By Cuellar H.B. No. 466
75R1709 CLG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the establishment and operation of a program to provide
1-3 guardianship services to certain incapacitated adults.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. The Human Resources Code is amended by adding
1-6 Title 11 to read as follows:
1-7 TITLE 11. PUBLIC GUARDIANS
1-8 CHAPTER 161. GUARDIANSHIP RESOURCES; COMMUNITY TRUST
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Sec. 161.001. DEFINITIONS. In this chapter:
1-11 (1) "Advisory board" means the guardianship resource
1-12 advisory board.
1-13 (2) "Center" means the nonprofit corporation
1-14 authorized by the Commissioner of Human Services to perform
1-15 functions as provided by this chapter.
1-16 (3) "Commissioner" means the Commissioner of Human
1-17 Services.
1-18 (4) "Community trust" means a pooled income trust in
1-19 which:
1-20 (A) a separate account is maintained for each
1-21 beneficiary of the trust but for purposes of investment and
1-22 management of funds, the trust pools those accounts;
1-23 (B) each account in the trust is established
1-24 solely for the benefit of an incapacitated individual; and
2-1 (C) to the extent that amounts remaining in the
2-2 beneficiary's account on the death of the beneficiary are not
2-3 retained by the trust, the trust pays to this state from those
2-4 remaining amounts an amount equal to the total amount of medical
2-5 assistance paid by this state on behalf of the beneficiary under
2-6 the federal Medicaid program.
2-7 (5) "Department" means the Texas Department of Human
2-8 Services.
2-9 (6) "Director" means a member of the board of
2-10 directors of the center.
2-11 (7) "Estate" has the meaning assigned by Section 601,
2-12 Texas Probate Code.
2-13 (8) "Guardian" has the meaning assigned by Section
2-14 601, Texas Probate Code.
2-15 (9) "Guardianship program" has the meaning assigned by
2-16 Section 601, Texas Probate Code.
2-17 (10) "Incapacitated individual" means an adult who,
2-18 because of a physical or mental condition, is substantially unable
2-19 to:
2-20 (A) provide the individual's own food, clothing,
2-21 or shelter;
2-22 (B) care for the individual's own physical
2-23 health; or
2-24 (C) manage the individual's own financial
2-25 affairs.
2-26 (11) "Presiding judge" means the presiding judge of
2-27 the statutory probate courts elected as provided by Chapter 25,
3-1 Government Code.
3-2 (12) "Private professional guardian" means a person
3-3 engaged in the business of providing guardianship services.
3-4 (13) "Statutory probate court" has the meaning
3-5 assigned by Section 601, Texas Probate Code.
3-6 (Sections 161.002-161.020 reserved for expansion
3-7 SUBCHAPTER B. DESIGNATION OF GUARDIANSHIP SERVICES CENTER
3-8 Sec. 161.021. DESIGNATION BY COMMISSIONER. The commissioner
3-9 shall designate a nonprofit organization to serve as the center for
3-10 guardianship services provided under this chapter.
3-11 Sec. 161.022. APPLICATION. A nonprofit organization may
3-12 submit to the commissioner an application for designation to serve
3-13 as the center. The nonprofit organization shall comply with any
3-14 requirements adopted by the commissioner for the submission of the
3-15 application.
3-16 Sec. 161.023. RULES. (a) The commissioner shall adopt
3-17 rules necessary to provide:
3-18 (1) fairness in the selection of a nonprofit
3-19 organization to serve as the center; and
3-20 (2) adequate supervision of the activities of the
3-21 center.
3-22 (b) The center shall observe the rules adopted by the
3-23 commissioner.
3-24 Sec. 161.024. GUARDIANSHIP RESOURCE ADVISORY BOARD. (a)
3-25 The guardianship resource advisory board is composed of the
3-26 presiding judge and two additional statutory probate court judges
3-27 appointed to the advisory board by the presiding judge.
4-1 (b) The advisory board shall advise the commissioner and the
4-2 board of directors of the center regarding any matter related to
4-3 services provided under this chapter.
4-4 (c) A member of the advisory board serves at the pleasure of
4-5 the presiding judge. A member is not entitled to additional
4-6 compensation for service as a member of the advisory board.
4-7 (d) The presiding judge may adopt rules as necessary for
4-8 operation of the advisory board.
4-9 (e) The advisory board is not subject to Article 6252-33,
4-10 Revised Statutes.
4-11 (Sections 161.025-161.040 reserved for expansion
4-12 SUBCHAPTER C. CENTER POWERS AND DUTIES
4-13 Sec. 161.041. GENERAL POWERS AND DUTIES OF CENTER. With the
4-14 advice of the guardianship resource advisory board, the center
4-15 shall:
4-16 (1) develop and operate a community trust as provided
4-17 by Subchapter D of this chapter;
4-18 (2) develop a comprehensive plan to ensure that each
4-19 incapacitated individual in this state who needs a guardianship or
4-20 another less restrictive type of assistance to make decisions
4-21 concerning the incapacitated individual's own welfare or financial
4-22 affairs receives that assistance;
4-23 (3) consult and cooperate with the governing body of a
4-24 municipality, county, or nonprofit organization concerning the
4-25 development of or support for a guardianship program;
4-26 (4) provide to a guardian, a proposed guardian, or a
4-27 member of a guardianship program training and technical assistance
5-1 regarding guardianship and alternatives to guardianship to
5-2 represent the interests of an incapacitated individual; and
5-3 (5) provide information regarding, referral services
5-4 for, and matching or other funding as available for guardianship
5-5 and related services.
5-6 Sec. 161.042. STANDARDS. (a) The center shall adopt
5-7 minimum standards for the provision of guardianship and related
5-8 services by:
5-9 (1) a guardianship program;
5-10 (2) a person who provides guardianship and related
5-11 services on behalf of a guardianship program, including a person
5-12 who serves as a volunteer guardian; and
5-13 (3) a person who serves as a private professional
5-14 guardian.
5-15 (b) The center shall design the standards to protect the
5-16 interests of an incapacitated individual or other individual who
5-17 needs assistance making decisions concerning the individual's own
5-18 welfare or financial affairs.
5-19 Sec. 161.043. CONTRACTS FOR GUARDIANSHIP ASSISTANCE. The
5-20 center may contract with another person to:
5-21 (1) file an application under Chapter XIII, Texas
5-22 Probate Code, for appointment as a guardian of the estate or person
5-23 of an incapacitated individual if there is no person willing or
5-24 eligible to file an application to be appointed guardian of that
5-25 incapacitated individual; or
5-26 (2) provide assistance to an individual who needs
5-27 assistance other than a guardianship to make a decision concerning
6-1 the individual's own welfare or financial affairs.
6-2 (Sections 161.044-161.060 reserved for expansion
6-3 SUBCHAPTER D. ADMINISTRATION AND FUNDING OF COMMUNITY TRUST
6-4 Sec. 161.061. ESTABLISHMENT OF COMMUNITY TRUST. The center
6-5 shall establish and operate a community trust.
6-6 Sec. 161.062. TRUST POWERS. The center may exercise all
6-7 powers authorized by law to be executed by a trustee as regards the
6-8 community trust.
6-9 Sec. 161.063. SECONDARY BENEFICIARY. The community trust
6-10 shall provide that the center is a secondary beneficiary of each
6-11 trust account.
6-12 Sec. 161.064. GUARDIANSHIP RESOURCE ACCOUNT. (a) The
6-13 guardianship resource account is created as a special account in
6-14 the general revenue fund to be used only for purposes consistent
6-15 with this chapter.
6-16 (b) The comptroller shall adopt rules to provide for the
6-17 payment to the guardianship resource account of all funds collected
6-18 for the department as provided by this chapter and Chapter X, Texas
6-19 Probate Code.
6-20 Sec. 161.065. DONATIONS. The center may accept and solicit
6-21 gifts or grants of property from public or private sources for the
6-22 purposes of this chapter. Funds received under this section shall
6-23 be deposited in the guardianship resource account.
6-24 Sec. 161.066. DEPOSIT OF FUNDS. The comptroller shall
6-25 deposit in the guardianship resource account all funds collected as
6-26 provided by this chapter.
6-27 (Sections 161.067-161.080 reserved for expansion
7-1 SUBCHAPTER E. GENERAL ADMINISTRATION OF CENTER
7-2 Sec. 161.081. BOARD OF DIRECTORS. (a) The members of the
7-3 board of directors of the nonprofit organization serving as the
7-4 center must include:
7-5 (1) one or more individuals with demonstrated
7-6 experience in working with a guardianship program;
7-7 (2) one or more individuals with demonstrated
7-8 experience in working with an organization that advocates on behalf
7-9 of or in the interest of elderly individuals or individuals with
7-10 mental illness or mental retardation; and
7-11 (3) one or more individuals with experience working
7-12 with incapacitated individuals.
7-13 (b) The commissioner may adopt rules as necessary regarding
7-14 the qualifications of the directors required by this section.
7-15 Sec. 161.082. MEETINGS. (a) The board of directors of the
7-16 center shall meet quarterly and may also meet as provided by the
7-17 bylaws of the center.
7-18 (b) The directors shall develop and implement policies that
7-19 provide the public an opportunity to appear before the board of
7-20 directors and to speak regarding any issue under the jurisdiction
7-21 of the directors.
7-22 Sec. 161.083. RESTRICTIONS ON MEMBERSHIP AND EMPLOYMENT.
7-23 (a) An officer, employee, or paid consultant of an association the
7-24 primary purpose of which is the provision of guardianship services
7-25 may not be a director or an employee of the center. A person who
7-26 cohabits with or is the spouse of an officer, employee, or paid
7-27 consultant of an association the primary purpose of which is the
8-1 provision of guardianship services may not be a director or an
8-2 employee of the center.
8-3 (b) A person required to register as a lobbyist under
8-4 Chapter 305, Government Code, may not serve as a director or an
8-5 employee of the center.
8-6 Sec. 161.084. BIENNIAL REPORT. The center shall submit a
8-7 report to the legislature not later than November 1 of each
8-8 even-numbered year. The center shall include in the report
8-9 recommendations to improve guardianship services and related
8-10 services provided to an incapacitated individual by a guardianship
8-11 program, the community trust, or a person contracting with the
8-12 center.
8-13 Sec. 161.085. BUDGET. The center shall prepare and submit a
8-14 biennial budget to the commissioner.
8-15 Sec. 161.086. AUDITS. (a) Not later than April 1 of each
8-16 year, the center shall deliver complete financial statements of the
8-17 center, audited by an independent certified public accountant, to:
8-18 (1) the governor;
8-19 (2) the presiding officer of each house of the
8-20 legislature;
8-21 (3) the commissioner; and
8-22 (4) the presiding judge.
8-23 (b) The commissioner may request the state auditor to audit
8-24 any financial transaction of the center or a trust account managed
8-25 by the center.
8-26 (c) The financial transactions of the center are subject to
8-27 audit by the state auditor as provided by Chapter 321, Government
9-1 Code.
9-2 SECTION 2. Chapter X, Texas Probate Code, is amended to read
9-3 as follows:
9-4 CHAPTER X. PAYMENT OF ESTATES TO GUARDIANSHIP
9-5 RESOURCE ACCOUNT [INTO STATE TREASURY]
9-6 Sec. 427. WHEN ESTATES TO BE PAID TO GUARDIANSHIP RESOURCE
9-7 ACCOUNT [INTO STATE TREASURY]. (a) If any person entitled to a
9-8 portion of an estate, except a resident minor without a guardian,
9-9 shall not demand his portion from the executor or administrator
9-10 within six months after an order of court approving the report of
9-11 commissioners of partition, or within six months after the
9-12 settlement of the final account of an executor or administrator, as
9-13 the case may be, the court by written order shall require the
9-14 executor or administrator to pay so much of said portion as is in
9-15 money to the comptroller [State Treasurer]; and such portion as is
9-16 in other property he shall order the executor or administrator to
9-17 sell on such terms as the court thinks best, and, when the proceeds
9-18 of such sale are collected, the court shall order the same to be
9-19 paid to the comptroller [State Treasurer], in all such cases
9-20 allowing the executor or administrator reasonable compensation for
9-21 his services. A suit to recover proceeds of the sale is governed by
9-22 Section 433 of this Code.
9-23 (b) The comptroller shall deposit funds received under this
9-24 section to the credit of the guardianship resource account
9-25 established under Subchapter D, Chapter 161, Human Resources Code.
9-26 Sec. 428. INDISPENSABILITY OF THE TEXAS DEPARTMENT OF HUMAN
9-27 SERVICES [STATE TREASURER] AS PARTY. The Texas Department of Human
10-1 Services [State Treasurer] is an indispensable party to any
10-2 judicial or administrative proceeding concerning the disposition
10-3 and handling of any portion of an estate that is or may be payable
10-4 to the comptroller [State Treasurer] under Section 427 of this
10-5 Code. Whenever an order shall be made by the court for an executor
10-6 or administrator to pay any funds to the comptroller [State
10-7 Treasurer] under Section 427 of this Code, the clerk of the court
10-8 in which such order is made shall serve on the Commissioner of
10-9 Human Services [State Treasurer] by personal service of citation a
10-10 certified copy of such order within five days after the same has
10-11 been made.
10-12 Sec. 429. PENALTY FOR NEGLECT TO NOTIFY THE TEXAS DEPARTMENT
10-13 OF HUMAN SERVICES [STATE TREASURER]. Any clerk who shall neglect
10-14 to have served on the Commissioner of Human Services [State
10-15 Treasurer] by personal citation a certified copy of any such order
10-16 within the time prescribed by Section 428 of this Code shall be
10-17 liable in a penalty of One Hundred Dollars, to be recovered in an
10-18 action in the name of the state, after personal service of
10-19 citation, on the information of any citizen, one-half of which
10-20 penalty shall be paid to the informer and the other one-half to the
10-21 state.
10-22 Sec. 430. RECEIPT [OF STATE TREASURER]. Whenever an
10-23 executor or administrator pays the comptroller [State Treasurer]
10-24 any funds of the estate he represents, under the preceding
10-25 provisions of this Code, he shall take from the comptroller [State
10-26 Treasurer] a receipt for such payment, with official seal attached,
10-27 and shall file the same with the clerk of the court ordering such
11-1 payment; and such receipt shall be recorded in the minutes of the
11-2 court.
11-3 Sec. 431. PENALTY FOR FAILURE TO MAKE PAYMENTS [TO STATE
11-4 TREASURER]. When an executor or administrator fails to pay to the
11-5 comptroller [State Treasurer] any funds of an estate which he has
11-6 been ordered by the court so to pay, within 30 days after such
11-7 order has been made, such executor or administrator shall, after
11-8 personal service of citation charging such failure and after proof
11-9 thereof, be liable to pay out of his own estate to the comptroller
11-10 [State Treasurer] damages thereon at the rate of five per cent per
11-11 month for each month, or fraction thereof, that he fails to make
11-12 such payment after 30 days from such order, which damages may be
11-13 recovered in any court of competent jurisdiction.
11-14 Sec. 432. TEXAS DEPARTMENT OF HUMAN SERVICES [STATE
11-15 TREASURER] MAY ENFORCE PAYMENT AND COLLECT DAMAGES. The Texas
11-16 Department of Human Services [State Treasurer] shall have the right
11-17 in the name of the state to apply to the court in which the order
11-18 for payment was made to enforce the payment of funds which the
11-19 executor or administrator has failed to pay to the comptroller
11-20 [him] pursuant to order of court, together with the payment of any
11-21 damages that shall have accrued under the provisions of the
11-22 preceding Section of this Code, and the court shall enforce such
11-23 payment in like manner as other orders of payment are required to
11-24 be enforced. The Texas Department of Human Services [State
11-25 Treasurer] shall also have the right to institute suit in the name
11-26 of the state against such executor or administrator, and the
11-27 sureties on his bond, for the recovery of the funds so ordered to
12-1 be paid and such damages as have accrued. An attorney retained by
12-2 the Texas Department of Human Services, an attorney retained by an
12-3 agent of the Texas Department of Human Services, the [The] county
12-4 attorney or criminal district attorney of the county, the district
12-5 attorney of the district, or the attorney general, at the election
12-6 of the Texas Department of Human Services [State Treasurer] and
12-7 with the approval of the attorney general, shall represent the
12-8 Texas Department of Human Services [State Treasurer] in all such
12-9 proceedings[, and shall also represent the interests of the state
12-10 in all other matters arising under any provisions of this Code].
12-11 Sec. 433. SUIT FOR THE RECOVERY OF FUNDS PAID TO THE
12-12 COMPTROLLER [STATE TREASURER]. (a) Mode of Recovery. When funds
12-13 of an estate have been paid to the comptroller under this chapter
12-14 [State Treasurer], any heir, devisee, or legatee of the estate, or
12-15 their assigns, or any of them, may recover the portion of such
12-16 funds to which he, she, or they are entitled. The person claiming
12-17 such funds shall institute suit on or before the fourth anniversary
12-18 of the date of the order requiring payment to the comptroller
12-19 [State Treasurer], by petition filed in the district court of
12-20 Travis County, against the comptroller [State Treasurer], setting
12-21 forth the plaintiff's right to such funds, and the amount claimed
12-22 by him.
12-23 (b) Citation. Upon the filing of such petition, the clerk
12-24 shall issue a citation for the comptroller [State Treasurer], to be
12-25 served by personal service, to appear and represent the interest of
12-26 the state in such suit. As the comptroller [State Treasurer]
12-27 elects and with the approval of the attorney general, the attorney
13-1 general, the county attorney or criminal district attorney for the
13-2 county, or the district attorney for the district shall represent
13-3 the comptroller [State Treasurer].
13-4 (c) Procedure. The proceedings in such suit shall be
13-5 governed by the rules for other civil suits; and, should the
13-6 plaintiff establish his right to the funds claimed, he shall have a
13-7 judgment therefor, which shall specify the amount to which he is
13-8 entitled; and a certified copy of such judgment shall be sufficient
13-9 authority for the comptroller [State Treasurer] to pay the same.
13-10 (d) Costs. The costs of any such suit shall in all cases be
13-11 adjudged against the plaintiff, and he may be required to secure
13-12 the costs.
13-13 SECTION 3. Part 4, Chapter XIII, Texas Probate Code, is
13-14 amended by adding Subpart O to read as follows:
13-15 SUBPART O. COMMUNITY TRUST
13-16 Sec. 874. COMMUNITY TRUST. The court in which the
13-17 guardianship proceeding is pending may enter an order that directs
13-18 the guardian to deliver all or part of the assets of the
13-19 guardianship to the community trust created under Chapter 161,
13-20 Human Resources Code.
13-21 SECTION 4. (a) Except as provided by Subsections (b) and
13-22 (c) of this section, this Act takes effect September 1, 1997.
13-23 (b) The Commissioner of Human Services shall adopt rules as
13-24 necessary to implement the programs established under Chapter 161,
13-25 Human Resources Code, as added by this Act, not later than November
13-26 30, 1997. The guardianship services center and community trust
13-27 established under Chapter 161, Human Resources Code, as added by
14-1 this Act, shall begin providing services as provided by that
14-2 chapter not later than January 1, 1998.
14-3 (c) Sections 2 and 3 of this Act take effect November 30,
14-4 1997.
14-5 SECTION 5. The importance of this legislation and the
14-6 crowded condition of the calendars in both houses create an
14-7 emergency and an imperative public necessity that the
14-8 constitutional rule requiring bills to be read on three several
14-9 days in each house be suspended, and this rule is hereby suspended.