1-1 By: Naishtat (Senate Sponsor - Henderson) H.B. No. 2029
1-2 (In the Senate - Received from the House May 15, 1995;
1-3 May 17, 1995, read first time and referred to Committee on
1-4 Jurisprudence; May 24, 1995, reported favorably by the following
1-5 vote: Yeas 7, Nays 0; May 24, 1995, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to guardianships and incapacitated persons.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 SECTION 1. Section 594.036(b), Health and Safety Code, is
1-11 amended to read as follows:
1-12 (b) Notice shall also be served on the parents if the
1-13 resident is a minor and on the guardian for the resident's person
1-14 if the resident has been declared to be incapacitated <incompetent>
1-15 as provided by the Texas Probate Code and a guardian has been
1-16 appointed.
1-17 SECTION 2. Section 48.021(e), Human Resources Code, is
1-18 amended to read as follows:
1-19 (e) The department shall file an application under Section
1-20 682 <110A> or 875 <131(b)> of the Texas Probate Code to be
1-21 appointed guardian of the person and estate of an individual who is
1-22 a minor, is a conservatee of the department, and, because of a
1-23 physical or mental condition, will be substantially unable to
1-24 provide food, clothing, or shelter for himself or herself, to care
1-25 for the individual's own physical health, or to manage the
1-26 individual's own financial affairs when the individual becomes an
1-27 adult.
1-28 SECTION 3. Section 30, Chapter 173, Acts of the 47th
1-29 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
1-30 Civil Statutes), is amended to read as follows:
1-31 Sec. 30. Revocation of License for Medical Reasons. It
1-32 shall be unlawful for any person to act as a driver of a motor
1-33 vehicle who is chemically dependent <addicted to the use of alcohol
1-34 or a controlled substance>, or who has been adjudged totally
1-35 incapacitated or incapacitated to act as a driver of a motor
1-36 vehicle <mentally incompetent> and has not been restored to
1-37 capacity <competency> by judicial decree or released from a
1-38 hospital for the mentally incapacitated <incompetent> upon a
1-39 certificate of the superintendent that such person has regained
1-40 capacity <is competent>. A finding that a person is chemically
1-41 dependent <addicted to the use of alcohol or a controlled
1-42 substance> must be based on a determination by the court that the
1-43 person is psychologically or physiologically dependent on alcohol
1-44 or a controlled substance. Any finding by any court of competent
1-45 jurisdiction that any person holding a driver's license is totally
1-46 incapacitated or incapacitated to act as a driver of a motor
1-47 vehicle <mentally incompetent> or chemically dependent <addicted to
1-48 the use of alcohol or a controlled substance> shall carry with it a
1-49 revocation of the driver's license. It shall be the duty of the
1-50 clerk of any court in which such findings are made, to certify same
1-51 to the Department within ten (10) days.
1-52 SECTION 4. Section 3, Texas Probate Code, is amended by
1-53 amending Subsection (p) and adding Subsection (mm) to read as
1-54 follows:
1-55 (p) "Incapacitated" or "Incapacitated person" means:
1-56 (1) a minor;
1-57 (2) an adult individual who, because of a
1-58 physical or mental condition, is substantially unable to provide
1-59 food, clothing, or shelter for himself or herself, to care for the
1-60 individual's own physical health, or to manage the individual's own
1-61 financial affairs;
1-62 (3) a missing person; or
1-63 (4) a person who must have a guardian appointed
1-64 to receive funds due the person from any governmental source
1-65 <"Incompetents" or "Incompetent persons" are persons non compos
1-66 mentis, mentally disabled persons, insane persons, common or
1-67 habitual drunkards, and other persons who are mentally incompetent
1-68 to care for themselves or to manage their property and financial
2-1 affairs>.
2-2 (mm) "Ward" is a person for whom a guardian has been
2-3 appointed.
2-4 SECTION 5. Section 37A, Texas Probate Code, is amended to
2-5 read as follows:
2-6 Sec. 37A. Means of Evidencing Disclaimer or Renunciation of
2-7 Property or Interest Receivable From a Decedent. Any person, or
2-8 the guardian <personal representative> of an incapacitated person
2-9 <incompetent>, the personal representative of a deceased person, or
2-10 the guardian ad litem of an unborn or unascertained<, or minor>
2-11 person, with prior court approval of the court having, or which
2-12 would have, jurisdiction over such guardian, personal
2-13 representative, or guardian ad litem, or any independent executor
2-14 of a deceased person, without prior court approval, who may be
2-15 entitled to receive any property as a beneficiary and who intends
2-16 to effect disclaimer irrevocably on or after September 1, 1977, of
2-17 the whole or any part of such property shall evidence same as
2-18 herein provided. A disclaimer evidenced as provided herein shall
2-19 be effective as of the death of decedent and shall relate back for
2-20 all purposes to the death of the decedent and is not subject to the
2-21 claims of any creditor of the disclaimant. Unless the decedent's
2-22 will provides otherwise, the property subject to the disclaimer
2-23 shall pass as if the person disclaiming or on whose behalf a
2-24 disclaimer is made had predeceased the decedent and a future
2-25 interest that would otherwise take effect in possession or
2-26 enjoyment after the termination of the estate or interest that is
2-27 disclaimed takes effect as if the disclaiming beneficiary had
2-28 predeceased the decedent. Failure to comply with the provisions
2-29 hereof shall render such disclaimer ineffective except as an
2-30 assignment of such property to those who would have received same
2-31 had the person attempting the disclaimer died prior to the
2-32 decedent. The term "property" as used in this section shall
2-33 include all legal and equitable interests, powers, and property,
2-34 whether present or future, whether vested or contingent, and
2-35 whether beneficial or burdensome, in whole or in part. The term
2-36 "disclaimer" as used in this section shall include "renunciation."
2-37 In this section "beneficiary" includes a person who would have been
2-38 entitled, if the person had not made a disclaimer, to receive
2-39 property as a result of the death of another person by inheritance,
2-40 under a will, by an agreement between spouses for community
2-41 property with a right of survivorship, by a joint tenancy with a
2-42 right of survivorship, or by any other survivorship agreement,
2-43 account, or interest in which the interest of the decedent passes
2-44 to a surviving beneficiary, by an insurance, annuity, endowment,
2-45 employment, deferred compensation, or other contract or
2-46 arrangement, or under a pension, profit sharing, thrift, stock
2-47 bonus, life insurance, survivor income, incentive, or other plan or
2-48 program providing retirement, welfare, or fringe benefits with
2-49 respect to an employee or a self-employed individual. Nothing in
2-50 this section shall be construed to preclude a subsequent disclaimer
2-51 by any person who shall be entitled to property as a result of a
2-52 disclaimer. The following shall apply to such disclaimers:
2-53 (a) Written Memorandum of Disclaimer and Filing
2-54 Thereof. In the case of property receivable by a beneficiary, the
2-55 disclaimer shall be evidenced by a written memorandum, acknowledged
2-56 before a notary public or other person authorized to take
2-57 acknowledgements of conveyances of real estate. Unless the
2-58 beneficiary is a charitable organization or governmental agency of
2-59 the state, a written memorandum of disclaimer disclaiming a present
2-60 interest shall be filed not later than nine months after the death
2-61 of the decedent and a written memorandum of disclaimer disclaiming
2-62 a future interest may be filed not later than nine months after the
2-63 event determining that the taker of the property or interest is
2-64 finally ascertained and his interest is indefeasibly vested. If
2-65 the beneficiary is a charitable organization or a governmental
2-66 agency of the state, a written memorandum of disclaimer disclaiming
2-67 a present or future interest shall be filed not later than nine
2-68 months after the beneficiary receives the notice required by
2-69 Section 128A of this code. The written memorandum of disclaimer
2-70 shall be filed in the probate court in which the decedent's will
3-1 has been probated or in which proceedings have been commenced for
3-2 the administration of the decedent's estate or which has before it
3-3 an application for either of the same; provided, however, if the
3-4 administration of the decedent's estate is closed, or after the
3-5 expiration of one year following the date of the issuance of
3-6 letters testamentary in an independent administration, or if there
3-7 has been no will of the decedent probated or filed for probate, or
3-8 if no administration of the decedent's estate has been commenced,
3-9 or if no application for administration of the decedent's estate
3-10 has been filed, the written memorandum of disclaimer shall be filed
3-11 with the county clerk of the county of the decedent's residence,
3-12 or, if the decedent is not a resident of this state but real
3-13 property or an interest therein located in this state is
3-14 disclaimed, a written memorandum of disclaimer shall be filed with
3-15 the county clerk of the county in which such real property or
3-16 interest therein is located, and recorded by such county clerk in
3-17 the deed records of that county.
3-18 (b) Notice of Disclaimer. Unless the beneficiary is a
3-19 charitable organization or governmental agency of the state, copies
3-20 of any written memorandum of disclaimer shall be delivered in
3-21 person to, or shall be mailed by registered or certified mail to
3-22 and received by, the legal representative of the transferor of the
3-23 interest or the holder of legal title to the property to which the
3-24 disclaimer relates not later than nine months after the death of
3-25 the decedent or, if the interest is a future interest, not later
3-26 than nine months after the date the person who will receive the
3-27 property or interest is finally ascertained and the person's
3-28 interest is indefeasibly vested. If the beneficiary is a
3-29 charitable organization or government agency of the state, the
3-30 notices required by this section shall be filed not later than nine
3-31 months after the beneficiary receives the notice required by
3-32 Section 128A of this code.
3-33 (c) Power to Provide for Disclaimer. Nothing herein
3-34 shall prevent a person from providing in a will, insurance policy,
3-35 employee benefit agreement, or other instrument for the making of
3-36 disclaimers by a beneficiary of an interest receivable under that
3-37 instrument and for the disposition of disclaimed property in a
3-38 manner different from the provisions hereof.
3-39 (d) Irrevocability of Disclaimer. Any disclaimer
3-40 filed and served under this section shall be irrevocable.
3-41 (e) Partial Disclaimer. Any person who may be
3-42 entitled to receive any property as a beneficiary may disclaim such
3-43 property in whole or in part, including but not limited to specific
3-44 powers of invasion, powers of appointment, and fee estate in favor
3-45 of life estates; and a partial disclaimer or renunciation, in
3-46 accordance with the provisions of this section, shall be effective
3-47 whether the property so renounced or disclaimed constitutes a
3-48 portion of a single, aggregate gift or constitutes part or all of a
3-49 separate, independent gift; provided, however, that a partial
3-50 disclaimer shall be effective only with respect to property
3-51 expressly described or referred to by category in such disclaimer;
3-52 and provided further, that a partial disclaimer of property which
3-53 is subject to a burdensome interest created by the decedent's will
3-54 shall not be effective unless such property constitutes a gift
3-55 which is separate and distinct from undisclaimed gifts.
3-56 (f) Partial Disclaimer by Spouse. Without limiting
3-57 Subsection (e) of this section, a disclaimer by the decedent's
3-58 surviving spouse of a transfer by the decedent is not a disclaimer
3-59 by the surviving spouse of all or any part of any other transfer
3-60 from the decedent to or for the benefit of the surviving spouse,
3-61 regardless of whether the property or interest that would have
3-62 passed under the disclaimed transfer passes because of the
3-63 disclaimer to or for the benefit of the surviving spouse by the
3-64 other transfer.
3-65 (g) Disclaimer After Acceptance. No disclaimer shall
3-66 be effective after the acceptance of the property by the
3-67 beneficiary. For the purpose of this section, acceptance shall
3-68 occur only if the person making such disclaimer has previously
3-69 taken possession or exercised dominion and control of such property
3-70 in the capacity of beneficiary.
4-1 (h) Interest in Trust Property. A beneficiary who
4-2 accepts an interest in a trust is not considered to have a direct
4-3 or indirect interest in trust property that relates to a licensed
4-4 or permitted business and over which the beneficiary exercises no
4-5 control. Direct or indirect beneficial ownership of not more than
4-6 five percent of any class of equity securities that is registered
4-7 under the Securities Exchange Act of 1934 shall not be deemed to be
4-8 an ownership interest in the business of the issuer of such
4-9 securities within the meaning of any statute, pursuant thereto.
4-10 SECTION 6. Section 53(b), Texas Probate Code, is amended to
4-11 read as follows:
4-12 (b) If it appears to the court that there are or may be
4-13 living heirs whose names or whereabouts are unknown, or that any
4-14 defendant is <a minor or> an incapacitated person <incompetent>,
4-15 the court may, in its discretion, appoint an attorney ad litem or
4-16 guardian ad litem to represent the interests of any such persons.
4-17 The court may not appoint an attorney ad litem or guardian ad litem
4-18 unless<, but no attorney shall be appointed except when> the court
4-19 finds that the <such> appointment is necessary to protect the
4-20 interests of the living heir or incapacitated person <persons for
4-21 whom the attorney is appointed>.
4-22 SECTION 7. Section 78, Texas Probate Code, is amended to
4-23 read as follows:
4-24 Sec. 78. Persons Disqualified to Serve as Executor or
4-25 Administrator. No person is qualified to serve as an executor or
4-26 administrator who is:
4-27 (a) <A minor; or>
4-28 <(b)> An incapacitated person <incompetent>; <or>
4-29 (b) <(c)> A convicted felon, under the laws either of
4-30 the United States or of any state or territory of the United
4-31 States, or of the District of Columbia, unless such person has been
4-32 duly pardoned, or his civil rights restored, in accordance with
4-33 law; <or>
4-34 (c) <(d)> A non-resident (natural person or
4-35 corporation) of this State who has not appointed a resident agent
4-36 to accept service of process in all actions or proceedings with
4-37 respect to the estate, and caused such appointment to be filed with
4-38 the court; <or>
4-39 (d) <(e)> A corporation not authorized to act as a
4-40 fiduciary in this State; or
4-41 (e) <(f)> A person whom the court finds unsuitable.
4-42 SECTION 8. Section 137(a), Texas Probate Code, is amended to
4-43 read as follows:
4-44 (a) The distributees of an estate shall be entitled thereto,
4-45 to the extent that the assets, exclusive of homestead and exempt
4-46 property, exceed the known liabilities of said estate, without
4-47 awaiting the appointment of a personal representative when:
4-48 (1) No petition for the appointment of a personal
4-49 representative is pending or has been granted; and
4-50 (2) Thirty days have elapsed since the death of the
4-51 decedent; and
4-52 (3) The value of the entire assets of the estate, not
4-53 including homestead and exempt property, does not exceed $50,000;
4-54 and
4-55 (4) There is filed with the clerk of the court having
4-56 jurisdiction and venue an affidavit sworn to by two disinterested
4-57 witnesses and by such distributees as have legal capacity, and, if
4-58 the facts warrant, by the natural guardian or next of kin of any
4-59 minor or the guardian of any other incapacitated person
4-60 <incompetent> who is also a distributee, which affidavit shall be
4-61 examined by the judge of the court having jurisdiction and venue;
4-62 the judge may find, in his discretion, that the affidavit conforms
4-63 to the terms of this section; if the judge approves the affidavit,
4-64 the affidavit is to be recorded as an official public record under
4-65 Chapter 194, Local Government Code, or if the county has not
4-66 adopted a microfilm or microphotographic process under Chapter 194,
4-67 Local Government Code, the affidavit must be recorded in "Small
4-68 Estates" records by the clerk, showing the existence of the
4-69 foregoing conditions, including a list of the assets and
4-70 liabilities of the estate, the names and addresses of the
5-1 distributees, and their right to receive the money or property of
5-2 the estate, or to have such evidences of money, property or other
5-3 rights of the estate as found to exist transferred to them, being
5-4 heirs, devisees, or assignees, and listing all assets and known
5-5 liabilities of the estates; and
5-6 (5) A copy of such affidavit, certified to by said
5-7 clerk, is furnished by the distributees of the estate to the person
5-8 or persons owing money to the estate, having custody or possession
5-9 of property of the estate, or acting as registrar, fiduciary or
5-10 transfer agent of or for evidences of interest, indebtedness,
5-11 property or other right belonging to said estate.
5-12 SECTION 9. Section 145(i), Texas Probate Code, is amended to
5-13 read as follows:
5-14 (i) If a distributee described in Subsections (c) through
5-15 (e) of this section is <a minor or> an incapacitated person
5-16 <incompetent>, the guardian of the person of the distributee may
5-17 sign the application on behalf of the distributee. If the county
5-18 court finds that either the granting of independent administration
5-19 or the appointment of the person, firm, or corporation designated
5-20 in the application as independent executor would not be in the best
5-21 interests of the incapacitated person <minor or incompetent>, then,
5-22 notwithstanding anything to the contrary in Subsections (c) through
5-23 (e) of this section, the county court shall not enter an order
5-24 granting independent administration of the estate. If such
5-25 distributee who is an incapacitated person <a minor or incompetent>
5-26 has no guardian of the person, the county court may appoint a
5-27 guardian ad litem to make application on behalf of the
5-28 incapacitated person <minor or incompetent> if the county court
5-29 considers such an appointment necessary to protect the interest of
5-30 the distributees.
5-31 SECTION 10. Section 149C(a), Texas Probate Code, is amended
5-32 to read as follows:
5-33 (a) The county court, a statutory probate court, a county
5-34 court at law with probate jurisdiction, or a district court of the
5-35 county, on its own motion or on motion of any interested person,
5-36 after the independent executor has been cited by personal service
5-37 to answer at a time and place fixed in the notice, may remove an
5-38 independent executor when:
5-39 (1) the independent executor fails to return within
5-40 ninety days after qualification, unless such time is extended by
5-41 order of the court, an inventory of the property of the estate and
5-42 list of claims that have come to his knowledge;
5-43 (2) sufficient grounds appear to support belief that
5-44 he has misapplied or embezzled, or that he is about to misapply or
5-45 embezzle, all or any part of the property committed to his care;
5-46 (3) he fails to make an accounting which is required
5-47 by law to be made;
5-48 (4) he fails to timely file the notice required by
5-49 Section 128A of this code;
5-50 (5) he is proved to have been guilty of gross
5-51 misconduct or gross mismanagement in the performance of his duties;
5-52 or
5-53 (6) he becomes an incapacitated person <incompetent>,
5-54 or is sentenced to the penitentiary, or from any other cause
5-55 becomes legally incapacitated from properly performing his
5-56 fiduciary duties.
5-57 SECTION 11. Section 154A(b), Texas Probate Code, is amended
5-58 to read as follows:
5-59 (b) If a distributee described in this section is <a minor
5-60 or> an incapacitated person <incompetent>, the guardian of the
5-61 person of the distributee may sign the application on behalf of the
5-62 distributee. If the county court finds that either the continuing
5-63 of independent administration or the appointment of the person,
5-64 firm, or corporation designated in the application as successor
5-65 independent executor would not be in the best interest of the
5-66 incapacitated person <minor or incompetent>, then, notwithstanding
5-67 anything to the contrary in Subsection (a) of this section, the
5-68 county court shall not enter an order continuing independent
5-69 administration of the estate. If the distributee <who> is an
5-70 incapacitated person and <a minor or incompetent> has no guardian
6-1 of the person, the court may appoint a guardian ad litem to make
6-2 application on behalf of the incapacitated person <minor or
6-3 incompetent> if the county court considers such an appointment
6-4 necessary to protect the interest of such distributee.
6-5 SECTION 12. Section 195(a), Texas Probate Code, is amended
6-6 to read as follows:
6-7 (a) By Will. Whenever any will probated in a Texas court
6-8 directs that no bond or security be required of the person or
6-9 persons named as executors, <or when such a will is made by a
6-10 surviving parent and directs that the guardian or guardians therein
6-11 appointed serve without bond,> the court finding that such person
6-12 or persons are qualified, letters testamentary <or of guardianship,
6-13 as is proper,> shall be issued to the persons so named, without
6-14 requirement of bond.
6-15 SECTION 13. Sections 222(a) and (b), Texas Probate Code, are
6-16 amended to read as follows:
6-17 (a) Without Notice. (1) The court, on its own motion or on
6-18 motion of any interested person, and without notice, may remove any
6-19 personal representative, appointed under provisions of this Code,
6-20 who:
6-21 (A) Neglects to qualify in the manner and time
6-22 required by law;
6-23 (B) Fails to return within ninety days after
6-24 qualification, unless such time is extended by order of the court,
6-25 an inventory of the property of the estate and list of claims that
6-26 have come to his knowledge;
6-27 (C) Having been required to give a new bond,
6-28 fails to do so within the time prescribed;
6-29 (D) Absents himself from the State for a period
6-30 of three months at one time without permission of the court, or
6-31 removes from the State;
6-32 (E) Cannot be served with notices or other
6-33 processes by reason of the fact that his whereabouts are unknown,
6-34 or by reason of the fact that he is eluding service; or
6-35 (F) Has misapplied, embezzled, or removed from
6-36 the State, or is about to misapply, embezzle, or remove from the
6-37 State, all or any part of the property committed to the personal
6-38 representative's <guardian's> care<; or>
6-39 <(G) Has cruelly treated a ward or has neglected
6-40 to educate or maintain the ward as liberally as the means of the
6-41 ward and the condition of the ward's estate permit>.
6-42 (2) The court may remove a personal representative
6-43 under Paragraph (F) <or (G)>, Subdivision (1), of this subsection
6-44 only on the presentation of clear and convincing evidence given
6-45 under oath.
6-46 (b) With Notice. The court may remove a personal
6-47 representative on its own motion, or on the complaint of any
6-48 interested person, after the personal representative has been cited
6-49 by personal service to answer at a time and place fixed in the
6-50 notice, when:
6-51 (1) Sufficient grounds appear to support belief that
6-52 he has misapplied, embezzled, or removed from the state, or that he
6-53 is about to misapply, embezzle, or remove from the state, all or
6-54 any part of the property committed to his care;
6-55 (2) He fails to return any account which is required
6-56 by law to be made;
6-57 (3) He fails to obey any proper order of the court
6-58 having jurisdiction with respect to the performance of his duties;
6-59 (4) He is proved to have been guilty of gross
6-60 misconduct, or mismanagement in the performance of his duties;
6-61 (5) He becomes an incapacitated person <incompetent>,
6-62 or is sentenced to the penitentiary, or from any other cause
6-63 becomes incapable of properly performing the duties of his trust;
6-64 (6) As executor or administrator, he fails to make a
6-65 final settlement within three years after the grant of letters,
6-66 unless the time be extended by the court upon a showing of
6-67 sufficient cause supported by oath; or
6-68 (7) As executor or administrator, he fails to timely
6-69 file the notice required by Section 128A of this code<; or>
6-70 <(9) He fails to comply with the requirements of
7-1 Section 126 of this code>.
7-2 SECTION 14. Part 12, Chapter VIII, Texas Probate Code, is
7-3 amended by adding Section 405A to read as follows:
7-4 Sec. 405A. DELIVERY OF PROPERTY. The court may permit a
7-5 resident executor or administrator who has any of the estate of a
7-6 ward to deliver the estate to a duly qualified and acting guardian
7-7 of the ward.
7-8 SECTION 15. Section 601, Texas Probate Code, is amended to
7-9 read as follows:
7-10 Sec. 601. DEFINITIONS. In this chapter:
7-11 (1) "Attorney ad litem" means an attorney who is
7-12 appointed by a court to represent and advocate on behalf of a
7-13 proposed ward, an incapacitated person, or an unborn person in a
7-14 guardianship proceeding.
7-15 (2) "Authorized corporate surety" means a domestic or
7-16 foreign corporation authorized to do business in this state to
7-17 issue surety, guaranty, or indemnity bonds guaranteeing the
7-18 fidelity of guardians.
7-19 (3) "Child" includes a biological or adopted child,
7-20 whether adopted by a parent under a statutory procedure or by acts
7-21 of estoppel.
7-22 (4) "Claims" includes a liability against the estate
7-23 of a minor or an incapacitated person and debts due to the estate
7-24 of a minor or an incapacitated person.
7-25 (5) "Corporate fiduciary" means a trust company or
7-26 bank having trust powers, existing or doing business under the laws
7-27 of this state or of the United States, that is authorized by law to
7-28 act under the order or appointment of any court of record, without
7-29 giving bond, as a guardian, receiver, trustee, executor, or
7-30 administrator, or, although without general depository powers, as a
7-31 depository for any money paid into court, or to become sole
7-32 guarantor or surety in or on any bond required to be given under
7-33 the laws of this state.
7-34 (6) "Court investigator" means a person appointed by a
7-35 statutory probate court under Section 25.0025, Government Code.
7-36 (7) "Court" or "probate court" means a county court in
7-37 the exercise of its probate jurisdiction, a court created by
7-38 statute and authorized to exercise original probate jurisdiction,
7-39 or a district court exercising original probate jurisdiction in
7-40 contested matters.
7-41 (8) <(7)> "Estate" or "guardianship estate" means the
7-42 real and personal property of a ward or deceased ward, both as the
7-43 property originally existed and as has from time to time changed in
7-44 form by sale, reinvestment, or otherwise, and as augmented by any
7-45 accretions and additions to (including any property to be
7-46 distributed to the representative of the deceased ward by the
7-47 trustee of a trust that terminates on the ward's death) or
7-48 substitutions for the property, and as diminished by any decreases
7-49 to or distributions from the property.
7-50 (9) <(8)> "Exempt property" refers to that property of
7-51 a deceased ward's estate that is exempt from execution or forced
7-52 sale by the constitution or laws of this state, and to the
7-53 allowance in lieu of the property.
7-54 (10) "Guardian" means a person who is appointed
7-55 guardian under Section 693 of this code, or a temporary or
7-56 successor guardian. Except as expressly provided otherwise,
7-57 "guardian" includes the guardian of the estate and the guardian of
7-58 the person of an incapacitated person.
7-59 (11) <(9)> "Guardian ad litem" means a person who is
7-60 appointed by a court to represent the best interests of an
7-61 incapacitated person in a guardianship proceeding.
7-62 (12) <(10)> "Guardianship program" means a local,
7-63 county, or regional program that provides guardianship and related
7-64 services to an incapacitated person or other person who needs
7-65 assistance in making decisions concerning the person's own welfare
7-66 or financial affairs.
7-67 (13) <(11)> "Incapacitated person" means:
7-68 (A) a minor;
7-69 (B) an adult individual who, because of a
7-70 physical or mental condition, is substantially unable to provide
8-1 food, clothing, or shelter for himself or herself, to care for the
8-2 individual's own physical health, or to manage the individual's own
8-3 financial affairs;
8-4 (C) a missing person; or
8-5 (D) a person who must have a guardian appointed
8-6 to receive funds due the person from any governmental source.
8-7 (14) <(12)> "Interested persons" or "persons
8-8 interested" means an heir, devisee, spouse, creditor, or any other
8-9 person having a property right in, or claim against, the estate
8-10 being administered or a person interested in the welfare of an
8-11 incapacitated person, including a minor.
8-12 (15) <(13)> "Minor" means a person who is younger than
8-13 18 years of age and who has never been married or who has not had
8-14 the person's disabilities of minority removed for general purposes.
8-15 (16) <(14)> "Minutes" means the guardianship minutes.
8-16 (17) <(15)> "Missing person" means:
8-17 (A) a person reported by an executive department
8-18 of the United States to be a prisoner of war or missing in the
8-19 course of public service to the United States; or
8-20 (B) a person reported missing and there is good
8-21 cause, as shown by a police or other law enforcement agency report
8-22 or a peace officer's testimony in court, to believe that the person
8-23 is missing.
8-24 (18) <(16)> "Mortgage" or "lien" includes a deed of
8-25 trust; vendor's lien; chattel mortgage; mechanic's, materialman's,
8-26 or laborer's lien; judgment, attachment, or garnishment lien;
8-27 pledge by hypothecation; and a federal or state tax lien.
8-28 (19) <(17)> "Next of kin" includes an adopted child,
8-29 the descendants of an adopted child, and the adoptive parent of an
8-30 adopted child.
8-31 (20) <(18)> "Parent" means the mother of a child, a
8-32 man presumed to be the biological father of a child, a man who has
8-33 been adjudicated to be the biological father of a child by a court
8-34 of competent jurisdiction, or an adoptive mother or father of a
8-35 child, but does not include a parent as to whom the parent-child
8-36 relationship has been terminated.
8-37 (21) <(19)> "Person" includes natural persons,
8-38 corporations, and guardianship programs.
8-39 (22) <(20)> "Personal property" includes an interest
8-40 in goods, money, choses in action, evidence of debts, and chattels
8-41 real.
8-42 (23) <(21)> "Personal representative" or
8-43 "representative" includes a guardian, and a successor guardian.
8-44 (24) <(22)> "Private professional guardian" means a
8-45 person, other than an attorney or a corporate fiduciary, who is
8-46 engaged in the business of providing guardianship services.
8-47 (25) <(23)> "Proceedings in guardianship,"
8-48 "guardianship matter," "guardianship matters," "guardianship
8-49 proceeding," and "proceedings for guardianship" are synonymous and
8-50 include a matter or proceeding relating to a guardianship or any
8-51 other matter addressed by this chapter.
8-52 (26) <(24)> "Property" includes both real and personal
8-53 property.
8-54 (27) <(25)> "Proposed ward" means a person alleged to
8-55 be incapacitated in a guardianship proceeding.
8-56 (28) <(26)> "Real property" includes estates and
8-57 interests in lands, corporeal or incorporeal, legal or equitable,
8-58 other than chattels real.
8-59 (29) <(27)> "Statutory probate court" means a
8-60 statutory court whose jurisdiction is limited by statute to the
8-61 general jurisdiction of a probate court and a court whose
8-62 statutorily designated name contains the word "probate." County
8-63 courts at law exercising probate jurisdiction are not statutory
8-64 probate courts under this chapter unless the statutorily designated
8-65 name of the county courts at law includes the word "probate."
8-66 (30) <(28)> "Surety" includes a personal and a
8-67 corporate surety.
8-68 (31) <(29)> "Ward" is a person for whom a guardian has
8-69 been appointed.
8-70 (32) <(30)> The singular number includes the plural;
9-1 the plural number includes the singular.
9-2 (33) <(31)> The masculine gender includes the feminine
9-3 and neuter.
9-4 SECTION 16. Section 606(b), Texas Probate Code, is amended
9-5 to read as follows:
9-6 (b) In those counties in which there is no statutory probate
9-7 court, county court at law, or other statutory court exercising the
9-8 jurisdiction of a probate court, all applications, petitions and
9-9 motions regarding guardianships, mental health <illness> matters,
9-10 and other matters covered by this chapter shall be filed and heard
9-11 in the county court, except that in contested guardianship matters,
9-12 the judge of the county court may on the judge's own motion, or
9-13 shall on the motion of any party to the proceeding, according to
9-14 the motion, request as provided by Section 25.0022, Government
9-15 Code, <and its subsequent amendments> the assignment of a statutory
9-16 probate judge to hear the contested portion of the proceeding, or
9-17 transfer the contested portion of the proceeding to the district
9-18 court, which may hear the transferred contested matters as if
9-19 originally filed in the district court. The county court continues
9-20 to exercise jurisdiction over the management of the guardianship
9-21 with the exception of the contested matter until final disposition
9-22 of the contested matter is made by the assigned judge or the
9-23 district court. In contested matters transferred to the district
9-24 court as provided by this subsection, the district court,
9-25 concurrently with the county court, has the general jurisdiction of
9-26 a probate court. On resolution of all pending contested matters,
9-27 the district court shall transfer the contested portion of the
9-28 guardianship proceeding to the county court for further proceedings
9-29 not inconsistent with the orders of the district court. If a
9-30 contested portion of the proceeding is transferred to a district
9-31 court under this subsection, the clerk of the district court may
9-32 perform in relation to the transferred portion of the proceeding
9-33 any function a county clerk may perform in that type of contested
9-34 proceeding.
9-35 SECTION 17. Section 606(e), Texas Probate Code, is amended
9-36 to read as follows:
9-37 (e) A court that exercises original probate jurisdiction has
9-38 the power to hear all matters incident to an estate. When a surety
9-39 is called on to perform in place of a guardian or former guardian,
9-40 a court exercising original probate jurisdiction may award judgment
9-41 against the guardian or former guardian in favor of the
9-42 <guardian's> surety of the guardian or former guardian in the same
9-43 suit, even if the ward has died, regained capacity, or the ward's
9-44 disabilities of minority have been removed.
9-45 SECTION 18. Subpart D, Part 2, Chapter XIII, Texas Probate
9-46 Code, is amended by adding Section 633 to read as follows:
9-47 Sec. 633. NOTICE AND CITATION. (a) On the filing of an
9-48 application for guardianship, notice shall be issued and served as
9-49 provided by this section.
9-50 (b) The court clerk shall issue a citation stating that the
9-51 application for guardianship was filed, the name of the proposed
9-52 ward, and the name of the applicant. The citation must cite all
9-53 persons interested in the welfare of the proposed ward to appear at
9-54 the time and place stated in the notice if they wish to contest the
9-55 application. The citation shall be posted.
9-56 (c) The sheriff or other officer shall personally serve
9-57 citation to appear and answer the application for guardianship on:
9-58 (1) a proposed ward who is 12 years of age or older;
9-59 (2) the parents of a proposed ward if the whereabouts
9-60 of the parents are known or can be reasonably ascertained;
9-61 (3) any court-appointed conservator or person having
9-62 control of the care and welfare of the proposed ward;
9-63 (4) a proposed ward's spouse; and
9-64 (5) an attorney ad litem or guardian ad litem
9-65 appointed to represent the interests of a missing person.
9-66 (d) The court clerk, at the applicant's request, or the
9-67 applicant shall mail a copy of the notice by registered or
9-68 certified mail, return receipt requested, to the following persons
9-69 if their whereabouts are known or can be reasonably ascertained:
9-70 (1) all adult siblings and all adult children of a
10-1 proposed ward;
10-2 (2) the administrator of a nursing home facility or
10-3 similar facility in which the proposed ward resides;
10-4 (3) the operator of a residential facility in which
10-5 the proposed ward resides; and
10-6 (4) a person whom the applicant knows to hold a power
10-7 of attorney signed by the proposed ward.
10-8 (e) A person other than the proposed ward who is entitled to
10-9 receive notice or personal service of citation under Subsections
10-10 (c) and (d) of this section may choose, in person or by attorney ad
10-11 litem, by writing filed with the clerk, to waive the receipt of
10-12 notice or the issuance and personal service of citation.
10-13 (f) The court may not act on an application for the creation
10-14 of a guardianship until the Monday following the expiration of the
10-15 10-day period beginning the date service of notice and citation has
10-16 been made as provided by Subsections (b), (c), and (d)(1) of this
10-17 section. The validity of a guardianship created under this chapter
10-18 is not affected by the failure of the clerk or applicant to comply
10-19 with the requirements of Subsections (d)(2)-(4) of this section.
10-20 (g) It is not necessary for a person who files an
10-21 application for the creation of a guardianship under this chapter
10-22 to be served with citation or waive the issuance and personal
10-23 service of citation under this section.
10-24 SECTION 19. Section 636, Texas Probate Code, is amended to
10-25 read as follows:
10-26 Sec. 636. NOTICES TO DEPARTMENT OF VETERANS AFFAIRS
10-27 <VETERANS ADMINISTRATION> BY GUARDIANS. When an annual or other
10-28 account of funds, or an application for the expenditure of or
10-29 investment of funds is filed by a guardian whose ward is a
10-30 beneficiary of the Department of Veterans Affairs <Veterans
10-31 Administration>, or when a claim against the estate of a ward who
10-32 is a beneficiary of the Department of Veterans Affairs <Veterans
10-33 Administration> is filed, the court shall set a date for the
10-34 hearing of the account, application, petition, or claim to be held
10-35 not less than 20 days from the date of the filing of the account,
10-36 application, petition, or claim. The person who files <clerk of
10-37 the court in which> the account, application, petition, or claim
10-38 <is filed> shall give notice of the date of the filing <hearing> to
10-39 the office of the Department of Veterans Affairs <Veterans
10-40 Administration> in whose territory the court is located <of the
10-41 hearing> by mailing to the office a certified copy of the account,
10-42 application, petition, or claim not later <less> than five <15>
10-43 days after <before> the <hearing> date of the filing. An office of
10-44 the Department of Veterans Affairs <Veterans Administration>,
10-45 through its attorney, may waive the service of notice and the time
10-46 within which a hearing may be had in those cases. <The account,
10-47 application, petition, or claim shall be filed in duplicate, and
10-48 the clerk of the court is entitled to a fee of 25 cents, taxable
10-49 against the estate, for certifying the copy of the account,
10-50 application, petition, or claim. The clerk shall mail to the
10-51 office of the Veterans Administration the certified copy. If not
10-52 filed in duplicate, the clerk shall be entitled to an additional
10-53 fee of 15 cents per 100 words for making a copy of the account,
10-54 application, petition, or claim. The additional copying costs
10-55 shall be taxed and collected from the guardian and may not be
10-56 charged to the ward's estate.>
10-57 SECTION 20. Section 642, Texas Probate Code, is amended by
10-58 adding Subsection (c) to read as follows:
10-59 (c) The court shall determine by motion in limine the
10-60 standing of a person who has an interest that is adverse to a
10-61 proposed ward or incapacitated person.
10-62 SECTION 21. Section 644, Texas Probate Code, is amended to
10-63 read as follows:
10-64 Sec. 644. Hearing by Submission. (a) A court may consider
10-65 by submission a motion or application filed under this chapter
10-66 unless<:>
10-67 <(1)> the proceeding is:
10-68 (1) contested; or
10-69 (2) <the motion or application is superseded by local
10-70 rules; or>
11-1 <(3) the proceeding is> an application for the
11-2 appointment of a guardian.
11-3 (b) <A motion or application that a court may consider under
11-4 submission must be accompanied by a notice of the filing of the
11-5 motion or application that contains the date the motion or
11-6 application is to be submitted to the court. The time for notice
11-7 provided under this subsection may not be less than the time
11-8 otherwise prescribed by law for notice of other motions or
11-9 applications filed with the court.>
11-10 <(c) Without court approval, a motion or application that a
11-11 court may consider under submission may not be submitted to the
11-12 court before the 10th day after the date the motion or application
11-13 was filed.>
11-14 <(d) A motion or application must be submitted to the court
11-15 for a ruling on the date of submission that is contained in the
11-16 notice of submission under Subsection (b) of this section or on a
11-17 later date that is approved by the court.>
11-18 <(e) Without court approval, a response to a motion or
11-19 application that a court may consider under submission must be in
11-20 writing and must be filed before the second business day before the
11-21 date of submission.>
11-22 <(f) On the date of submission or another date that is
11-23 approved by the court, the court shall schedule a hearing for a
11-24 motion or application that a court may consider under submission
11-25 only if a response to the motion or application is filed by a
11-26 person interested in the guardianship who:>
11-27 <(1) contests the relief sought in the motion or
11-28 application;>
11-29 <(2) requests to be present at the hearing; or>
11-30 <(3) requests oral argument on the person's exceptions
11-31 to the motion or application.>
11-32 <(g)> The burden of proof at a hearing on a motion or
11-33 application that is being considered by the court on submission is
11-34 on the party who is seeking relief under the motion or application.
11-35 (c) <(h)> The court may consider a person's failure to file
11-36 a response to a motion or application that may be considered on
11-37 submission as a representation that the person does not oppose the
11-38 motion or application.
11-39 (d) <(i)> A person's request for oral argument is not a
11-40 response to a motion or application under this section.
11-41 (e) <(j)> The court, on its own motion, may order oral
11-42 argument on a motion or application that may be considered by
11-43 submission.
11-44 SECTION 22. Sections 646(b), (c), and (d), Texas Probate
11-45 Code, are amended to read as follows:
11-46 (b) To be eligible for appointment as an attorney ad litem,
11-47 a person must be certified by the State Bar of Texas or a person or
11-48 other entity designated by the state bar as having successfully
11-49 completed a course of study in guardianship law and procedure
11-50 sponsored by the state bar or its designee.
11-51 (c) For certification under Subsection (b) of this section,
11-52 the state bar shall <may not> require <more than> four hours of
11-53 credit.
11-54 (d) A certificate issued under Subsection (b) of this
11-55 section expires on the second anniversary of the date the
11-56 certificate was issued. A person whose certificate has expired
11-57 must obtain a new certificate to be eligible for appointment as an
11-58 attorney ad litem. <The applicant is not required to again
11-59 complete the course of study required by Subsection (b) of this
11-60 section unless the state bar determines that the course has changed
11-61 substantially since the person last completed the course.>
11-62 SECTION 23. Section 648, Texas Probate Code, is amended by
11-63 adding Subsection (f) to read as follows:
11-64 (f) This section does not apply to a guardianship that is
11-65 created only because it is necessary for a person to have a
11-66 guardian appointed to receive funds from a governmental source.
11-67 SECTION 24. Subpart E, Part 2, Chapter XIII, Texas Probate
11-68 Code, is amended by adding Section 648A to read as follows:
11-69 Sec. 648A. DUTIES OF COURT INVESTIGATOR. (a) On the filing
11-70 of an application for guardianship under Section 682 of this code,
12-1 a court investigator shall investigate the circumstances alleged in
12-2 the application to determine whether a less restrictive alternative
12-3 than guardianship is appropriate.
12-4 (b) A court investigator shall:
12-5 (1) supervise the court visitor program established
12-6 under Section 648 of this code and in that capacity serve as the
12-7 chief court visitor;
12-8 (2) investigate a complaint received from any person
12-9 about a guardianship and report to the judge, if necessary; and
12-10 (3) perform other duties as assigned by the judge.
12-11 (c) After making an investigation under Subsection (a) or
12-12 (b) of this section, a court investigator shall file with the court
12-13 a report of the court investigator's findings and conclusions.
12-14 Disclosure to a jury of the contents of a court investigator's
12-15 report is subject to the Texas Rules of Civil Evidence. In a
12-16 contested case, the court investigator shall provide copies of the
12-17 report to the attorneys for the parties before the earlier of:
12-18 (1) the seventh day after the day the report is
12-19 completed; or
12-20 (2) the 10th day before the day the trial is scheduled
12-21 to begin.
12-22 (d) Nothing in this section supersedes any duty or
12-23 obligation of another to report or investigate abuse or neglect
12-24 under any statute of this state.
12-25 SECTION 25. Section 659, Texas Probate Code, is amended to
12-26 read as follows:
12-27 Sec. 659. Issuance of Letters of Guardianship. (a) When a
12-28 person who is appointed guardian has qualified under Section 699 of
12-29 this code <by taking the oath and giving any bond required by law>,
12-30 the clerk shall issue to the guardian a certificate under seal,
12-31 stating the fact of the appointment, of the qualification, <and>
12-32 the date of the appointment and qualification, and the date the
12-33 letters of guardianship expire. The certificate issued by the
12-34 clerk constitutes letters of guardianship. <The order of the court
12-35 appointing the guardian is effective on the issuance of letters of
12-36 guardianship. The order is evidence of the authority of the
12-37 guardian to act within the scope of the powers and duties set forth
12-38 in the order.>
12-39 (b) All letters <Letters> of guardianship expire one year
12-40 and four months <120 days> after the date of issuance unless
12-41 renewed.
12-42 (c) The clerk may not <shall> renew letters of guardianship
12-43 relating to the appointment of a guardian of the estate until <on
12-44 the receipt and approval by> the court receives and approves <of>
12-45 the guardian's annual accounting. The clerk may not renew letters
12-46 of guardianship relating to the appointment of a guardian of the
12-47 person until the court receives and approves the annual report. If
12-48 the guardian's annual accounting or annual report is disapproved or
12-49 not timely filed, the clerk may not issue further letters of
12-50 guardianship to the delinquent <that> guardian <relating to the
12-51 ward or the ward's estate> unless ordered by the court.
12-52 (d) Regardless of the date the court approves an annual
12-53 accounting or annual report for purposes of this section, a renewal
12-54 relates back to the date the original letters of guardianship are
12-55 issued, unless the accounting period has been changed as provided
12-56 by this chapter, in which case a renewal relates back to the first
12-57 day of the accounting period.
12-58 SECTION 26. Section 660, Texas Probate Code, is amended to
12-59 read as follows:
12-60 Sec. 660. LETTERS OR ORDER <CERTIFICATE> MADE EVIDENCE. (a)
12-61 Letters of guardianship or a certificate under seal of the clerk of
12-62 the court that granted the letters issued under Section 659 of this
12-63 code is sufficient evidence of the appointment and qualification of
12-64 the guardian and of the date of qualification.
12-65 (b) The court order that appoints the guardian is evidence
12-66 of the authority granted to the guardian and of the scope of the
12-67 powers and duties that the guardian may exercise only after the
12-68 date letters of guardianship or a certificate has been issued under
12-69 Section 659 of this code.
12-70 SECTION 27. Section 665, Texas Probate Code, is amended to
13-1 read as follows:
13-2 Sec. 665. COMPENSATION OF GUARDIANS AND TEMPORARY GUARDIANS
13-3 <GUARDIAN>. (a) The court may authorize compensation for a
13-4 guardian or a temporary guardian serving as a guardian of the
13-5 person alone from available funds of the ward's estate. The court
13-6 shall set the compensation in an amount not exceeding five percent
13-7 of the ward's gross income. In determining whether to authorize
13-8 compensation for a guardian under this section, the court shall
13-9 consider the ward's monthly income from all sources and whether the
13-10 ward receives medical assistance under the state Medicaid program
13-11 <Chapter 32, Human Resources Code>.
13-12 (b) The guardian or temporary guardian of an <the> estate is
13-13 entitled to a fee of five percent of the gross income of the ward's
13-14 estate and five percent of all money paid out of the estate on a
13-15 court finding that the guardian or temporary guardian has taken
13-16 care of and managed the estate in compliance with the standards of
13-17 this chapter. In this section, the term "money paid out" does not
13-18 include any money loaned, invested, or paid over on the settlement
13-19 of the guardianship or a tax-motivated gift made by the ward. If
13-20 the fee is an unreasonably low amount, the court may authorize
13-21 reasonable compensation to a guardian or temporary guardian for
13-22 services as guardian or temporary guardian of the estate. The
13-23 court, on application of an interested person or on its own motion,
13-24 may deny a fee authorized under this section in whole, or in part,
13-25 if:
13-26 (1) the court finds that the guardian or temporary
13-27 guardian has not adequately performed the duties required of a
13-28 <the> guardian or temporary guardian under this chapter; or
13-29 (2) the guardian or temporary guardian has been
13-30 removed for cause.
13-31 (c) Except as provided by Subsection (b) of this section for
13-32 a fee that is determined by the court to be unreasonably low, the
13-33 aggregate fee of the guardian of the person and guardian of the
13-34 estate may not exceed an amount equal to five percent of the gross
13-35 income of the ward's estate plus five percent of all money paid out
13-36 of the estate.
13-37 (d) In this section "gross income" does not include
13-38 Department of Veterans Affairs or Social Security benefits received
13-39 by a ward.
13-40 SECTION 28. Subpart H, Part 2, Chapter XIII, Texas Probate
13-41 Code, is amended by adding Sections 665A, 665B, and 665C to read as
13-42 follows:
13-43 Sec. 665A. PAYMENT FOR PROFESSIONAL SERVICES. The court
13-44 shall order the payment of a fee set by the court as compensation
13-45 to the attorneys, mental health professionals, and interpreters
13-46 appointed under Section 646 or 687 of this code, as applicable, to
13-47 be taxed as costs in the case. If after examining the proposed
13-48 ward's assets the court determines the proposed ward is unable to
13-49 pay for services provided by an attorney, a mental health
13-50 professional, or an interpreter appointed under Section 646 or 687
13-51 of this code, as applicable, the county is responsible for the cost
13-52 of those services.
13-53 Sec. 665B. COMPENSATION OF CERTAIN ATTORNEYS. (a) A court
13-54 that creates a guardianship for a ward under this chapter, on
13-55 request of a person who filed an application to be appointed
13-56 guardian of the proposed ward, may authorize compensation of an
13-57 attorney who represents the person at the application hearing from
13-58 available funds of the ward's estate regardless of whether that
13-59 person is appointed the ward's guardian.
13-60 (b) The court may not authorize compensation under this
13-61 section unless the court finds that the applicant acted in good
13-62 faith and for just cause in the filing and prosecution of the
13-63 application.
13-64 Sec. 665C. COMPENSATION FOR COLLECTION OF CLAIMS AND
13-65 RECOVERY OF PROPERTY. (a) Except as provided by Subsection (b) of
13-66 this section, a guardian of an estate may enter into a contract to
13-67 convey, or may convey, a contingent interest in any property sought
13-68 to be recovered, not exceeding one-third thereof for services of
13-69 attorneys, subject only to the approval of the court in which the
13-70 estate is being administered.
14-1 (b) A guardian of an estate may convey or contract to convey
14-2 for services of attorneys a contingent interest that exceeds
14-3 one-third of the property sought to be recovered under this section
14-4 only on the approval of the court in which the estate is being
14-5 administered. The court must approve a contract entered into or
14-6 conveyance made under this section before an attorney performs any
14-7 legal services. A contract entered into or conveyance made in
14-8 violation of this section is void, unless the court ratifies or
14-9 reforms the contract or documents relating to the conveyance to the
14-10 extent necessary to cause the contract or conveyance to meet the
14-11 requirements of this section.
14-12 (c) In approving a contract or conveyance under Subsection
14-13 (a) or (b) of this section for services of an attorney, the court
14-14 shall consider:
14-15 (1) the time and labor that will be required, the
14-16 novelty and difficulty of the questions to be involved, and the
14-17 skill that will be required to perform the legal services properly;
14-18 (2) the fee customarily charged in the locality for
14-19 similar legal services;
14-20 (3) the value of property recovered or sought to be
14-21 recovered by the personal representative under this section;
14-22 (4) the benefits to the estate that the attorney will
14-23 be responsible for securing; and
14-24 (5) the experience and ability of the attorney who
14-25 will be performing the services.
14-26 (d) On satisfactory proof to the court, a guardian of an
14-27 estate is entitled to all necessary and reasonable expenses
14-28 incurred by the guardian in collecting or attempting to collect a
14-29 claim or debt owed to the estate or in recovering or attempting to
14-30 recover property to which the estate has a title or claim.
14-31 SECTION 29. Section 669, Texas Probate Code, is amended to
14-32 read as follows:
14-33 Sec. 669. Costs Against Guardianship. (a) Except as
14-34 provided by Subsection (b), in <In> a guardianship matter, the cost
14-35 of the proceeding, including the cost of the guardian ad litem or
14-36 court visitor, shall be paid out of the guardianship estate, or, if
14-37 the estate is insufficient to pay for the cost of the proceeding,
14-38 the cost of the proceeding shall be paid out of the county
14-39 treasury, and the judgment of the court shall be issued
14-40 accordingly.
14-41 (b) If a court denies an application for the appointment of
14-42 a guardian under this chapter based on the recommendation of a
14-43 court investigator, the applicant shall pay the cost of the
14-44 proceeding.
14-45 SECTION 30. Subpart I, Part 2, Chapter XIII, Texas Probate
14-46 Code, is amended by adding Section 672 to read as follows:
14-47 Sec. 672. ANNUAL DETERMINATION WHETHER GUARDIANSHIP SHOULD
14-48 BE CONTINUED, MODIFIED, OR TERMINATED. (a) A court in which a
14-49 guardianship proceeding is pending shall review annually each
14-50 guardianship in which the application to create the guardianship
14-51 was filed after September 1, 1993, and may review annually any
14-52 other guardianship to determine whether the guardianship should be
14-53 continued, modified, or terminated.
14-54 (b) In reviewing a guardianship as provided by Subsection
14-55 (a) of this section, a statutory probate court may:
14-56 (1) review any report prepared by a court investigator
14-57 under Section 648A of this code;
14-58 (2) review any report prepared by a court visitor
14-59 under Section 648 of this code;
14-60 (3) conduct a hearing; or
14-61 (4) review an annual account prepared under Section
14-62 741 of this code or a report prepared under Section 743 of this
14-63 code.
14-64 (c) In reviewing a guardianship as provided by Subsection
14-65 (a) of this section, a court that is not a statutory probate court
14-66 may use any appropriate method determined by the court according to
14-67 the court's caseload and the resources available to the court.
14-68 (d) A determination under this section must be in writing
14-69 and filed with the clerk.
14-70 (e) This section does not apply to a guardianship that is
15-1 created only because it is necessary for a person to have a
15-2 guardian appointed to receive funds from a governmental source.
15-3 SECTION 31. Section 680, Texas Probate Code, is amended to
15-4 read as follows:
15-5 Sec. 680. SELECTION OF GUARDIAN BY MINOR. (a) When an
15-6 application is filed for the guardianship of the person or estate,
15-7 or both, of a minor at least 12 <14> years of age, the minor, by
15-8 writing filed with the clerk, may choose the guardian if the court
15-9 approves the choice and finds that the choice is in the best
15-10 interest of the minor.
15-11 (b) A minor at least 12 <14> years of age may select another
15-12 guardian of either the minor's person or estate, or both, if the
15-13 minor has a guardian appointed by the court or the minor has a
15-14 guardian appointed by will or written declaration of the parent of
15-15 the minor and that guardian dies, resigns, or is removed from
15-16 guardianship. If the court is satisfied that the person selected
15-17 is suitable and competent and that the appointment of the person is
15-18 in the best interest of the minor, it shall make the appointment
15-19 and revoke the letters of guardianship of the former guardian. The
15-20 minor shall make the selection by filing an application in open
15-21 court in person or by attorney.
15-22 SECTION 32. Section 681, Texas Probate Code, is amended to
15-23 read as follows:
15-24 Sec. 681. PERSONS DISQUALIFIED TO SERVE AS <INELIGIBLE TO
15-25 BE> GUARDIANS. A person may not be appointed guardian if the
15-26 person is:
15-27 (1) a minor;
15-28 (2) a person whose conduct is notoriously bad;
15-29 (3) an incapacitated person;
15-30 (4) a person who is a party or whose parent is a party
15-31 to a lawsuit concerning or affecting the welfare of the proposed
15-32 ward, unless the court:
15-33 (A) determines that the lawsuit claim of the
15-34 person who has applied to be appointed guardian is not in conflict
15-35 with the lawsuit claim of the proposed ward; or
15-36 (B) appoints a guardian ad litem to represent
15-37 the interests of the proposed ward throughout the litigation of the
15-38 ward's lawsuit claim;
15-39 (5) a person indebted to the proposed ward unless the
15-40 person pays the debt before appointment;
15-41 (6) a person asserting a claim adverse to the proposed
15-42 ward or the proposed ward's property, real or personal;
15-43 (7) a person who, because of inexperience, lack of
15-44 education, or other good reason, is incapable of properly and
15-45 prudently managing and controlling the ward or the ward's estate;
15-46 (8) a person, institution, or corporation found
15-47 unsuitable by the court;
15-48 (9) a person disqualified in a declaration made under
15-49 Section 679 of this code; or
15-50 (10) a nonresident person who has not filed with the
15-51 court the name of a resident agent to accept service of process in
15-52 all actions or proceedings relating to the guardianship.
15-53 SECTION 33. Section 684, Texas Probate Code, is amended to
15-54 read as follows:
15-55 Sec. 684. FINDINGS REQUIRED. (a) Before appointing a
15-56 guardian, the court must find by clear and convincing evidence
15-57 that:
15-58 (1) the proposed ward is an incapacitated person;
15-59 (2) it is in the best interest of the proposed ward to
15-60 have the court appoint a person as guardian of the proposed ward
15-61 <the court has venue of the case>; and
15-62 (3) <the person to be appointed guardian is eligible
15-63 to act as guardian and is entitled to appointment, or, if no
15-64 eligible person entitled to appointment applies, the person
15-65 appointed is a proper person to act as guardian;>
15-66 <(4)> the rights of the proposed ward or the proposed
15-67 ward's <persons or> property will be protected by the appointment
15-68 of a guardian.<;>
15-69 (b) Before appointing a guardian, the court must find by a
15-70 preponderance of the evidence that:
16-1 (1) the court has venue of the case;
16-2 (2) the person to be appointed guardian is eligible to
16-3 act as guardian and is entitled to appointment, or, if no eligible
16-4 person entitled to appointment applies, the person appointed is a
16-5 proper person to act as guardian;
16-6 (3) <(5)> if a guardian is appointed for a minor, the
16-7 guardianship is not created for the primary purpose of enabling the
16-8 minor to establish residency for enrollment in a school or school
16-9 district for which the minor is not otherwise eligible for
16-10 enrollment; <and>
16-11 (4) <(6)> if the guardian is appointed for a missing
16-12 person, the person was reported missing by an executive department
16-13 of the United States at least six months earlier than the date of
16-14 the filing of the application and currently is missing; and
16-15 (5) the proposed ward is totally without capacity as
16-16 provided by this code to care for himself or herself and to manage
16-17 the individual's property, or the proposed ward lacks the capacity
16-18 to do some, but not all, of the tasks necessary to care for himself
16-19 or herself or to manage the individual's property.
16-20 (c) <(b)> The court may not grant an application to create a
16-21 guardianship unless the applicant proves each element required by
16-22 this code. A determination of incapacity of an adult proposed
16-23 ward, other than a missing person or a person who must have a
16-24 guardian appointed to receive funds due the person from any
16-25 governmental source, must be evidenced by recurring acts or
16-26 occurrences within the preceding six-month period and not by
16-27 isolated instances of negligence or bad judgment.
16-28 (d) <(c)> A court may not appoint a guardian of the estate
16-29 of a minor when a payment of claims is made under Section 887 of
16-30 this code.
16-31 (e) <(d)> A certificate of the executive head or a
16-32 representative of the bureau, department, or agency of the
16-33 government, to the effect that the appointment of a guardian is a
16-34 condition precedent to the payment of any funds due the proposed
16-35 ward from that governmental entity, is prima facie evidence of the
16-36 necessity for the appointment of a guardian.
16-37 SECTION 34. Section 685(a), Texas Probate Code, is amended
16-38 to read as follows:
16-39 (a) A proposed ward other than a missing person must be
16-40 present at a hearing to appoint a guardian unless the court, on the
16-41 record or in the order, determines that a personal appearance is
16-42 not necessary. The court may close the hearing if the proposed
16-43 ward or the proposed ward's counsel requests a closed hearing.
16-44 SECTION 35. Subpart A, Part 3, Chapter XIII, Texas Probate
16-45 Code, is amended by adding Section 687 to read as follows:
16-46 Sec. 687. EXAMINATIONS AND REPORTS. (a) The court may not
16-47 grant an application to create a guardianship for an incapacitated
16-48 person, other than a minor, missing person, person whose alleged
16-49 incapacity is mental retardation, or person for whom it is
16-50 necessary to have a guardian appointed only to receive funds from a
16-51 governmental source, unless the applicant presents to the court a
16-52 written letter or certificate from a physician licensed in this
16-53 state that is dated not earlier than the 120th day before the date
16-54 of the filing of the application and based on an examination the
16-55 physician performed not earlier than the 120th day before the date
16-56 of the filing of the application. The letter or certificate must:
16-57 (1) describe the nature and degree of incapacity,
16-58 including the medical history if reasonably available;
16-59 (2) provide a medical prognosis specifying the
16-60 estimated severity of the incapacity;
16-61 (3) state how or in what manner the proposed ward's
16-62 ability to make or communicate responsible decisions concerning
16-63 himself or herself is affected by the person's physical or mental
16-64 health;
16-65 (4) state whether any current medication affects the
16-66 demeanor of the proposed ward or the proposed ward's ability to
16-67 participate fully in a court proceeding;
16-68 (5) describe the precise physical and mental
16-69 conditions underlying a diagnosis of senility, if applicable; and
16-70 (6) include any other information required by the
17-1 court.
17-2 (b) Except as provided by Subsection (c) of this section, if
17-3 the court determines it is necessary, the court may appoint the
17-4 necessary physicians to examine the proposed ward. A physician who
17-5 examines the proposed ward, other than a physician or psychologist
17-6 who examines the proposed ward under Subsection (c) of this
17-7 section, shall make available to an attorney ad litem appointed to
17-8 represent the proposed ward, for inspection, a written letter or
17-9 certificate from the physician that complies with the requirements
17-10 of Subsection (a) of this section.
17-11 (c) If the basis of the proposed ward's alleged incapacity
17-12 is mental retardation, the proposed ward shall be examined by a
17-13 physician or psychologist licensed in this state or certified by
17-14 the Texas Department of Mental Health and Mental Retardation to
17-15 perform the examination, unless there is written documentation
17-16 filed with the court that shows that the proposed ward has been
17-17 examined according to the rules adopted by the Texas Department of
17-18 Mental Health and Mental Retardation not earlier than six months
17-19 before the date of a hearing to appoint a guardian for the proposed
17-20 ward. The physician or psychologist shall conduct the examination
17-21 according to the rules adopted by the Texas Department of Mental
17-22 Health and Mental Retardation and shall submit written findings and
17-23 recommendations to the court.
17-24 SECTION 36. Section 690, Texas Probate Code, is amended to
17-25 read as follows:
17-26 Sec. 690. PERSONS <ONLY ONE PERSON> APPOINTED GUARDIAN.
17-27 Only one person may be appointed as guardian of the person or
17-28 estate, but one person may be appointed guardian of the person and
17-29 another of the estate, if it is in the best interest <to the
17-30 advantage> of the ward. Nothing in this section prohibits the
17-31 joint appointment of a husband and wife, of joint managing
17-32 conservators, or of coguardians appointed under the laws of a
17-33 jurisdiction other than this state.
17-34 SECTION 37. Section 691, Texas Probate Code, is amended to
17-35 read as follows:
17-36 Sec. 691. Agency as Last Resort. Except as a last resort,
17-37 the court may not appoint as guardian the Texas Department of
17-38 Mental Health and Mental Retardation, the <Texas> Department of
17-39 Protective and Regulatory <Human> Services, a community mental
17-40 health and mental retardation center, or any other agency, public
17-41 or private, that is directly providing services to the
17-42 incapacitated person.
17-43 SECTION 38. Section 692, Texas Probate Code, is amended to
17-44 read as follows:
17-45 Sec. 692. DISMISSAL OF APPLICATION. If it is found that an
17-46 adult person possesses the capacity to care for himself or herself
17-47 and to manage the individual's property as would a reasonably
17-48 prudent person, the court shall dismiss the application for
17-49 guardianship <ORDER APPOINTING GUARDIAN. The order of the court
17-50 appointing a guardian must specify:>
17-51 <(1) the name of the person appointed;>
17-52 <(2) the name of the ward;>
17-53 <(3) whether the guardian is of the person or the
17-54 estate, or of both, of the ward;>
17-55 <(4) the amount of any bond required;>
17-56 <(5) if it is a guardianship of the estate and the
17-57 court deems an appraisal is necessary, one or more but not more
17-58 than three disinterested persons to appraise the estate and to
17-59 return the appraisement to the court; and>
17-60 <(6) that the clerk will issue letters of guardianship
17-61 to the person appointed when the person has qualified according to
17-62 law>.
17-63 SECTION 39. Section 693, Texas Probate Code, is amended to
17-64 read as follows:
17-65 Sec. 693. ORDER OF COURT. (a) <If it is found that an
17-66 adult person possesses the capacity to care for himself or herself
17-67 and to manage the individual's property as would a reasonably
17-68 prudent person, the court shall dismiss the application for
17-69 guardianship.>
17-70 <(b)> If it is found that the proposed ward is totally
18-1 without capacity as provided by this code to care for himself or
18-2 herself and to manage the individual's property, the court <shall
18-3 include that determination as a finding of fact in its final order
18-4 in the proceeding, and the court> may appoint a guardian of the
18-5 individual's person or estate, or both, with full authority over
18-6 the incapacitated person except as provided by law. An order
18-7 appointing a guardian under this subsection must contain findings
18-8 of fact and specify:
18-9 (1) the information required by Subsection (c) of this
18-10 section;
18-11 (2) that the guardian has full authority over the
18-12 incapacitated person; and
18-13 (3) if necessary, the amount of funds from the corpus
18-14 of the person's estate the court will allow the guardian to expend
18-15 for the education and maintenance of the person under Section 776
18-16 of this code.
18-17 (b) <(c)> If it is found that the person lacks the capacity
18-18 to do some, but not all, of the tasks necessary to care for himself
18-19 or herself or to manage the individual's property, the court may
18-20 appoint a guardian with limited powers and permit the individual to
18-21 care for himself or herself or to manage the individual's property
18-22 commensurate with the individual's ability.
18-23 <(d)> An order appointing a guardian under this subsection
18-24 must contain findings of fact and specify:
18-25 (1) the information required by Subsection (c)
18-26 <Section 692> of this section <code>;
18-27 (2) the specific powers, limitations, or duties of the
18-28 guardian with respect to the care of the person or the management
18-29 of the person's property by the guardian; and
18-30 (3) if necessary, the amount of funds from the corpus
18-31 of the person's estate the court will allow the guardian to expend
18-32 for the education and maintenance of the person under Section 776
18-33 of this code.
18-34 (c) The order of the court appointing a guardian must
18-35 specify:
18-36 (1) the name of the person appointed;
18-37 (2) the name of the ward;
18-38 (3) whether the guardian is of the person or the
18-39 estate, or of both, of the ward;
18-40 (4) the amount of any bond required;
18-41 (5) if it is a guardianship of the estate and the
18-42 court deems an appraisal is necessary, one or more but not more
18-43 than three disinterested persons to appraise the estate and to
18-44 return the appraisement to the court; and
18-45 (6) that the clerk will issue letters of guardianship
18-46 to the person appointed when the person has qualified according to
18-47 law.
18-48 (d) <(e)> An order appointing a guardian may not duplicate
18-49 or conflict with the powers and duties of any other guardian.
18-50 (e) An order appointing a guardian or a successor guardian
18-51 may specify a period of not more than one year during which a
18-52 petition for adjudication that the incapacitated person no longer
18-53 requires the guardianship may not be filed without special leave.
18-54 SECTION 40. Section 694, Texas Probate Code, is amended to
18-55 read as follows:
18-56 Sec. 694. TERM OF APPOINTMENT OF GUARDIAN. (a) Unless
18-57 otherwise discharged as provided by law, a guardian remains in
18-58 office until the estate is closed.
18-59 (b) Subject to Subsection (f) of this section, the <The>
18-60 guardianship shall be settled and closed when the incapacitated
18-61 person:
18-62 (1) dies and, if the person was married, the person's
18-63 spouse qualifies as survivor in community;
18-64 (2) is found by the court to have full capacity to
18-65 care for himself or herself and to manage the person's property;
18-66 (3) is no longer a minor;
18-67 (4) <returns to the United States,> if the person was
18-68 a missing person and:
18-69 (A) has been confirmed dead;
18-70 (B) is legally declared dead under applicable
19-1 statutes;
19-2 (C) returns;
19-3 (D) has had the person's whereabouts determined;
19-4 or
19-5 (E) no longer needs a guardianship <and the
19-6 court grants the motion of any interested person to vacate the
19-7 original order of guardianship>; or
19-8 (5) no longer must have a guardian appointed to
19-9 receive funds due the person from any governmental source.
19-10 (c) An order appointing a guardian or a successor guardian
19-11 may specify a period of not more than one year during which a
19-12 petition for adjudication that the incapacitated person no longer
19-13 requires the guardianship may not be filed without special leave.
19-14 (d) <Except as provided by Subsection (c) of this section, a
19-15 ward or any person interested in the ward's welfare may petition
19-16 the court for an order:>
19-17 <(1) finding that the ward no longer needs the
19-18 guardianship and ordering that the guardian resign or be removed;>
19-19 <(2) finding that the ward lacks the capacity to do
19-20 some or all of the tasks necessary to care for himself or herself
19-21 or to manage the ward's property and granting additional powers or
19-22 duties to the guardian with respect to the care of the ward or the
19-23 management of the ward's property by the guardian; or>
19-24 <(3) finding that the ward has regained the capacity
19-25 to do some, but not all, of the tasks necessary to care for himself
19-26 or herself or to manage the ward's property and:>
19-27 <(A) limiting the powers or duties of the
19-28 guardian with respect to the care of the ward or the management of
19-29 the ward's property by the guardian; and>
19-30 <(B) permitting the ward to care for himself or
19-31 herself or to manage the ward's property commensurate with the
19-32 ward's ability.>
19-33 <(e)> A request for an order under this section may be made
19-34 by informal letter to the court. A person who knowingly interferes
19-35 with the transmission of the request to the court may be adjudged
19-36 guilty of contempt of court.
19-37 (e) <(f)> If a nonresident guardian of a nonresident ward
19-38 qualifies as guardian under this chapter, the guardianship of any
19-39 resident guardian may be terminated.
19-40 (f) The guardianship of a missing person is not settled and
19-41 closed until the court grants the motion of any interested person
19-42 to vacate the original order of guardianship.
19-43 SECTION 41. Subpart A, Part 3, Chapter XIII, Texas Probate
19-44 Code, is amended by adding Section 694A to read as follows:
19-45 Sec. 694A. RESTORATION OF WARD. (a) A ward or any person
19-46 interested in the ward's welfare may petition the court for an
19-47 order:
19-48 (1) finding that the ward no longer needs the
19-49 guardianship and ordering the settlement and closing of the
19-50 guardianship;
19-51 (2) finding that the ward lacks the capacity to do
19-52 some or all of the tasks necessary to care for himself or herself
19-53 or to manage the ward's property and granting additional powers or
19-54 duties to the guardian with respect to the care of the ward or the
19-55 management of the ward's property by the guardian; or
19-56 (3) finding that the ward has regained the capacity to
19-57 do some, but not all, of the tasks necessary to care for himself or
19-58 herself or to manage the ward's property and:
19-59 (A) limiting the powers or duties of the
19-60 guardian with respect to the care of the ward or the management of
19-61 the ward's property by the guardian; and
19-62 (B) permitting the ward to care for himself or
19-63 herself or to manage the ward's property commensurate with the
19-64 ward's ability.
19-65 (b) A request for an order under this section may be made by
19-66 informal letter to the court. A person who knowingly interferes
19-67 with the transmission of the request to the court may be adjudged
19-68 guilty of contempt of court.
19-69 SECTION 42. Section 702, Texas Probate Code, is amended to
19-70 read as follows:
20-1 Sec. 702. Bond Required of Guardian of the Person Or Estate.
20-2 (a) Except as provided by Subsections (b) and (c) of this section,
20-3 a guardian of the person or of the estate of a ward is required to
20-4 give bond.
20-5 (b) A bond is not required to be given by a guardian that is
20-6 a corporate fiduciary, as defined by Section 601(5) of this code.
20-7 (c) When a will that is made by a surviving parent and is
20-8 probated in a court in this state directs that the guardian
20-9 appointed in the will serve without bond, the court finding that
20-10 the person is qualified shall issue letters of guardianship of the
20-11 person to the person named to be appointed guardian in the will
20-12 without requirement of bond. The court may not waive the
20-13 requirement of a bond for the guardian of the estate of a ward,
20-14 regardless of whether a surviving parent's will directs the court
20-15 to waive the bond.
20-16 SECTION 43. Section 742(f), Texas Probate Code, is amended
20-17 to read as follows:
20-18 (f) If an account is found to be incorrect, it shall be
20-19 corrected. When corrected to the satisfaction of the court, the
20-20 account shall be approved by a court order, and the court shall act
20-21 with respect to unpaid claims, as follows:
20-22 (1) if it appears from the exhibit, or from other
20-23 evidence, that the estate is wholly solvent, and that the guardian
20-24 has sufficient funds for the payment of every claim against the
20-25 estate, the court shall order immediate payment made of all claims
20-26 allowed and approved or established by judgment; and
20-27 (2) if it appears from the account, or from other
20-28 evidence, that the funds on hand are not sufficient for the payment
20-29 of all the claims, or if the estate is insolvent and the guardian
20-30 has any funds on hand, the court shall order the funds to be
20-31 applied to the payment of all claims having a preference in the
20-32 order of their priority if any claim is still unpaid, and then to
20-33 the payment pro rata of the other claims allowed and approved or
20-34 established by final judgment, taking into consideration also the
20-35 claims that were presented not later than 12 months after the date
20-36 of the granting of letters of guardianship <administration> and
20-37 those claims that are in suit or on which suit may yet be
20-38 instituted.
20-39 SECTION 44. Section 743(a), Texas Probate Code, is amended
20-40 to read as follows:
20-41 (a) The guardian of the person of a ward shall<, when there
20-42 is a separate guardian of the estate, shall at the expiration of 12
20-43 months from the date of the guardian's qualification and receipt of
20-44 letters, and annually thereafter,> return to the court a sworn,
20-45 written report <the guardian's sworn account> showing each item of
20-46 receipts and disbursements for the support and maintenance of the
20-47 ward, the education of the ward when necessary, and support and
20-48 maintenance of the ward's dependents, when authorized by order of
20-49 court.
20-50 SECTION 45. Section 743, Texas Probate Code, is amended by
20-51 adding Subsections (e)-(i) to read as follows:
20-52 (e) If the judge is satisfied that the facts stated in the
20-53 report are true, the court shall approve the report.
20-54 (f) The court on the court's own motion may waive the costs
20-55 and fees related to the filing of a report approved under
20-56 Subsection (e) of this section.
20-57 (g) Once each year for the duration of the guardianship, a
20-58 guardian of the person shall file the report that contains the
20-59 information required by Subsections (a) and (b) of this section.
20-60 Except as provided by Subsection (h) of this section, the report
20-61 must cover a 12-month reporting period that begins on the date the
20-62 guardian qualifies to serve.
20-63 (h) The court may change a reporting period for purposes of
20-64 this section but may not extend a reporting period so that it
20-65 covers more than 12 months.
20-66 (i) Each report is due not later than the 60th day after the
20-67 date on which the reporting period ends.
20-68 SECTION 46. Section 744, Texas Probate Code, is amended to
20-69 read as follows:
20-70 Sec. 744. Penalty for Failure to File Accountings, Exhibits,
21-1 or Reports. If a guardian fails to file any accounting, exhibit,
21-2 report of the guardian of the person, or other report required by
21-3 this chapter, any person interested in the estate may, on written
21-4 complaint filed with the clerk of the court, or the court on its
21-5 own motion, may cause the guardian to be cited to appear and show
21-6 cause why the guardian should not file the account, exhibit, or
21-7 report; and, on hearing, the court may order the guardian to file
21-8 the account, exhibit, or report, and, unless good cause is shown
21-9 for the failure to file the account, exhibit, or report, the court
21-10 may fine the guardian an amount not to exceed $1,000, revoke the
21-11 letters of the guardian, or fine the guardian an amount not to
21-12 exceed $1,000 and revoke the letters of the guardian <and may fine
21-13 the guardian an amount not to exceed $1,000>.
21-14 SECTION 47. Section 745(c), Texas Probate Code, is amended
21-15 to read as follows:
21-16 (c) When the estate of a minor ward consists only of cash or
21-17 cash equivalents in an amount of $25,000 or less, the guardianship
21-18 of the estate may be terminated and the assets paid to the county
21-19 clerk of the county in which the guardianship proceeding is
21-20 pending, and the clerk shall manage the funds as provided by
21-21 Section 887 <885> of this code.
21-22 SECTION 48. Section 759(a), Texas Probate Code, is amended
21-23 to read as follows:
21-24 (a) In case of the death of the guardian of the person or of
21-25 the estate of a ward, a personal representative of the deceased
21-26 guardian <person> shall account for, pay, and deliver to a person
21-27 legally entitled to receive the property, all the property
21-28 belonging to the guardianship that is entrusted to the care of the
21-29 representative, at the time and in the manner as the court orders.
21-30 On a finding that a necessity for the immediate appointment of a
21-31 successor guardian exists, the court may appoint a successor
21-32 guardian without citation or notice.
21-33 SECTION 49. Section 760, Texas Probate Code, is amended by
21-34 adding Subsection (g) to read as follows:
21-35 (g) The court at any time may order a resigning guardian who
21-36 has all or part of the estate of a ward to deliver all or part of
21-37 the ward's estate to a person who has been appointed and has
21-38 qualified as successor guardian.
21-39 SECTION 50. Section 761, Texas Probate Code, is amended by
21-40 adding Subsections (e) and (f) to read as follows:
21-41 (e) If the necessity exists, the court may immediately
21-42 appoint a successor but may not discharge the person removed as
21-43 guardian of the estate or release the person or the sureties on the
21-44 person's bond until final order or judgment is rendered on the
21-45 final account of the guardian.
21-46 (f) The court at any time may order a person removed as
21-47 guardian under this section who has all or part of the estate of a
21-48 ward to deliver all or part of the ward's estate to a person who
21-49 has been appointed and has qualified as successor guardian.
21-50 SECTION 51. Section 772, Texas Probate Code, is amended to
21-51 read as follows:
21-52 Sec. 772. Collection of Claims and Recovery of Property.
21-53 <(a)> Every guardian of an estate shall use ordinary diligence to
21-54 collect all claims and debts due the ward and to recover possession
21-55 of all property of the ward to which the ward has claim or title,
21-56 if there is a reasonable prospect of collecting the claims or of
21-57 recovering the property. If the guardian wilfully neglects to use
21-58 ordinary diligence, the guardian and the sureties on the guardian's
21-59 bond shall be liable, at the suit of any person interested in the
21-60 estate, for the use of the estate, for the amount of the claims or
21-61 for the value of the property that has been lost due to the
21-62 guardian's neglect.
21-63 <(b) Except as provided by Subsection (c) of this section, a
21-64 guardian of an estate may enter into a contract to convey, or may
21-65 convey, a contingent interest in any property sought to be
21-66 recovered, not exceeding one-third thereof for services of
21-67 attorneys, subject only to the approval of the court in which the
21-68 estate is being administered.>
21-69 <(c) A guardian of an estate may convey or contract to
21-70 convey for services of attorneys a contingent interest that exceeds
22-1 one-third of the property sought to be recovered under this section
22-2 only on the approval of the court in which the estate is being
22-3 administered. The court must approve a contract entered into or
22-4 conveyance made under this section before an attorney performs any
22-5 legal services. A contract entered into or conveyance made in
22-6 violation of this section is void, unless the court ratifies or
22-7 reforms the contract or documents relating to the conveyance to the
22-8 extent necessary to cause the contract or conveyance to meet the
22-9 requirements of this section.>
22-10 <(d) In approving a contract or conveyance under Subsection
22-11 (b) or (c) of this section for services of an attorney, the court
22-12 shall consider:>
22-13 <(1) the time and labor that will be required, the
22-14 novelty and difficulty of the questions to be involved, and the
22-15 skill that will be required to perform the legal services properly;>
22-16 <(2) the fee customarily charged in the locality for
22-17 similar legal services;>
22-18 <(3) the value of property recovered or sought to be
22-19 recovered by the personal representative under this section;>
22-20 <(4) the benefits to the estate that the attorney will
22-21 be responsible for securing; and>
22-22 <(5) the experience and ability of the attorney who
22-23 will be performing the services.>
22-24 <(e) On satisfactory proof to the court, a guardian of an
22-25 estate is entitled to all necessary and reasonable expenses
22-26 incurred by the guardian in collecting or attempting to collect a
22-27 claim or debt owed to the estate or in recovering or attempting to
22-28 recover property to which the estate has a title or claim.>
22-29 SECTION 52. Section 773, Texas Probate Code, is amended to
22-30 read as follows:
22-31 Sec. 773. SUIT BY GUARDIAN OF ESTATE. A guardian of a
22-32 ward's estate appointed in this state may institute suits for the
22-33 recovery of personal property, debts, or damages and suits for
22-34 title to or possession of land or for any right attached to or
22-35 growing out of the same or for injury or damage done. Judgment in
22-36 those cases shall be conclusive but may be set aside by any person
22-37 interested for fraud or collusion on the part of the guardian.
22-38 SECTION 53. Section 776(b), Texas Probate Code, is amended
22-39 to read as follows:
22-40 (b) When a guardian has in good faith expended funds from
22-41 the corpus of the estate of the ward of the guardian for support
22-42 and maintenance for the ward under this section or Section 777 of
22-43 this code, and when it is not convenient or possible for the
22-44 guardian to first secure court approval, if the proof is clear and
22-45 convincing that the expenditures were reasonable and proper, and
22-46 are expenditures that the court would have granted authority to
22-47 make the expenditures out of the corpus, and the ward received the
22-48 benefits of the expenditures, the court may approve the
22-49 expenditures in the same manner as if the expenditures were made by
22-50 the guardian out of the income from the ward's estate. An
22-51 expenditure under this subsection may not exceed $5,000 per ward
22-52 during an annual accounting period, unless the expenditure is made
22-53 to a nursing home in which case the court may ratify any amount.
22-54 SECTION 54. Section 782, Texas Probate Code, is amended to
22-55 read as follows:
22-56 Sec. 782. Powers, Duties, and Obligations of Guardian of
22-57 Person Entitled to Government Funds. (a) A guardian of the person
22-58 for whom it is necessary to have a guardian appointed to receive
22-59 funds from a governmental source <agency> has the power to
22-60 administer only the funds received from the governmental source
22-61 <agency>, all earnings, interest, or profits derived from the
22-62 funds, and all property acquired with the funds. The guardian has
22-63 the power to receive the funds and pay out the expenses of
22-64 administering the guardianship and the expenses for the support,
22-65 maintenance, or education of the ward or the ward's dependents.
22-66 Expenditures for the support, maintenance, or education of the ward
22-67 or the ward's dependents may not exceed $12,000 during any 12-month
22-68 period without the court's approval.
22-69 (b) All acts performed before September 1, 1993, by
22-70 guardians of the estate of a person for whom it is necessary to
23-1 have a guardian appointed to receive and disburse funds that are
23-2 due the person from a governmental source <or agency> are validated
23-3 if the acts are performed in conformance with orders of a court
23-4 that has venue with respect to the support, maintenance, and
23-5 education of the ward or the ward's dependents and the investment
23-6 of surplus funds of the ward under this chapter and if the validity
23-7 of the act is not an issue in a probate proceeding or civil lawsuit
23-8 that is pending on September 1, 1993.
23-9 SECTION 55. Section 861, Texas Probate Code, is amended to
23-10 read as follows:
23-11 Sec. 861. OPINION OF ATTORNEY WITH RESPECT TO LOANS <AND
23-12 INVESTMENTS>. When the guardian of the estate of a ward lends <or
23-13 invests> the money of the ward, the guardian may not pay over or
23-14 transfer any money in consummation of the loan <or investment>
23-15 until the guardian has submitted to a reputable attorney for
23-16 examination all bonds, notes, mortgages, documents, abstracts, and
23-17 other papers pertaining to the loan <or investment> and the
23-18 guardian has received a written opinion from the attorney that all
23-19 papers pertaining to the loan <or investment> are regular and that
23-20 the title to the bonds, notes, or real estate is good. The
23-21 <attorney making the examination shall be paid a reasonable fee,
23-22 not to exceed one percent of the amount invested, unless one
23-23 percent of the amount invested is less than $25, in which event
23-24 the fee shall be $25. The guardian shall pay the fee out of the
23-25 funds of the ward's estate. On a loan, the> attorney's fee shall
23-26 be paid by the borrower. The guardian may obtain a mortgagee's
23-27 title insurance policy on any real estate loan instead of an
23-28 abstract and attorney's opinion.
23-29 SECTION 56. Section 862, Texas Probate Code, is amended to
23-30 read as follows:
23-31 Sec. 862. REPORT OF <INVESTMENT AND> LOANS. Not later than
23-32 the 30th day after the date money belonging to a ward's estate is
23-33 lent <or invested>, the guardian of the ward's estate shall report
23-34 to the court in writing, verified by affidavit, stating fully the
23-35 facts of the <investment or> loan, unless the <investment or> loan
23-36 was made pursuant to a court order.
23-37 SECTION 57. Section 867, Texas Probate Code, is amended to
23-38 read as follows:
23-39 Sec. 867. Creation of Management Trust. On application by
23-40 the guardian of a ward, the court in which the guardianship
23-41 proceeding is pending may enter an order that creates for the
23-42 ward's benefit a trust for the management of guardianship funds if
23-43 the court finds that the creation of the trust is in the ward's
23-44 best interests. The order shall direct the guardian to deliver all
23-45 or part of the assets of the guardianship to a trust company or a
23-46 state or national bank that has trust powers in this state. The
23-47 order shall include terms, conditions, and limitations placed on
23-48 the trust. The court shall maintain the trust under the same cause
23-49 number as the guardianship proceeding.
23-50 SECTION 58. Section 868(b), Texas Probate Code, is amended
23-51 to read as follows:
23-52 (b) The trust may provide that a trustee make a
23-53 distribution, payment, use, or application of trust funds, as
23-54 necessary and without the intervention of a guardian or other
23-55 representative of the ward, to the ward's guardian or to a person
23-56 who has physical custody of the ward for<:>
23-57 <(1)> the health, education <benefit>, support, or
23-58 maintenance of the ward or of another person whom the ward is
23-59 legally obligated to support <if the ward is a minor; or>
23-60 <(2) the support of the ward, and the support,
23-61 maintenance, and education of the ward's children if the ward is an
23-62 incapacitated person other than a minor>.
23-63 SECTION 59. Section 868, Texas Probate Code, is amended by
23-64 adding Subsection (c) to read as follows:
23-65 (c) The trust may provide that a trustee has the powers of a
23-66 trustee under Subtitle B, Title 9, Property Code.
23-67 SECTION 60. Subpart N, Part 4, Texas Probate Code, is
23-68 amended by adding Section 869A to read as follows:
23-69 Sec. 869A. SUCCESSOR TRUSTEE. The court may appoint a
23-70 corporate fiduciary as successor trustee if the trustee resigns,
24-1 becomes ineligible, or is removed.
24-2 SECTION 61. Section 870(b), Texas Probate Code, is amended
24-3 to read as follows:
24-4 (b) If the ward is an incapacitated person other than a
24-5 minor, the trust terminates on the date the court determines that a
24-6 guardianship is no longer necessary for the ward or on the death of
24-7 the ward <before the court's determination that a guardianship is
24-8 no longer necessary>.
24-9 SECTION 62. Section 872, Texas Probate Code, is amended to
24-10 read as follows:
24-11 Sec. 872. Liability. The guardian of the person or of the
24-12 estate of the ward or the surety on the bond of the guardian is not
24-13 liable for an act or omission of the trustee.
24-14 SECTION 63. Section 873, Texas Probate Code, is amended to
24-15 read as follows:
24-16 Sec. 873. Distribution of Trust Property. Unless otherwise
24-17 provided by the court, the trustee shall:
24-18 (1) prepare a final account in the same form and
24-19 manner that is required of a guardian under Section 749 of this
24-20 code; and
24-21 (2) on court approval, distribute the principal or any
24-22 undistributed income of the trust:
24-23 (A) to the ward when the trust terminates on its
24-24 own terms;
24-25 (B) to the successor trustee on appointment of a
24-26 successor trustee; or
24-27 (C) to the representative of the deceased ward's
24-28 estate on the ward's death <to the ward or to the representative of
24-29 the deceased ward's estate when the trust terminates on its own
24-30 terms or on the ward's death>.
24-31 SECTION 64. Sections 875(c), (i), (j), and (k), Texas
24-32 Probate Code, are amended to read as follows:
24-33 (c) A sworn, written application for the appointment of a
24-34 temporary guardian may be filed before the court appoints a
24-35 temporary guardian. The application must be filed not later than
24-36 the end of the next business day of the court after the date of
24-37 appointment of the temporary guardian. The application must state:
24-38 (1) the name and address of the person who is the
24-39 subject of the guardianship proceeding;
24-40 (2) the danger to the person or property alleged to be
24-41 imminent;
24-42 (3) the type of appointment and the particular
24-43 protection and assistance being requested;
24-44 (4) the facts and reasons supporting the allegations
24-45 and requests;
24-46 (5) the name, address, and qualification of the
24-47 proposed temporary guardian;
24-48 (6) the name, address, and interest of the applicant;
24-49 (7) the social security numbers of the applicant and
24-50 proposed ward; and
24-51 (8) if applicable, that the proposed temporary
24-52 guardian is a private professional guardian who has complied with
24-53 the requirements of Section 697 of this code.
24-54 (i) If the court appoints a temporary guardian after the
24-55 hearing required by Subsection (f)(1) of this section, all court
24-56 costs, including attorney's fees, may be assessed as provided in
24-57 Section 665A, 665B, or 669 of this code.
24-58 (j) The court may not customarily or ordinarily appoint the
24-59 <Texas> Department of Protective and Regulatory <Human> Services as
24-60 a temporary guardian under this section. The appointment of the
24-61 department as a temporary guardian under this section should be
24-62 made only as a last resort.
24-63 (k) If an application for a temporary guardianship, for the
24-64 conversion of <or an application to convert> a temporary
24-65 guardianship to a permanent guardianship, or for a permanent
24-66 guardianship is challenged or contested, the court, on the court's
24-67 own motion or on the motion of any interested party, may appoint a
24-68 new temporary guardian without issuing additional citation if the
24-69 court finds that the appointment is necessary to protect the
24-70 proposed ward or the proposed ward's estate. A temporary guardian
25-1 appointed under this subsection must qualify in the same form and
25-2 manner required of a guardian under this code. The term of the
25-3 temporary guardian expires at the conclusion of the hearing
25-4 challenging or contesting the application or on the date a
25-5 permanent guardian the court appoints for the proposed ward
25-6 qualifies to serve as the ward's guardian <shall appoint a
25-7 temporary guardian whose term expires at the conclusion of the
25-8 hearing or the period provided by Subsection (h) of this section,
25-9 whichever is later>.
25-10 SECTION 65. Section 881, Texas Probate Code, is amended by
25-11 adding Subsection (e) to read as follows:
25-12 (e) A resident guardian who has any of the estate of a ward
25-13 may be ordered by the court to deliver the estate to a duly
25-14 qualified and acting guardian of the ward.
25-15 SECTION 66. Subpart B, Part 5, Chapter XIII, Texas Probate
25-16 Code, is amended by adding Section 881A to read as follows:
25-17 Sec. 881A. NONRESIDENT GUARDIAN'S REMOVAL OF WARD'S PROPERTY
25-18 FROM STATE. A nonresident guardian, regardless of whether the
25-19 nonresident guardian is qualified under this code, may remove
25-20 personal property of the ward out of the state if:
25-21 (1) the removal does not conflict with the tenure of
25-22 the property or the terms and limitations of the guardianship under
25-23 which the property is held; and
25-24 (2) all debts known to exist against the estate in
25-25 this state are paid or secured by bond payable to and approved by
25-26 the judge of the court in which guardianship proceedings are
25-27 pending in this state.
25-28 SECTION 67. Subpart C, Part 5, Chapter XIII, Texas Probate
25-29 Code, is amended by adding Section 883A to read as follows:
25-30 Sec. 883A. RECOVERY OF CAPACITY. The special powers of
25-31 management, control, and disposition vested in the same spouse by
25-32 this code shall terminate when the decree of a court of competent
25-33 jurisdiction finds that the mental capacity of the other spouse has
25-34 been recovered.
25-35 SECTION 68. Section 889(a), Texas Probate Code, is amended
25-36 to read as follows:
25-37 (a) When the value of the minor's interest in real or
25-38 personal property in an estate does not exceed $25,000, a natural
25-39 or adoptive parent, or the managing conservator, of a minor who is
25-40 not a ward may apply to the court for an order to sell the real or
25-41 personal property of a minor in an estate without being appointed
25-42 guardian. A minor may not disaffirm a sale of property pursuant to
25-43 a court order under this section.
25-44 SECTION 69. Section 889(f), Texas Probate Code, is amended
25-45 to read as follows:
25-46 (f) Nothing in this section prevents the proceeds deposited
25-47 in the registry from being withdrawn from the court registry under
25-48 Section 887 <885> of this code.
25-49 SECTION 70. Section 19, Polygraph Examiners Act (Article
25-50 4413(29cc), Vernon's Texas Civil Statutes), is amended to read as
25-51 follows:
25-52 Sec. 19. Refusal, Probation, Reprimand, Suspension,
25-53 Revocation--Grounds. The board shall refuse to issue a license,
25-54 shall revoke or suspend a license, shall reprimand a licensee, or
25-55 may probate a license suspension on any one or more of the
25-56 following grounds:
25-57 (1) for failing to inform a subject to be examined as
25-58 to the nature of the examination;
25-59 (2) for failing to inform a subject to be examined
25-60 that his participation in the examination is voluntary;
25-61 (3) material misstatement in the application for
25-62 original license or in the application for any renewal license
25-63 under this Act;
25-64 (4) wilful disregard or violation of this Act or of
25-65 any regulation or rule issued pursuant thereto, including, but not
25-66 limited to, wilfully making a false report concerning an
25-67 examination for polygraph examination purposes;
25-68 (5) if the holder of any license has been adjudged
25-69 guilty of the commission of a felony or a misdemeanor involving
25-70 moral turpitude;
26-1 (6) making any wilful misrepresentation or false
26-2 promises or causing to be printed any false or misleading
26-3 advertisement for the purpose of directly or indirectly obtaining
26-4 business or trainees;
26-5 (7) having demonstrated unworthiness or incompetency
26-6 to act as a polygraph examiner as defined by this Act;
26-7 (8) allowing one's license under this Act to be used
26-8 by any unlicensed person in violation of the provisions of this
26-9 Act;
26-10 (9) wilfully aiding or abetting another in the
26-11 violation of this Act or any regulation or rule issued pursuant
26-12 thereto;
26-13 (10) where the license holder has been adjudged
26-14 incapacitated <as a habitual drunkard or mentally incompetent> as
26-15 provided in the Probate Code;
26-16 (11) failing, within a reasonable time, to provide
26-17 information requested by the secretary as the result of a formal
26-18 complaint to the board which would indicate a violation of this
26-19 Act;
26-20 (12) failing to inform the subject of the results of
26-21 the examination if so requested;
26-22 (13) violating Subsection (a) of Section 19A of this
26-23 Act relating to the confidentiality of information acquired from an
26-24 examination; or
26-25 (14) violating Section 51.151, Family Code, relating
26-26 to the examination of a child taken into custody.
26-27 SECTION 71. Section 5.08(j)(1), Medical Practice Act
26-28 (Article 4495b, Vernon's Texas Civil Statutes), is amended to read
26-29 as follows:
26-30 (j)(1) Consent for the release of confidential
26-31 information must be in writing and signed by the patient, or a
26-32 parent or legal guardian if the patient is a minor, or a legal
26-33 guardian if the patient has been adjudicated incapacitated
26-34 <incompetent> to manage his personal affairs, or an attorney ad
26-35 litem appointed for the patient, as authorized by Subtitle C, Title
26-36 7, Health and Safety Code <the Texas Mental Health Code (Article
26-37 5547-1 et seq., Vernon's Texas Civil Statutes)>; Subtitle D, Title
26-38 7, Health and Safety Code <the Mentally Retarded Persons Act of
26-39 1977 (Article 5547-300, Vernon's Texas Civil Statutes)>; <Section
26-40 9, Chapter 411, Acts of the 53rd Legislature, Regular Session, 1953
26-41 (Article 5561c, Vernon's Texas Civil Statutes); Section 2, Chapter
26-42 543, Acts of the 61st Legislature, Regular Session, 1969 (Article
26-43 5561c-1, Vernon's Texas Civil Statutes);> Chapter XIII <5>, Texas
26-44 Probate Code; and Chapter 11, Family Code; or a personal
26-45 representative if the patient is deceased, provided that the
26-46 written consent specifies the following:
26-47 (A) the information or medical records to be
26-48 covered by the release;
26-49 (B) the reasons or purposes for the release; and
26-50 (C) the person to whom the information is to be
26-51 released.
26-52 SECTION 72. Sections 25.0025(c), (d), and (e), Government
26-53 Code, are repealed.
26-54 SECTION 73. The following provisions of the Texas Probate
26-55 Code are repealed:
26-56 (1) Sections 3(n), 3(y), 110, 111, 112A, 118, 123A,
26-57 127A, 157, 159, 236, 236A, 688, and 688A; and
26-58 (2) Subpart G, Part 5, Chapter XIII.
26-59 SECTION 74. Section 646(e), Texas Probate Code, is repealed.
26-60 SECTION 75. Not later than September 1, 1996, a court that
26-61 has jurisdiction and venue over a guardianship proceeding in which
26-62 the application to create the guardianship was filed before
26-63 September 1, 1993, shall review the guardianship to determine
26-64 whether the guardianship should be continued, modified, or
26-65 terminated to conform with the requirements of Chapter XIII, Texas
26-66 Probate Code.
26-67 SECTION 76. This Act takes effect September 1, 1995, except
26-68 that Section 75 of this Act takes effect September 1, 1996.
26-69 SECTION 77. The changes in law made by this Act to Sections
26-70 636 and 665, Texas Probate Code, apply only to an application for
27-1 the appointment of a guardian that is filed on or after the
27-2 effective date of this Act. An application filed before the
27-3 effective date of this Act is governed by the law in effect on the
27-4 date the application was filed, and that law is continued in effect
27-5 for that purpose.
27-6 SECTION 78. The change in law made by this Act to Section
27-7 702, Texas Probate Code, applies only to a person appointed by a
27-8 court to serve as guardian on or after the effective date of this
27-9 Act. A person who is appointed by a court to serve as guardian
27-10 before the effective date of this Act is governed by the law in
27-11 effect immediately before the effective date of this Act, and that
27-12 law is continued in effect for that purpose.
27-13 SECTION 79. The importance of this legislation and the
27-14 crowded condition of the calendars in both houses create an
27-15 emergency and an imperative public necessity that the
27-16 constitutional rule requiring bills to be read on three several
27-17 days in each house be suspended, and this rule is hereby suspended.
27-18 * * * * *