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.