seen the ward in the past
29-26 year;
29-27 f. a statement indicating whether or not the
29-28 guardian has possession or control of the ward's estate;
29-29 g. the following statements concerning the
29-30 ward's health during the past year:
29-31 (i) whether the ward's mental health has
29-32 improved, deteriorated, or remained unchanged, and a description if
29-33 there has been a change; and
29-34 (ii) whether the ward's physical health
29-35 has improved, deteriorated, or remained unchanged, and a
29-36 description if there has been a change;
29-37 h. a statement concerning whether or not the
29-38 ward has regular medical care and the ward's treatment or
29-39 evaluation by any of the following persons during the last year,
29-40 including the name of that person and the treatment involved:
29-41 (i) a physician;
29-42 (ii) a psychiatrist, psychologist, or
29-43 other mental health care provider;
29-44 (iii) a dentist;
29-45 (iv) a social or other caseworker; or
29-46 (v) another individual who provided
29-47 treatment;
29-48 i. a description of the ward's activities during
29-49 the past year, including recreational, educational, social, and
29-50 occupational activities or, if no activities are available or if
29-51 the ward is unable or has refused to participate in them, a
29-52 statement to that effect;
29-53 j. the guardian's evaluation of the ward's
29-54 living arrangements as excellent, average, or below average,
29-55 including an explanation if the conditions are below average;
29-56 k. the guardian's evaluation of whether the ward
29-57 is content or unhappy with the ward's living arrangements;
29-58 l. the guardian's evaluation of unmet needs of
29-59 the ward;
29-60 m. a statement of whether or not the guardian's
29-61 power should be increased, decreased, or unaltered, including an
29-62 explanation if a change is recommended; and
29-63 n. any additional information the guardian
29-64 desires to share with the court regarding the ward <All who are
29-65 guardians of the person shall include in their reports facts
29-66 concerning each ward's physical welfare, his well-being, and his
29-67 progress in education, if the latter be pertinent>.
29-68 (3) If the ward is deceased, the guardian shall
29-69 provide the court with the date and place of death, if known, in
29-70 lieu of the information about the ward otherwise required to be
30-1 provided in the annual report.
30-2 (4) Unless the judge is satisfied that the facts
30-3 stated are true, he shall issue such orders as are necessary for
30-4 the best interest of the ward.
30-5 SECTION 16. Sections 7 and 130, Texas Probate Code, are
30-6 repealed.
30-7 SECTION 17. Part 5, Chapter V, Texas Probate Code, is
30-8 repealed.
30-9 SECTION 18. Chapter IX, Texas Probate Code, is repealed.
30-10 SECTION 19. A court may modify any guardianship in effect on
30-11 September 1, 1993, to conform with the requirements of the Texas
30-12 Probate Code, as amended by this Act, on the court's own motion or
30-13 on application by the ward, the guardian, or any other interested
30-14 person or entity.
30-15 SECTION 20. This Act takes effect September 1, 1993.
30-16 SECTION 21. Except as provided by Section 19 of this Act,
30-17 the change in law made by this Act applies only to proceedings for
30-18 the appointment of a guardian instituted on or after the effective
30-19 date of this Act. Proceedings for the appointment of a guardian
30-20 instituted before the effective date of this Act are governed by
30-21 the law in effect when the proceedings were instituted, and the
30-22 former law is continued in effect for that purpose.
30-23 SECTION 22. Notwithstanding Subsection (b), Section 185,
30-24 Texas Probate Code, as added by this Act, a letter of guardianship
30-25 issued before the effective date of this Act expires, unless
30-26 renewed as provided by Subsection (c), Section 185, Texas Probate
30-27 Code, as added by this Act, on the date of the required annual
30-28 accounting immediately following the effective date of this Act.
30-29 SECTION 23. (a) Not later than October 1, 1993, the
30-30 commissioner of health and human services shall appoint an advisory
30-31 committee on development of a uniform assessment tool composed of:
30-32 (1) one representative each from the Texas Department
30-33 of Health, Texas Department of Human Services, and Texas Department
30-34 of Mental Health and Mental Retardation;
30-35 (2) one licensed psychologist who specializes in the
30-36 treatment of persons with mental retardation;
30-37 (3) two members of a private association of persons
30-38 who advocate on the behalf of or in the interest of persons with
30-39 mental retardation or persons with a developmental disability;
30-40 (4) one parent of a person with mental retardation or
30-41 a developmental disability;
30-42 (5) two professionals who work with persons who have a
30-43 developmental disability; and
30-44 (6) two persons who advocate on behalf of or in the
30-45 interest of elderly persons.
30-46 (b) The committee shall designate one member to serve as
30-47 presiding officer.
30-48 (c) The committee shall develop a uniform assessment tool to
30-49 be used by the staff of a facility regulated or operated by the
30-50 Texas Department of Health, Texas Department of Human Services, or
30-51 Texas Department of Mental Health and Mental Retardation to assess
30-52 the capacity of an elderly person, a person with mental
30-53 retardation, or a person with a developmental disability to make
30-54 decisions concerning the person's own welfare and financial
30-55 affairs, including the person's:
30-56 (1) need for a guardianship and the type of
30-57 guardianship that is appropriate for the person;
30-58 (2) ability to care for the person's own physical
30-59 health or to manage the person's own financial affairs;
30-60 (3) ability to provide food, clothing, or shelter for
30-61 himself or herself;
30-62 (4) decision-making ability; and
30-63 (5) ability to communicate a decision.
30-64 (d) Each agency represented on the committee shall provide
30-65 the committee with staff support.
30-66 (e) Members of the committee receive no compensation but are
30-67 entitled to reimbursement for reasonable expenses incurred in
30-68 performing official duties in accordance with the General
30-69 Appropriations Act.
30-70 (f) The committee shall make its recommendations to the
31-1 commissioner of health and human services, Texas Department of
31-2 Human Services, Texas Department of Health, and Texas Department of
31-3 Mental Health and Mental Retardation not later than June 1, 1994.
31-4 SECTION 24. (a) The Texas Department of Health, Texas
31-5 Department of Human Services, and Texas Department of Mental Health
31-6 and Mental Retardation shall adopt the memorandum of understanding
31-7 prescribed by Section 533.044, Health and Safety Code, as added by
31-8 this Act, not later than September 1, 1994.
31-9 (b) In adopting the memorandum of understanding, the Texas
31-10 Department of Health, Texas Department of Human Services, and Texas
31-11 Department of Mental Health and Mental Retardation shall consider
31-12 the recommendations of the committee appointed under Section 23 of
31-13 this Act.
31-14 SECTION 25. A private professional guardian who is serving
31-15 as guardian of a ward on the effective date of this Act shall apply
31-16 for certification under Section 126, Texas Probate Code, as added
31-17 by this Act, not later than October 1, 1993.
31-18 SECTION 26. The change in law made by Section 14 of this Act
31-19 applies only to compensation for guardians appointed on or after
31-20 the effective date of this Act. Compensation for a guardian
31-21 appointed before the effective date of this Act is covered by the
31-22 law in effect when the guardian was appointed, and the former law
31-23 is continued in effect for that purpose.
31-24 SECTION 27. The change in law made by Section 15 of this Act
31-25 applies only to reports submitted to the court on or after January
31-26 1, 1994. A report submitted before the effective date of this Act
31-27 is covered by the law in effect at the time the report is
31-28 submitted, and the former law is continued in effect for that
31-29 purpose.
31-30 SECTION 28. The change in law made by Section 18 of this Act
31-31 applies only to the appointment of a guardian based on information
31-32 that is filed under Section 415, Texas Probate Code, on or after
31-33 the effective date of this Act. An appointment of a guardian based
31-34 on information that is filed before the effective date of this Act
31-35 is governed by the law in effect on the date the information was
31-36 filed, and the former law is continued in effect for that purpose.
31-37 SECTION 29. The importance of this legislation and the
31-38 crowded condition of the calendars in both houses create an
31-39 emergency and an imperative public necessity that the
31-40 constitutional rule requiring bills to be read on three several
31-41 days in each house be suspended, and this rule is hereby suspended.
31-42 * * * * *
31-43 Austin,
31-44 Texas
31-45 April 20, 1993
31-46 Hon. Bob Bullock
31-47 President of the Senate
31-48 Sir:
31-49 We, your Committee on Jurisprudence to which was referred S.B. No.
31-50 236, have had the same under consideration, and I am instructed to
31-51 report it back to the Senate with the recommendation that it do not
31-52 pass, but that the Committee Substitute adopted in lieu thereof do
31-53 pass and be printed.
31-54 Henderson,
31-55 Chairman
31-56 * * * * *
31-57 WITNESSES
31-58 FOR AGAINST ON
31-59 ___________________________________________________________________
31-60 Name: Jan Thompson x
31-61 Representing: Tx Health Care Assoc.
31-62 City: Austin
31-63 -------------------------------------------------------------------
31-64 Name: Colleen Colton x
31-65 Representing: Myself
31-66 City: Fort Worth
31-67 -------------------------------------------------------------------
31-68 FOR AGAINST ON
31-69 ___________________________________________________________________
31-70 Name: James T. Downes, Jr. x
32-1 Representing: Harris County
32-2 City: Houston
32-3 -------------------------------------------------------------------
32-4 Name: Pat Ferchill x
32-5 Representing: Self
32-6 City: Ft. Worth
32-7 -------------------------------------------------------------------
32-8 Name: Guy Herman x
32-9 Representing: Judge-Probate Ct.
32-10 City: Austin
32-11 -------------------------------------------------------------------
32-12 Name: Anne Miller x
32-13 Representing: Lutheran Social Services
32-14 City: Austin
32-15 -------------------------------------------------------------------
32-16 Name: Mike Bright x
32-17 Representing: Disability Policy Consortium
32-18 City: Austin
32-19 -------------------------------------------------------------------
32-20 Name: Charlotte Flynn x
32-21 Representing: Gray Panthers
32-22 City: Austin
32-23 -------------------------------------------------------------------
32-24 Name: Belinda Gilzow-Carlton x
32-25 Representing: Coalition of Texans w/Disabil
32-26 City: Austin
32-27 -------------------------------------------------------------------
32-28 Name: Sara Kelley x
32-29 Representing: Gray Panthers
32-30 City: Austin
32-31 -------------------------------------------------------------------
32-32 Name: Mary Jo Magruder x
32-33 Representing: Tx Plan. Cncl for Dev. Disabi
32-34 City: Austin
32-35 -------------------------------------------------------------------
32-36 Name: David Latimer x
32-37 Representing: Tx Assoc. Homes for Aging
32-38 City: Austin
32-39 -------------------------------------------------------------------
32-40 Name: David B. Sloane x
32-41 Representing: Advocacy, Inc.
32-42 City: Austin
32-43 -------------------------------------------------------------------
32-44 Name: Becky Brownlee x
32-45 Representing: Former HHS Cmte. Staff
32-46 City: Austin
32-47 -------------------------------------------------------------------
32-48 Name: Susan Hollon x
32-49 Representing: Tx Guardianship Assoc.
32-50 City: Austin
32-51 -------------------------------------------------------------------