BILL ANALYSIS
C.S.H.B. 2029
By: Naishtat
May 5, 1995
Committee Report (Substituted)
BACKGROUND
Substantial changes to provisions of the Texas Probate Code
regarding guardianship were adopted during the 1993 legislative
session. Technical problems with the Texas Probate Code and other
statutes which related to the prior guardianship provisions have
been discovered. The State Bar's Real Estate, Probate, and Trust
Law Section organized a guardianship study group made up of probate
practitioners and probate judges to propose technical corrections
to the recent guardianship changes. The work of the Section's
guardianship committee was drafted into bill format and submitted
to the State Bar for its authorization to allow the Section to
sponsor the Legislation. The State Bar granted the authority in
September of 1994.
PURPOSE
The purpose of this bill is to make technical corrections to the
current guardianship provisions in a number of ways. One is by
reorganizing certain sections so that provisions regarding similar
subject matter are grouped together. Another is to both change and
add certain language so that the intent of the 1993 guardianship
revisions will be effectuated. These changes will make the laws
relating to guardianship easier to use, thus aiding probate judges,
probate attorneys and the general public in dealing with the
welfare of incapacitated persons.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly
grant any additional rulemaking authority to a state officer,
department, agency or institution.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 594.036(b) of the Health and Safety
Code by changing the word "incompetent" to "incapacitated" in order
to conform the provisions of the Health and Safety Code with the
Probate Code.
SECTION 2. Amends Section 48.021(e) of the Human Resources
Code so that the references in that section to Probate Code
provisions that no longer exist will be replaced with the current
Probate code provisions.
SECTION 3. Amends Vernon's Ann. Civ. St. art. 6687b, Section
30, Chapter 173 regarding revocation of licenses to operate a motor
vehicle to replace the no longer existing term "incompetent" with
the term "incapacitated person". Specifically, the statute will
now require revocation of the license upon a finding of total
incapacity or incapacity to act as a driver of a motor vehicle
rather than when "incompetent". Furthermore, the bill amends the
reference to "chemical dependency" rather than addiction to alcohol
or controlled substance so as to conform with current chemical
dependency terminology.
SECTION 4. Deletes the definition of "incompetents" or
"Incompetent persons" from Section 3 of the Probate Code, and
substitutes in lieu thereof the definition of "Incapacitated" or
"Incapacitated person" as adopted in the 1993 guardianship
revisions, thereby conforming the probate provisions with the
guardianship provisions. Further, the definition of the term
"Ward" is added.
SECTION 5. Amends Section 37A of the Probate Code, regarding
disclaimers, to substitute the term incapacitated in lieu of
incompetent and to substitute the term guardian and guardian ad
litem for personal representative in order to clarify the identity
of a disclaimant.
SECTION 6. Amends Section 53(b) of the Probate Code, regarding
the appointment of an attorney ad litem, to conform the terms of
that section with the guardianship provisions and the concept of
incapacity.
SECTION 7. Amends Section 78 of the Probate Code, regarding
Persons Disqualified to Serve as Executor or Administrator, to
substitute the term "incapacitated person" for "incompetent" so as
to conform the terms of that section with the guardianship
provisions and the concept of incapacity.
SECTION 8. Amends Section 137 of the Probate Code, regarding
the Collection of Small Estates Upon Affidavit, to substitute the
phrase "the guardian of any other incapacitated person" for the
term of"incompetent" so as to conform the terms of that section
with the guardianship provisions and the concept of incapacity.
SECTION 9. Amends Section 145(i) of the Probate Code,
regarding the execution of the application for independent
administration by an incapacitated distributee, to conform the
terms of that section with the guardianship provisions and the
concept of incapacity.
SECTION 10. Amends Section 149C(a) of the Probate Code,
regarding Removal of Independent Executor, to substitute the term
"incapacitated person" for the term "incompetent" so as to conform
the terms of that section with the guardianship provisions and the
concept of incapacity.
SECTION 11. Amends Section 154A(b) of the Probate Code,
regarding the execution of the application for court appointed
successor independent executor, to substitute the term
"incapacitated person" for the term "incompetent" so as to conform
the terms of that section with the guardianship provisions and the
concept of incapacity.
SECTION 12. Amends Section 195 of the Probate Code, regarding
when bond is required, to delete references to guardianship matters
as a duplicate provision regarding guardianship bonds was enacted
during the 1993 guardianship revision.
SECTION 13. Amends Section 222(a) and (b) of the Probate Code,
regarding removal of personal representatives, to delete those
provisions of 222 (a) and (b) that make reference to guardianship
matters as these provisions were enacted in the 1993 guardianship
revisions.
SECTION 14. Adds a new Section 405A of the Probate Code to
restate provisions inadvertently omitted regarding the delivery of
property of a decedent's estate to a guardian of a ward.
SECTION 15. Amends Section 601 of the Probate Code, entitled
"Definitions" to include the definition of the term "court
investigator" to mean a person appointed by a Statutory Probate
Court under Section 25.0025, Government Code; and "guardian" to
mean a person appointed guardian under Section 693 of the Probate
Code and includes both guardians of the person and estate of
incapacitated persons. The definition of missing person is amended
to conform it to another guardianship provision that passed in the
1993 legislative session wherein persons missing as a result of
violent crime were added to the definition of missing persons.
SECTION 16. Amends Section 606(b) of the Probate Code,
regarding District Court and Other Court of Record Jurisdiction to
reflect the concept of mental "health" rather than mental
"illness."
SECTION 17. Amends Section 606(e) of the Probate Code, to
clarify that the court retains jurisdiction to hear matters when a
surety is called on to perform in place of a guardian or former
guardian, even if the ward has died, regained capacity or the
ward's disabilities of minority have been removed.
SECTION 18. Moves the guardianship notice provisions contained
in Section 111 of the Probate Code to Section 633 of the Probate
Code. In addition, Section 633 clarifies the notice and citation
provisions to remove a duplicative notice provision.
SECTION 19. Amends Section 636 of the Probate Code, regarding
Notices to the Veterans Administration by Guardians, to reflect the
proper name of the agency, the Department of Veterans Affairs.
Further, the burden of giving notice required by section 63b to the
Department of Veterans Affairs is placed upon the party filing the
pleading.
SECTION 20. Amends Section 642 of the Probate Code, regarding
Standing to Commence or Contest Proceedings, to add paragraph (c),
clarifying that the issue of standing to commence or contest
guardianships shall be determined by motion in limine.
SECTION 21. Amends Section 644 of the Probate Code, regarding
Hearings by Submission, to clarify and simplify the procedure for
such hearings. Under these amendments a court may consider a
motion without a formal courtroom hearing unless the proceeding is:
(1) contested; or is
(2) an application for the appointment of a guardian.
The burden of proof in hearings by submission is on the party
seeking relief, but the court may consider a person's failure to
file a response to a motion in determining the matter.
SECTION 22. Amends Section 646(b), (c) and (d) of the Probate
Code, regarding the requirements of being appointed Attorney Ad
Litem to allow an entity designated by the State Bar to conduct the
attorney ad litem educational programs that are required as a
result of the 1993 guardianship law revision. This section
clarifies the number of hours required for ad litem certification
so that the course of instruction required is not more than or less
than four (4) hours every two years. The grandfathering provisions
for persons who served as ad litem prior to September 1, 1993 are
deleted pursuant to section 75 of the bill, effective September 1,
1997.
SECTION 23. Amends Section 648 of the Probate Code, regarding
the Court Visitor Program, to provide that the Court Visitor
program shall not apply to guardianships that are created only
because it is necessary for a person to have a guardian appointed
to receive funds from a governmental source.
SECTION 24. Moves the Court Investigator duty provisions from
Section 25.0025, Government Code to new Section 648A of the Probate
Code in order to make it easier on attorneys and the public to know
the responsibilities of the Court Investigator in guardianship
matters. Amends these duties to make it clear that court
investigations are not to be made in temporary guardianships as
these proceedings are to be limited and fashioned in the least
restrictive manner according to the temporary guardianship
provision.
SECTION 25. Amends Section 659 of the Probate Code, regarding
Issuance of Letters of Guardianship, to clarify the form of the
letters of guardianship, and to require the date of expiration of
such letters to be contained in the letters.
SECTION 26. Amends Section 660 of the Probate Code, entitled
Letters or Certificate Made Evidence, to clarify that the authority
under the guardianship may be exercised only after letters are
issued.
SECTION 27. Amends Section 665 of the Probate Code, regarding
Compensation of Guardians to make it clear that this provision
includes Temporary Guardians in the statutory compensation scheme
created by the legislature. This clarifies the authority of the
court to award compensation to temporary guardians and the basis
for calculation of such compensation.
SECTION 28. Amends the Probate Code by consolidating the
various sections of the current guardianship law regarding
compensation for professional services of attorneys, mental health
professionals, interpreters into Section 665A, Payment for
Professional Services, and Section 665B, Compensation of Certain
Attorneys, and Section 665C, Compensation for Collection of Claims
and Recovery of Property, and deleting the references to these
other sections from other areas in the Probate Code respecting
guardianships.
SECTION 29. Reaffirms the current cost provisions under the
Texas Rules of Civil Procedure and Probate Code by amending Section
669 of the Probate Code, Costs Against Guardianship, to clearly
state that unsuccessful applicants for guardianships are taxed with
costs when the award of costs against the applicant if the court
investigator recommends against the appointment of a guardian.
SECTION 30. Moves Probate Code Section 123A, Annual
Determination Whether Guardianship Should be Continued, Modified,
or Terminated, to Section 672 of the Probate Code. This
incorporation results in coherence. Section 123A is thus deleted
from the Probate Code. Furthermore, Section 75 of this bill
provides that, effective September 1, 1996, all guardianships shall
be made to conform to the provisions of Section 672.
SECTION 31. Amends Section 680 of the Probate Code, Selection
of Guardian by Minor, to conform with a change made in the
guardianship law in the 1983 session that was not part of the
guardianship revision. This section will now provide that a minor
of at least 12 years of age may express a preference for the
appointment of guardian, and is a reduction from the former
provisions age of 14.
SECTION 32. Amends Section 681 of the Probate Code, Persons
Disqualified to Serve as Guardian by exchanging the term
disqualified to serve as Guardian for ineligible to be Guardian.
SECTION 33. Amends Section 684 of the Probate Code, Findings
Required, to clarify that the findings of the necessity for
guardianship and the protection of the proposed ward are to be made
by clear and convincing evidence while the findings for venue and
eligibility to serve as guardian are made by the preponderance of
the evidence. Further, this section requires the court when
determining that a guardianship should be established to make a
finding of whether there is partial or total incapacity.
SECTION 34. Amends Section 685(a) of the Probate Code,
regarding the Hearing for Appointment of Guardian, to allow a court
order to state that the personal appearance of the proposed ward is
not necessary in lieu of having such determination made in front of
a court reporter.
SECTION 35. Moves Probate Code Section 112A regarding
Examinations and Reports, to Probate Code Section 687. This
incorporation of the current provisions of Section 112A renders
Section 112A unnecessary and it is deleted from the Probate Code.
SECTION 36. Amends Section 690 of the Probate Code, Only One
Person Appointed Guardian, to provide that joint managing
conservators may be appointed joint guardians.
SECTION 37. Amends Section 691 of the Probate Code, Agency as
Last Resort, to reflect the transfer of the Adult Protective
Services Division from the Department of Human Services to the
Department of Protective and Regulatory Services. This continues
the ability of a Probate Court to appoint MHMR or DPRS as a
guardian when there is no other available guardian.
SECTION 38. Amends Section 692 of the Probate Code, by
transferring parts of this section to Section 693 and moving parts
of 693 to 692 so that like-minded provisions are in the same
section. This section, rather than Section 693, would now provide
for the dismissal of the guardianship application if the court
finds the individual can manage his or her property. It also
removes provisions regarding the form of the order appointing the
guardian to Section 693 of the Code.
SECTION 39. Amends Section 693 of the Probate Code, regarding
the Order of the Court, by consolidating provisions from Section
692 into this section and by transferring to Section 692 the
dismissal of the guardianship provisions.
SECTION 40. Amends Section 694 of the Probate Code, Term of
Appointment of Guardian, to clarify the term of appointment of the
guardian and transfers the provisions regarding restoration of
capacity to new Section 694A.
SECTION 41. Adds a Section 694A of the Probate Code,
Restoration of Ward, by transferring the restoration of capacity
provisions contained in Section 694.
SECTION 42. Amends Section 702 of the Probate Code, Bond of
Guardian of Person and Estate, to correct an error that only
allowed corporate fiduciaries to have bond waived when they were a
guardian of the person and to clarify that the bond the guardian of
the estate may not be waived by provisions of a will of a surviving
parent appointing a guardian. This section continues the ability of
the surviving parent of a minor to have bond of the person waived
by will.
SECTION 43. Amends Section 742(f), regarding Action on Annual
Accounts, to refer to letters of guardianship rather than letters
of administration.
SECTION 44. Amends Section 743(a), regarding Reports of the
Person, to use the term "annual report" rather than "annual
account" for the report to be filed by guardians of the person.
SECTION 45. Amends Section 743, Reports of Guardians of the
Person, to clarify that the time for filing the report is 60 days
after the anniversary date of the guardianship term and
reconfigures the information required in the report and the action
a court should take regarding the report filed by a guardian of the
person. This amendment adds provisions for the approval of the
report of the guardian of the person and waiver of costs of the
filing of such reports.
SECTION 46. Amends Section 744 of the Probate Code, Penalty
for Failure to File Accountings, Exhibits or Reports, to clarify
the penalties for failure to file.
SECTION 47. Amends Section 745(c) of the Probate Code, Closing
Guardianships of the Estate, to change the incorrect reference in
such section from Section 885, to Section 887.
SECTION 48. Amends Section 759(a) of the Probate Code,
Appointment of Successor Guardian, to allow the personal
representative of a deceased guardian to account for and pay over
the assets of a guardianship to a court-authorized successor
representative.
SECTION 49. Amends Section 760 of the Probate Code,
Resignation, to clarify that the court has the authority to order
the delivery of all or part of the guardianship assets to the
successor guardian immediately upon resignation of the guardian.
SECTION 50. Amends Section 761 of the Probate Code, Removal,
to add provisions to clarify the power of the court to order the
delivery of guardianship assets to the successor guardian
immediately upon removal of the guardian.
SECTION 51. Amends Section 772 of the Probate Code, Collection
of Claims and Recovery of Property, to remove the provisions
regarding contingency fee contracts, which provisions were moved to
new Section 665C.
SECTION 52. Amends Section 773 of the Probate Code, Suit by
Guardian, to clarify that only guardians of the estate may
institute suits on behalf of the ward.
SECTION 53. Amends Section 776(b) of the Probate Code, Sums
Allowable for Education and Maintenance of Ward, to make reference
to Section 777, regarding Sums Allowed Parents of Minors, to
clarify that the authority of the court to ratify expenditures for
education and maintenance of a wards includes those made on behalf
of minors.
SECTION 54. Amends Section 782 of the Probate Code, Power,
Duties, and Obligations of Guardian of Person entitled to
Government Funds, to replace the term "governmental agency" with
"governmental source."
SECTION 55. Amends Section 861 of the Probate Code, Opinion of
Attorney with Respect to Loans and Investments, removing the
requirement for an attorney's opinion regarding the propriety of
investments because the legislature has set standards for
investments in Sections 855 and 856. This section is further
amended by the deletion of the requirement of an attorney to
prepare an abstract of title since there has been the development
of title companies and tile insurance.
SECTION 56. Amends Section 862 of the Probate Code, Report of
Investment and Loans, by deleting the requirement of a
contemporaneous report by the guardian when investing funds of the
estate. The report of any loans as a result of an application by
the guardian would still have to be filed.
SECTION 57. Amends Section 867 of the Probate Code, Creation
of Management Trust, to clarify that the court with probate
jurisdiction retains jurisdiction over the management trust in the
same cause number as the original guardianship matter. This
amendment will allow a guardian to file applications for management
trusts with the same cause number as the underlying guardianship.
SECTION 58. Amends the distribution provisions of Section
868(b) of the Probate Code, Terms of Management Trust, to allow
distributions for health, education in addition to support and
maintenance of a ward or of a person the ward is legally obligated
to support.
SECTION 59. Amends Section 868(c), Terms of Management Trust,
of the Probate Code by adding a provision that the court may
authorize a grant of the power of a trustee under the Texas Trust
Code to a management trust under this section.
SECTION 60. This amendment provides that the court may appoint
a successor trustee if the trustee resigns, becomes ineligible or
is removed.
SECTION 61. Amends Section 870 of the Probate Code,
Termination of Trust, by deleting redundant language that restated
when a management trust was to be terminated in the case of an
adult incapacitated individual.
SECTION 62. Amends Section 872 of the Probate Code, Liability,
by clarifying that neither the guardian of the estate, nor the
guardian of the person is liable for the acts or omissions of the
trustee of the management trust.
SECTION 63. Amends Section 873 of the Probate Code,
Distribution of Trust Property, to provide for the preparation of
a final account by the trustee of a management trust, the
appropriate distributee, and the final discharge of the trustee by
the court.
SECTION 64. Amends Section 875 of the Probate Code, Temporary
Guardian -- Procedure, to clarify that the application for
temporary guardianship must be sworn, and amends other provisions
so that a court could create a temporary guardianship pending a
contest under appropriate circumstances.
SECTION 65. Amends Section 881 of the Probate Code,
Nonresident Guardian, by adding a provision allowing the court to
authorize the delivery of guardianship assets to a non resident
guardian. This provision was inadvertently dropped out of the
legislative draft during the 1993 guardianship revision.
SECTION 66. This amendment moves the provisions of Probate
Code Section 891, Nonresident Guardian's Removal of Ward's
Property From State, to new Section 881A.
SECTION 67. Adds new Section 883A to the Probate Code,
Recovery of Capacity, providing for recovery of capacity of an
incapacitated spouse in community property administrations to
conform with the concept of restoration of capacity that was placed
in guardianship law during the 1993 guardianship revision.
SECTION 68. Amends Section 889(a) of the Probate Code, Sale of
Property of a Minor by a Parent Without Guardianship, to authorize
the exercise of such powers by a managing conservator.
SECTION 69. Amends Section 889(f) of the Probate Code, Sale of
Property of a Minor by a Parent Without Guardianship, to correct
the reference therein from Section 885 to Section 887.
SECTION 70. Amends Section 19 of the Polygraph Examiners Act
to change references therein to drunkards and incompetents to the
term "incapacitated persons."
SECTION 71. Amends Section 5.08(j)(1), Medical Practice Act
(Article 4495b, Vernon's Texas Civil Statutes) to delete references
to incompetents and replace the term with "incapacitated persons"
and to update statutory references to appropriate current Code
references.
SECTION 72. Repeals the provisions of Government Code Section
25.0025(c), (d), and (e) regarding the duties of a court
investigator. These duties were placed in the Probate Code by
Section 24 of this bill.
SECTION 73. Repeals Section 3(n), 3(y), 110, 111, 112A, 118,
123A, 127A, 257, 159, 236, 236A, 688, and 688A and Supart G. Part
5, Chapter XIII of the Texas Probate Code as these provisions are
no longer necessary as a result of the amendments made by this
bill.
SECTION 74. Repeals Section 646(e) of the Texas Probate Code
which grandfathered attorneys from ad litem certification if they
had served as ad litem prior to September 1, 1993.
SECTION 75. Amends the annual determination of guardianship
provision contained in new Section 672 so that by September 1, 1996
the probate courts will have all existing guardianships reviewed to
determine the necessity of continued guardianship.
SECTION 76. Provides that the amendments under this bill will
become effective on September 1, 1995, except for the provisions
regarding education of persons serving as attorney ad litem, which
will become effective September 1, 1996 and that the annual
determination requirement will be effective September 1, 1996.
SECTION 77. Provides that the changes made regarding notices
to the Department of Veterans Affairs and the changes regarding
compensation of guardians apply only to application for appointment
of guardians on or after September 1, 1995.
SECTION 78. Provides that the changes made regarding bonds of
persons and estates shall only apply to a person appointed as a
guardian on or after September 1, 1995.
SECTION 79. Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The substitute bill clarifies notice and citation requirements
under Section 18 of the bill, Section 633 of the proposed new
provisions of the Probate Code, to ensure that parents of proposed
minor wards receive notice of guardianship applications.
The substitute bill clarifies Section 19 of the bill amending
Section 636 regarding notice to the Department of Veterans Affairs
and the timing of the required notice. Prior bill language was
determined to be unclear and alternative language submitted.
In Section 24, the requirement that the Court Investigator has
to investigate before the appointment of the attorney ad litem is
deleted. In Section 24 (c) (2), the" 6th day" is changed to the
"10th day".
The substitute bill clarifies unclear language of Section 25
of the bill amending Section 659 regarding the effective period of
letters of guardianship.
In Section 26, Sec. 660, the new bill restores the deleted
language in the original bill.
The substitute bill clarifies Section 35 of the bill adding
new Section 687, to ensure that the physician's certificate in a
guardianship action is based upon a timely examination. Language
of the bill was found to be confusing and alternative language
submitted.
The substitute bill amends Section 25 of the bill adding
Section 648A which sets forth the duties of the court investigator
by stating that the court investigator is the Chief Court visitor.
The substitute bill amends Section 28 of the bill,
consolidating code provisions regarding fees to professionals, to
clarify that attorneys fees are allowable to an applicant for
guardianship provided the applicant acted in good faith and with
just causes. Prior bill language looked to the good faith of the
attorney, rather that the applicant.
Section 43 is deleted in the new bill, and the subsequent
sections are renumbered accordingly.
Throughout Section 46, the substitute bill deletes references
to a penalty for delinquent filing as it appears in Section 47 of
the original bill.
The substitute bill adds a new Section 61, which adds new
Section 869A, authorizing the court to appoint a successor trustee
for a court created management trust.
The substitute bill clarifies Section 873 of the Probate Code
regarding distribution of the trust assets upon termination.
SUMMARY OF COMMITTEE ACTION
House Bill 2029 was considered by the Committee on Civil Practices
in a public hearing on March 29, 1995. The following individuals
testified in support of the bill: Guy Herman, judge, Probate Court
#1 (Travis County), representing himself; Alvin J. Golden,
representing the Texas Academy of Probate and Trust Lawyers; and
Barret Markland, representing Advocacy, Inc. No one testified in
opposition to or neutrally on the bill. The chair referred the bill
to a subcommittee consisting of Representatives Hartnett (chair),
Tillery and Zbranek. After being recalled from subcommittee H.B.
2029 was considered by the committee in a public hearing on May 3,
1995. The committee considered a complete substitute for the bill.
The substitute was adopted without objection. H.B. 2029 was
reported favorably, as substituted with the recommendation that it
be pass, be printed and be sent to the Committee on Local and
Consent Calendars, by a record vote of eight ayes, zero nays, zero
pnv and one absent.