1-1                                   AN ACT

 1-2     relating to a trust created for the management of a ward's assets.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Section 867, Texas Probate Code, is amended to

 1-5     read as follows:

 1-6           Sec. 867.  CREATION OF MANAGEMENT TRUST.  On application by

 1-7     the guardian of a ward or by a ward's attorney ad litem at  any

 1-8     time after the date of the attorney's appointment under Section 646

 1-9     of this code, the court in which the guardianship proceeding is

1-10     pending may enter an order that creates for the ward's benefit a

1-11     trust for the management of guardianship funds if the court finds

1-12     that the creation of the trust is in the ward's best interests.

1-13     The order shall direct the guardian or another person to deliver

1-14     all or part of the assets of the guardianship to a trust company or

1-15     a state or national bank that has trust powers in this state.  The

1-16     order shall include terms, conditions, and limitations placed on

1-17     the trust.  The court shall maintain the trust under the same cause

1-18     number as the guardianship proceeding.

1-19           SECTION 2.  Section 868, Texas Probate Code, is amended by

1-20     amending Subsections (a) and (b) and adding Subsections (d) and (e)

1-21     to read as follows:

1-22           (a)  Except as provided by Subsection (d) of this section, a

1-23     [A] trust created under Section 867 of this code must provide that:

1-24                 (1)  the ward is the sole beneficiary of the trust;

 2-1                 (2)  the trustee may disburse an amount of the trust's

 2-2     principal or income as the trustee determines is necessary to

 2-3     expend for the health, education, support, or maintenance of the

 2-4     ward;

 2-5                 (3)  the income of the trust that the trustee does not

 2-6     disburse under Subdivision (2) of this subsection must be added to

 2-7     the principal of the trust;

 2-8                 (4)  the trustee serves without giving a bond; and

 2-9                 (5)  the trustee, on annual application to the court

2-10     and subject to the court's approval, is entitled to receive

2-11     reasonable compensation for services that the trustee provided to

2-12     the ward as the ward's trustee that is:

2-13                       (A)  to be paid from the trust's income,

2-14     principal, or both; and

2-15                       (B)  determined in the same manner as

2-16     compensation of a guardian of an estate under Section 665 of this

2-17     code.

2-18           (b)  The trust may provide that a trustee make a

2-19     distribution, payment, use, or application of trust funds for the

2-20     health, education, support, or maintenance of the ward or of

2-21     another person whom the ward is legally obligated to support, as

2-22     necessary and without the intervention of a guardian or other

2-23     representative of the ward, to:

2-24                 (1)  the ward's guardian; [or to]

2-25                 (2)  a person who has physical custody of the ward [for

2-26     the health, education, support, or maintenance of the ward] or [of]

2-27     another person whom the ward is legally obligated to support; or

 3-1                 (3)  a person providing a good or service to the ward

 3-2     or another person whom the ward is legally obligated to support.

 3-3           (d)  When creating or modifying a trust, the court may omit

 3-4     or modify terms required by Subsection (a)(1) or (2) of this

 3-5     section only if the court determines that the omission or

 3-6     modification:

 3-7                 (1)  is necessary and appropriate for the ward to be

 3-8     eligible to receive public benefits or assistance under a state or

 3-9     federal program that is not otherwise available to the ward; and

3-10                 (2)  is in the ward's best interests.

3-11           (e)  The court may include additional provisions in a trust

3-12     created or modified under this section if the court determines an

3-13     addition does not conflict with Subsection (a) and, if appropriate,

3-14     Subsection (d) of this section.

3-15           SECTION 3.  Subpart N, Part 4, Chapter XIII, Texas Probate

3-16     Code, is amended by adding Sections 868A, 869B, and 869C to read as

3-17     follows:

3-18           Sec. 868A.  DISCHARGE OF GUARDIAN OF ESTATE AND CONTINUATION

3-19     OF TRUST.  On or at any time after the creation of a trust under

3-20     this subpart, the court may discharge the guardian of the ward's

3-21     estate only if a guardian of the ward's person remains and the

3-22     court determines that the discharge is in the ward's best

3-23     interests.

3-24           Sec. 869B.  APPLICABILITY OF TEXAS TRUST CODE.  (a)  A trust

3-25     created under Section 867 of this code is subject to Subtitle B,

3-26     Title 9, Property Code.

3-27           (b)  To the extent of a conflict between Subtitle B, Title 9,

 4-1     Property Code, and a provision of this subpart or of the trust, the

 4-2     provision of the subpart or trust controls.

 4-3           Sec. 869C.  JURISDICTION OVER TRUST MATTERS.  A court that

 4-4     creates a trust under Section 867 of this code has the same

 4-5     jurisdiction to hear matters relating to the trust as the court has

 4-6     with respect to the guardianship and other matters covered by this

 4-7     chapter.

 4-8           SECTION 4.  Section 870(b), Texas Probate Code, is amended to

 4-9     read as follows:

4-10           (b)  If the ward is an incapacitated person other than a

4-11     minor, the trust terminates on the date the court determines that

4-12     continuing the trust [a guardianship] is no longer in the ward's

4-13     best  interests [necessary for the ward] or on the death of the

4-14     ward.

4-15           SECTION 5.  Section 115.001(d), Property Code, is amended to

4-16     read as follows:

4-17           (d)  The jurisdiction of the district court over proceedings

4-18     concerning trusts is exclusive except for jurisdiction conferred by

4-19     law on a statutory probate court or a court that creates a trust

4-20     under Section 867, Texas Probate Code.

4-21           SECTION 6.  Section 868(c), Texas Probate Code, is repealed.

4-22           SECTION 7.  (a)  A trust may be created under Section 867,

4-23     Texas Probate Code, as amended by this Act, regardless of the date

4-24     on which the guardianship was created.

4-25           (b)  A trust otherwise valid under Section 867, Texas Probate

4-26     Code, is not invalid solely because it was created for a

4-27     guardianship that was in existence before September 1, 1993, and

 5-1     those trusts are validated as of the date of the creation of the

 5-2     trust.

 5-3           SECTION 8.  This Act takes effect September 1, 1997, and

 5-4     applies to all trusts created under Section 867, Texas Probate

 5-5     Code, as amended by this Act, regardless of the date on which the

 5-6     trusts were created.

 5-7           SECTION 9.  The importance of this legislation and the

 5-8     crowded condition of the calendars in both houses create an

 5-9     emergency and an imperative public necessity that the

5-10     constitutional rule requiring bills to be read on three several

5-11     days in each house be suspended, and this rule is hereby suspended.

         _______________________________     _______________________________

             President of the Senate              Speaker of the House

               I certify that H.B. No. 1314 was passed by the House on May

         2, 1997, by a non-record vote.

                                             _______________________________

                                                 Chief Clerk of the House

               I certify that H.B. No. 1314 was passed by the Senate on May

         26, 1997, by the following vote:  Yeas 31, Nays 0.

                                             _______________________________

                                                 Secretary of the Senate

         APPROVED:  _____________________

                            Date

                    _____________________

                          Governor