PMWJ C.S.H.B. 1314 75(R)BILL ANALYSIS


JUDICIAL AFFAIRS
H.B. 1314
By: Naishtat
C.S.H.B. 1314
By: Hartnett
4-16-97
Committee Report (Substituted)


BACKGROUND 

 The Texas Probate Code was amended in 1993 to allow probate courts to
create management trusts in limited circumstances.  The limits are that
there must be a guardianship of a ward's estate in existence, the ward
must be the sole beneficiary of the trust, and distributions must be only
used for the ward's (or his dependents') health, education, support or
maintenance to the extent allowed by law.  (The law requires a parent of a
minor, and in some instances of a disabled adult, to support the minor
disabled adult and to invest in the best interest of the
minor/incapacitated adult). 
 These corporate fiduciary managed trusts were most appropriate for
certain limited circumstances, such as when there were large sums of money
that would normally be turned over to the person reaching the age of
eighteen or when an incapacitated person other than a minor has such a
large sum of money that a corporate fiduciary's investment expertise would
be needed to manage these large estates. 
 Recent federal legislation has allowed assets of certain mentally
disabled persons, primarily those under age sixty five, to shelter assets
in a trust from Medicaid eligibility disqualification rules, when the
trust instrument provided (1) that the sheltered assets were only to be
used to supplement the needs of the disabled person beyond that provided
by the Medicaid program and (2) that any trust funds remaining upon the
death of the beneficiary be used to repay the Medicaid fund for any
payments made on behalf of the beneficiary during the time of "special
need."  If there were no funds remaining at the time of death, or there
were insufficient funds to repay Medicaid, then any Medicaid claim would
cease to exist.  
  Although all agree that "special needs trusts" are beneficial to the
disabled (and that failure to avail ourselves of this federal law results
in Texans getting less federal aid than the law allows), there has been
disagreement among probate practitioners whether the current management
trust language in Probate Code Section 867 allows such "special needs
trusts" to be created in Texas. Amending the current law would recognize
the authority to of our probate courts to create these types of trusts.  


PURPOSE

 The purpose of this bill is to allow probate courts the right to create
special needs trusts.  
 

RULEMAKING AUTHORITY

 It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency or
institution. 


SECTION BY SECTION ANALYSIS

 SECTION 1 amends Section 867, Texas Probate Code, to allow a ward's
attorney ad litem to apply to the court for the creation of a trust for
the management of guardianship funds for the ward's benefit.  

 SECTION 2 amends Section 868, Texas Probate Code.
  Subsec. (a) is amended to provide an exception as stated in new Subsec.
(d) from the provisions required in a Section 867 trust. 
 Subsec. (b) is amended (1) to authorize a trustee to make distributions
for the health, education, support or maintenance of the ward or a person
the ward is obligated to support, (2) to delete "for the health,
education, support, or maintenance of the ward" following "a person who
has physical custody of the ward," and (3) to add "a person providing a
good or service" to the category of persons to whom a trustee may make
distributions of trust funds for the health, education, support, or
maintenance of the ward without the intervention of a guardian or other
representative of the ward.   
 New Subsec. (d) provides that the provisions of a Section 867 trust,
including terms otherwise required by Section 868, can be modified if the
court determines that the modifications are necessary for the ward to
receive public benefits under a state or federal program and the
modifications are in the ward's best interests. 
 New Subsec. (e) authorizes the court to include additional provisions in
a trust created or modified under this section if the provisions do not
conflict with Subsecs. (a) or (d). 

 SECTION 3 adds Sections 868A, 869B, and 869C to the Texas Probate Code.  
 Section 868A allows a court to discharge a ward's guardian of the estate
while continuing a trust created under Section 867, if the guardian of the
person remains and the court determines the discharge is in the ward's
best interest.   
 Section 869B makes a Section 867 trust subject to the Subtitle B, Title 9
of the Property Code and provides for resolving conflicts between statutes
or a statute and the trust.  
 Section 869C gives the court that creates a Section 867 trust the
jurisdiction to hear matters relating to the trust. 

 SECTION 4 amends Section 870(b), Texas Probate Code, to provide that the
trust, if created for an incapacitated person other than a minor, will
terminate when the court determines that continuing the trust is not in
the ward's best interest, instead of upon the date that the court
determines that the guardianship is no longer necessary for the ward. 

 SECTION 5 amends Section 115.001(d), Texas Property Code.  Current Sec.
115.001(d) provides that a district court's jurisdiction over trusts is
exclusive except for jurisdiction conferred by law on a statutory probate
court; new language adds "or a court that creates a Section 867 trust."  

 SECTION 6 repeals Section 868(c), Texas Probate Code.

 SECTION 7 validates otherwise valid Section 867 trusts created for
guardianships in existence before September 1, 1993, and authorizes the
creation of Section 867 trusts regardless of when the guardianship was
established. 

 SECTION 8.  Effective date.  Application of act.

 SECTION 9.  Emergency clause.


COMPARISON OF ORIGINAL TO SUBSTITUTE

 Section 1 in both the substitute and the original are the same.
 Probate Code Section 868(d), in Section 2 of the substitute, omitted
references to additions to the trust that were in the original bill.
Section 868(e) in Section 2 of the substitute was not in the original
bill. 
 Sections 3, 4, 5, and 6 are the same in both versions of the bill.
 Section 7 in the substitute was not in the original bill.
 Section 7 in the original bill becomes Section 8 in the substitute and
was modified significantly.  The original bill continued the old law in
effect for governing guardianships instituted prior to the effective date
and made this act prospective in application.  Section 8 in the substitute
applies this act to all trusts created under Section 867 regardless of the
date the trust was created. 
 Section 8 in the original bill becomes Section 9 in the substitute.