By: Moncrief S.B. No. 586
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the creation of the Guardianship Advisory Board and the
1-2 certification of attorneys representing certain parties in
1-3 guardianship proceedings.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 531, Government Code, is amended by
1-6 adding Subchapter D to read as follows:
1-7 SUBCHAPTER D. GUARDIANSHIP ADVISORY BOARD
1-8 Sec. 531.121. DEFINITIONS. In this subchapter:
1-9 (1) "Advisory board" means the Guardianship Advisory
1-10 Board.
1-11 (2) "Guardian" has the meaning assigned by Section
1-12 601, Texas Probate Code.
1-13 (3) "Guardianship program" has the meaning assigned by
1-14 Section 601, Texas Probate Code.
1-15 (4) "Incapacitated individual" means an incapacitated
1-16 person as defined by Section 601, Texas Probate Code.
1-17 (5) "Private professional guardian" has the meaning
1-18 assigned by Section 601, Texas Probate Code.
1-19 (6) "Statutory probate court" has the meaning assigned
1-20 by Section 601, Texas Probate Code.
1-21 Sec. 531.122. ADVISORY BOARD; MEMBERSHIP AND DUTIES.
1-22 (a) The Guardianship Advisory Board shall advise the commission in
1-23 adopting standards under Section 531.124 and in administering the
2-1 commission's duties under this subchapter.
2-2 (b) The advisory board is composed of one representative
2-3 from each of the health and human services regions, as defined by
2-4 the commission, appointed by a majority vote of the judges of the
2-5 statutory probate courts in each region. If a health and human
2-6 services region does not contain a statutory probate court, the
2-7 representative shall be appointed by a majority vote of the judges
2-8 of the statutory probate courts in the state.
2-9 (c) To be eligible for an appointment under this section, an
2-10 individual must have demonstrated experience working with:
2-11 (1) a guardianship program;
2-12 (2) an organization that advocates on behalf of or in
2-13 the interest of elderly individuals or individuals with mental
2-14 illness or mental retardation; or
2-15 (3) incapacitated individuals.
2-16 (d) A member of the advisory board serves at the pleasure of
2-17 the judges of the statutory probate courts.
2-18 (e) The presiding judge of the statutory probate courts,
2-19 elected as provided by Chapter 25, may adopt rules as necessary for
2-20 the operation of the advisory board.
2-21 (f) Sections 2 and 8, Article 6252-33, Revised Statutes, do
2-22 not apply to the advisory board.
2-23 Sec. 531.123. ADVISORY BOARD; OFFICERS AND MEETINGS.
2-24 (a) The advisory board shall elect from its members a presiding
2-25 officer and other officers considered necessary.
3-1 (b) The advisory board shall meet at the call of the
3-2 presiding officer.
3-3 (c) The advisory board shall develop and implement policies
3-4 to provide the public with a reasonable opportunity to appear
3-5 before the members of the advisory board and to speak on any issue
3-6 under the jurisdiction of the advisory board.
3-7 Sec. 531.124. DUTIES. (a) With the advice of the advisory
3-8 board, the commission shall:
3-9 (1) adopt minimum standards for the provision of
3-10 guardianship and related services by:
3-11 (A) a guardianship program;
3-12 (B) a person who provides guardianship and
3-13 related services on behalf of a guardianship program or local
3-14 guardianship center, including a person who serves as a volunteer
3-15 guardian; and
3-16 (C) a person who serves as a private
3-17 professional guardian; and
3-18 (2) develop and, subject to appropriations, implement
3-19 a plan to ensure that each incapacitated individual in this state
3-20 who needs a guardianship or another less restrictive type of
3-21 assistance to make decisions concerning the incapacitated
3-22 individual's own welfare and financial affairs receives that
3-23 assistance. The plan shall include a means to foster the
3-24 establishment and growth of local volunteer guardianship programs.
3-25 (b) The commission shall design the standards under
4-1 Subsection (a)(1) to protect the interests of an incapacitated
4-2 individual or other individual who needs assistance in making
4-3 decisions concerning the individual's own welfare or financial
4-4 affairs.
4-5 SECTION 2. Section 646, Texas Probate Code, is amended to
4-6 read as follows:
4-7 Sec. 646. Appointment of Attorney Ad Litem and Interpreter.
4-8 (a) In a proceeding under this chapter for the appointment of a
4-9 guardian for a person other than a missing person, the court shall
4-10 appoint an attorney ad litem to represent the interests of the
4-11 proposed ward. The attorney shall be supplied with copies of all
4-12 of the current records in the case and may have access to all of
4-13 the proposed ward's relevant medical, psychological, and
4-14 intellectual testing records.
4-15 (b) To be eligible for appointment as an attorney ad litem,
4-16 a person must have the certification required by Section 647A of
4-17 this code [be certified by the State Bar of Texas or a person or
4-18 other entity designated by the state bar as having successfully
4-19 completed a course of study in guardianship law and procedure
4-20 sponsored by the state bar or its designee].
4-21 (c) [For certification under Subsection (b) of this section,
4-22 the state bar shall require four hours of credit.]
4-23 [(d) A certificate issued under Subsection (b) of this
4-24 section expires on the second anniversary of the date the
4-25 certificate was issued.] A person whose certificate has expired
5-1 must obtain a new certificate to be eligible for appointment as an
5-2 attorney ad litem.
5-3 (d) [(f)] At the time of the appointment of the attorney ad
5-4 litem, the court shall also appoint a language interpreter or a
5-5 sign interpreter if necessary to ensure effective communication
5-6 between the proposed ward and the attorney.
5-7 SECTION 3. Subpart E, Part 2, Chapter XIII, Texas Probate
5-8 Code, is amended by adding Section 647A to read as follows:
5-9 Sec. 647A. CERTIFICATION REQUIREMENT FOR CERTAIN ATTORNEYS.
5-10 (a) To represent a proposed ward or guardian or other interested
5-11 person at a hearing to appoint a guardian, a person who is licensed
5-12 to practice law in this state must be certified by the State Bar of
5-13 Texas, or a person or other entity designated by the state bar, as
5-14 having successfully completed a course of study in guardianship law
5-15 and procedure approved by the state bar or its designee.
5-16 (b) For certification under this section, the state bar
5-17 shall require four hours of credit.
5-18 (c) Except as provided by Subsection (e) of this section, a
5-19 certificate issued under this section expires on the second
5-20 anniversary of the date the certificate is issued.
5-21 (d) An attorney whose certificate has expired must obtain a
5-22 new certificate to be eligible to represent a person described by
5-23 Subsection (a) of this section at a hearing to appoint a guardian.
5-24 (e) A new certificate obtained by a person who previously
5-25 has been issued a certificate under this section expires on the
6-1 fourth anniversary of the date the new certificate is issued if the
6-2 person has been certified each of the four years immediately
6-3 preceding the date the new certificate is issued.
6-4 (f) A court in a county with a population of less than
6-5 100,000 may exempt an attorney other than an attorney who is
6-6 appointed as an attorney ad litem under Section 646 of this code
6-7 from the certification requirements of this section if the court
6-8 determines that the exemption is in the best interests of the
6-9 county and the proposed ward, proposed guardian, or other person
6-10 the attorney is to represent at the hearing to appoint a guardian.
6-11 SECTION 4. The changes in law made by Sections 2 and 3 of
6-12 this Act apply only to a proceeding for the appointment of a
6-13 guardian that is instituted on or after the effective date of this
6-14 Act. A proceeding for the appointment of a guardian that is
6-15 instituted before the effective date of this Act is governed by the
6-16 law in effect on the date the proceeding was instituted, and the
6-17 former law is continued in effect for that purpose.
6-18 SECTION 5. Not later than December 1, 1997, the statutory
6-19 probate court judges shall appoint the initial members of the
6-20 Guardianship Advisory Board.
6-21 SECTION 6. Not later than December 1, 1998, the Health and
6-22 Human Services Commission shall report to the governor and the
6-23 legislature on the plan required under Section 531.124, Government
6-24 Code, as added by this Act.
6-25 SECTION 7. This Act takes effect September 1, 1997.
7-1 SECTION 8. The importance of this legislation and the
7-2 crowded condition of the calendars in both houses create an
7-3 emergency and an imperative public necessity that the
7-4 constitutional rule requiring bills to be read on three several
7-5 days in each house be suspended, and this rule is hereby suspended.