By Thompson H.B. No. 2004
75R4721 CLG-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the procedures for and administration of guardianships.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 609(c), Texas Probate Code, is amended to
1-5 read as follows:
1-6 (c) The court to which a transfer is made under this section
1-7 shall apply the procedural and substantive provisions of the Family
1-8 Code, including Sections 155.005 and 155.205 [Section 11.05(h), and
1-9 its subsequent amendments], in regard to enforcing an order
1-10 rendered by the court from which the proceeding was transferred.
1-11 SECTION 2. Sections 633(d) and (f), Texas Probate Code, are
1-12 amended to read as follows:
1-13 (d) The court clerk, at the applicant's request, or the
1-14 applicant shall mail a copy of the notice by registered or
1-15 certified mail, return receipt requested, to the following persons
1-16 if their whereabouts are known or can be reasonably ascertained:
1-17 (1) all adult siblings and all adult children of a
1-18 proposed ward;
1-19 (2) the administrator of a nursing home facility or
1-20 similar facility in which the proposed ward resides;
1-21 (3) the operator of a residential facility in which
1-22 the proposed ward resides; [and]
1-23 (4) a person whom the applicant knows to hold a power
1-24 of attorney signed by the proposed ward;
2-1 (5) a person designated to serve as guardian of the
2-2 proposed ward by a written declaration under Section 679 of this
2-3 code, if the applicant knows of the existence of the declaration;
2-4 (6) a person designated to serve as guardian of the
2-5 proposed ward in the probated will of the last surviving parent of
2-6 the ward; and
2-7 (7) a person designated to serve as guardian of the
2-8 proposed ward by a written declaration of the proposed ward's last
2-9 surviving parent, if the declarant is deceased and the applicant
2-10 knows of the existence of the declaration.
2-11 (f) The court may not act on an application for the creation
2-12 of a guardianship until the Monday following the expiration of the
2-13 10-day period beginning the date service of notice and citation has
2-14 been made as provided by Subsections (b), (c), and (d)(1) of this
2-15 section. The validity of a guardianship created under this chapter
2-16 is not affected by the failure of the clerk or applicant to comply
2-17 with the requirements of Subsections (d)(2)-(7) [(d)(2)-(4)] of
2-18 this section.
2-19 SECTION 3. Section 677A(a), Texas Probate Code, is amended
2-20 to read as follows:
2-21 (a) A written declaration appointing an eligible person to
2-22 be guardian of the person of the parent's child under Section
2-23 [676(d) or] 677(b) of this code must be attested to by at least two
2-24 credible witnesses 14 years of age or older who are not named as
2-25 guardian or alternate guardian in the declaration.
2-26 SECTION 4. Section 682, Texas Probate Code, is amended to
2-27 read as follows:
3-1 Sec. 682. APPLICATION; CONTENTS. Any person may commence a
3-2 proceeding for the appointment of a guardian by filing a written
3-3 application in a court having jurisdiction and venue. The
3-4 application must be sworn to by the applicant and state:
3-5 (1) the name, sex, date of birth, and address of the
3-6 proposed ward;
3-7 (2) the name, relationship, and address of the person
3-8 the applicant desires to have appointed as guardian;
3-9 (3) [the social security number of the proposed ward
3-10 and of the person the applicant desires to have appointed as
3-11 guardian;]
3-12 [(4)] whether guardianship of the person or estate, or
3-13 both, is sought;
3-14 (4) [(5)] the nature and degree of the alleged
3-15 incapacity, the specific areas of protection and assistance
3-16 requested, and the limitation of rights requested to be included in
3-17 the court's order of appointment;
3-18 (5) [(6)] the facts requiring that a guardian be
3-19 appointed and the interest of the applicant in the appointment;
3-20 (6) [(7)] the nature and description of any
3-21 guardianship of any kind existing for the proposed ward in this or
3-22 any other state;
3-23 (7) [(8)] the name and address of any person or
3-24 institution having the care and custody of the proposed ward;
3-25 (8) [(9)] the approximate value and description of the
3-26 proposed ward's property, including any compensation, pension,
3-27 insurance, or allowance to which the proposed ward may be entitled;
4-1 (9) [(10)] the requested term, if known, of the
4-2 guardianship;
4-3 (10) [(11)] the name and address of any person whom
4-4 the applicant knows to hold a power of attorney signed by the
4-5 proposed ward and a description of the type of power of attorney;
4-6 (11) [(12)] if the proposed ward is a minor, the names
4-7 of the parents and next of kin of the proposed ward and whether
4-8 either or both of the parents are deceased;
4-9 (12) [(13)] if the proposed ward is a minor, whether
4-10 the minor was the subject of a legal or conservatorship proceeding
4-11 within the preceding two-year period and, if so, the court
4-12 involved, the nature of the proceeding, and the final disposition,
4-13 if any, of the proceeding;
4-14 (13) [(14)] if the proposed ward is 60 years of age or
4-15 older, the names and addresses, to the best of the applicant's
4-16 knowledge, of the proposed ward's spouse, siblings, and children,
4-17 or, if there is no spouse, sibling, or child, the names and
4-18 addresses of the proposed ward's next of kin;
4-19 (14) [(15)] if the proposed ward is a missing person:
4-20 (A) the last known residence of the missing
4-21 person;
4-22 (B) the name of the executive department of the
4-23 United States reporting the proposed ward as a missing person, the
4-24 date of the report, and the last known whereabouts of the missing
4-25 person; and
4-26 (C) the names and addresses of the missing
4-27 person's spouse, children, and parents, or, if there is no spouse,
5-1 child, or parent, the names and addresses of the missing person's
5-2 next of kin;
5-3 (15) [(16)] facts showing that the court has venue
5-4 over the proceeding; and
5-5 (16) [(17)] if applicable, that the person whom the
5-6 applicant desires to have appointed as a guardian is a private
5-7 professional guardian who has complied with the requirements of
5-8 Section 697 of this code.
5-9 SECTION 5. Section 774(a), Texas Probate Code, is amended to
5-10 read as follows:
5-11 (a) On application, and if authorized by an order, the
5-12 guardian of the estate may renew or extend any obligation owed by
5-13 or to the ward. On written application to the court and when a
5-14 guardian of the estate deems it is in the best interest of the
5-15 estate, the guardian may, if authorized by an order of the court:
5-16 (1) purchase or exchange property;
5-17 (2) take a claim or property for the use and benefit
5-18 of the estate in payment of a debt due or owing to the estate;
5-19 (3) compound a bad or doubtful debt due or owing to
5-20 the estate;
5-21 (4) make a compromise or a settlement in relation to
5-22 property or a claim in dispute or litigation; [and]
5-23 (5) compromise or pay in full any secured claim that
5-24 has been allowed and approved as required by law against the estate
5-25 by conveying to the holder of the secured claim the real estate or
5-26 personalty securing the claim, in full payment, liquidation, and
5-27 satisfaction of the claim, and in consideration of cancellation of
6-1 a note, deed of trust, mortgage, chattel mortgage, or other
6-2 evidence of a lien that secures the payment of the claim; and
6-3 (6) abandon worthless or burdensome property and the
6-4 administration of that property.
6-5 SECTION 6. Section 776, Texas Probate Code, is amended to
6-6 read as follows:
6-7 Sec. 776. SUMS ALLOWABLE FOR EDUCATION AND MAINTENANCE OF
6-8 WARD AND THE WARD'S SPOUSE OR DEPENDENT. (a) Subject to Section
6-9 777 of this code, the court may direct the guardian of the person
6-10 to expend, for the education and maintenance of the [guardian's]
6-11 ward or the ward's spouse or dependent, a sum in excess of the
6-12 income of the ward's estate. Otherwise, the guardian may not be
6-13 allowed, for the education and maintenance of the ward or the
6-14 ward's spouse or dependent, more than the net income of the estate.
6-15 When different persons have the guardianship of the person and
6-16 estate of a ward, the guardian of the estate shall pay to the
6-17 guardian of the person a sum that is set by the court, at a time
6-18 specified by the court, for the education and maintenance of the
6-19 ward or the ward's spouse or dependent. If the guardian of the
6-20 estate fails to pay to the guardian of the person the sum set by
6-21 the court, the guardian of the estate shall be compelled to make
6-22 the payment by court order after the guardian is duly cited to
6-23 appear.
6-24 (b) When a guardian has in good faith expended funds from
6-25 the corpus of the estate of the ward [of the guardian] for support
6-26 and maintenance of [for] the ward or the ward's spouse or dependent
6-27 under this section or Section 777 of this code, and when it is not
7-1 convenient or possible for the guardian to first secure court
7-2 approval, if the proof is clear and convincing that the
7-3 expenditures were reasonable and proper, and are expenditures that
7-4 the court would have granted authority to make [the expenditures]
7-5 out of the corpus, and the ward or the ward's spouse or dependent
7-6 received the benefits of the expenditures, the court may approve
7-7 the expenditures in the same manner as if the expenditures were
7-8 made by the guardian out of the income of [from] the ward's estate.
7-9 An expenditure under this subsection may not exceed $5,000 per ward
7-10 during an annual accounting period, unless the expenditure is made
7-11 to a nursing home in which case the court may ratify any amount.
7-12 SECTION 7. Section 783(a), Texas Probate Code, is amended to
7-13 read as follows:
7-14 (a) Within one month after receiving letters, personal
7-15 representatives of estates shall send to the comptroller of public
7-16 accounts by certified or registered mail if the ward [decedent]
7-17 remitted or should have remitted taxes administered by the
7-18 comptroller of public accounts and publish in some newspaper,
7-19 printed in the county where the letters were issued, if there be
7-20 one, a notice requiring all persons having a claim against the
7-21 estate being administered to present the claim within the time
7-22 prescribed by law. The notice must include the time of issuance of
7-23 letters held by the representative, the address to which a claim
7-24 may be presented, and an instruction of the representative's choice
7-25 that a claim be addressed in care of the representative, in care of
7-26 the representative's attorney, or in care of "Representative,
7-27 Estate of __________" (naming the estate).
8-1 SECTION 8. Section 865(a), Texas Probate Code, is amended to
8-2 read as follows:
8-3 (a) On application of the guardian of the estate or any
8-4 interested party and after notice to all interested persons and to
8-5 other persons as directed by the court, the court, after hearing,
8-6 may enter an order that authorizes the guardian to apply the
8-7 principal or income of the ward's estate that is not required for
8-8 the support of the ward or the ward's family during the ward's
8-9 lifetime toward the establishment of an estate plan for the purpose
8-10 of minimizing income, estate, inheritance, or other taxes payable
8-11 out of the ward's estate on a showing that the ward will probably
8-12 remain incapacitated during the ward's lifetime. On the ward's
8-13 behalf, the court may authorize the guardian to make gifts,
8-14 outright or in trust, of the ward's personal property or real
8-15 estate to or for the benefit of:
8-16 (1) an organization to which charitable contributions
8-17 may be made under the Internal Revenue Code and in which it is
8-18 shown the ward would reasonably have an interest;
8-19 (2) the ward's spouse, descendant, or other person
8-20 related to the ward by blood or marriage [heirs at law] who are
8-21 identifiable at the time of the order;
8-22 (3) a devisee under the ward's last validly executed
8-23 will, if there is a will; and
8-24 (4) a person serving as guardian of the ward if the
8-25 person is eligible under either Subdivision (2) or (3) of this
8-26 subsection.
8-27 SECTION 9. Section 867, Texas Probate Code, is amended to
9-1 read as follows:
9-2 Sec. 867. CREATION OF MANAGEMENT TRUST. On application by
9-3 the guardian of a ward, the attorney ad litem, guardian ad litem,
9-4 or a person interested in the welfare of a ward, the court in which
9-5 the guardianship proceeding is pending may enter an order that
9-6 creates for the ward's benefit a trust for the management of
9-7 guardianship funds if the court finds that the creation of the
9-8 trust is in the ward's best interests. The order shall direct the
9-9 delivery of [the guardian to deliver] all or part of the assets of
9-10 the guardianship to a trust company or a state or national bank
9-11 that has trust powers in this state. The order shall include
9-12 terms, conditions, and limitations placed on the trust. The court
9-13 shall maintain the trust under the same cause number as the
9-14 guardianship proceeding.
9-15 SECTION 10. A court may modify a guardianship in effect on
9-16 September 1, 1997, to conform with the requirements of the Texas
9-17 Probate Code, as amended by this Act, on the court's own motion or
9-18 on application by the ward, the guardian, or any other interested
9-19 person or entity.
9-20 SECTION 11. Except as provided by Section 10 of this Act,
9-21 the change in law made by this Act applies only to a proceeding for
9-22 the appointment of a guardian instituted on or after the effective
9-23 date of this Act. A proceeding for the appointment of a guardian
9-24 instituted before the effective date of this Act is governed by the
9-25 law in effect on the date on which the proceeding was instituted,
9-26 and the former law is continued in effect for that purpose.
9-27 SECTION 12. This Act takes effect September 1, 1997.
10-1 SECTION 13. The importance of this legislation and the
10-2 crowded condition of the calendars in both houses create an
10-3 emergency and an imperative public necessity that the
10-4 constitutional rule requiring bills to be read on three several
10-5 days in each house be suspended, and this rule is hereby suspended.