By Naishtat                                     H.B. No. 1314

      75R1467 CLG-D                           

                                A BILL TO BE ENTITLED

 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 Subsection (d) to read

1-21     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 a trust, the court may omit or modify

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

 3-5     include additional provisions to the trust only if the court

 3-6     determines that the omission, modification, or addition:

 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 are not otherwise available to the ward; and

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

3-11           SECTION 3.  Subpart N, Part 4, Chapter XIII, Texas Probate

3-12     Code, is amended by adding Sections 868A, 869B, and 869C to read as

3-13     follows:

3-14           Sec. 868A.  DISCHARGE OF GUARDIAN OF ESTATE AND CONTINUATION

3-15     OF TRUST.   On or at any time after the creation of a trust under

3-16     this subchapter, the court may discharge the guardian of the ward's

3-17     estate only if a guardian of the ward's person remains and the

3-18     court determines that the discharge is in the ward's best

3-19     interests.

3-20           Sec. 869B.  APPLICABILITY OF TEXAS TRUST CODE.  (a)  A trust

3-21     created under Section 867 of this code is subject to Subtitle B,

3-22     Title 9, Property Code.

3-23           (b)  To the extent of a conflict between Subtitle B, Title 9,

3-24     Property Code, and a provision of this subpart or of the trust, the

3-25     provision of the subpart or trust controls.

3-26           Sec. 869C.  JURISDICTION OVER TRUST MATTERS.   A court that

3-27     creates a trust under Section 867 of this code has the same

 4-1     jurisdiction to hear matters relating to the trust as the court has

 4-2     with respect to the guardianship and other matters covered by this

 4-3     chapter.

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

 4-5     read as follows:

 4-6           (b)  If the ward is an incapacitated person other than a

 4-7     minor, the trust terminates on the date the court determines that

 4-8     continuing the trust [a guardianship] is no longer in the ward's

 4-9     best  interests [necessary for the ward] or on the death of the

4-10     ward.

4-11           SECTION 5.  Section 115.001(d), Property Code, is amended to

4-12     read as follows:

4-13           (d)  The jurisdiction of the district court over proceedings

4-14     concerning trusts is exclusive except for jurisdiction conferred by

4-15     law on a statutory probate court or a court that creates a trust

4-16     under Section 867, Texas Probate Code.

4-17           SECTION 6.  Section 868(c), Texas Probate Code, is repealed.

4-18           SECTION 7.  This Act takes effect September 1, 1997, and

4-19     applies only to a guardianship proceeding that is instituted on or

4-20     after that date.  A guardianship proceeding that is instituted

4-21     before the effective date of this Act is governed by the law in

4-22     effect on the date on which the proceeding was instituted, and the

4-23     former law is continued in effect for that purpose.

4-24           SECTION 8.  The importance of this legislation and the

4-25     crowded condition of the calendars in both houses create an

4-26     emergency and an imperative public necessity that the

4-27     constitutional rule requiring bills to be read on three several

 5-1     days in each house be suspended, and this rule is hereby suspended.