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  -------------------------------------------------------------------