1-1 By: Moncrief S.B. No. 586
1-2 (In the Senate - Filed February 13, 1997; February 18, 1997,
1-3 read first time and referred to Committee on State Affairs;
1-4 March 26, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 10, Nays 0; March 26, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 586 By: Cain
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the creation of the Guardianship Advisory Board and the
1-11 certification of attorneys representing certain parties in
1-12 guardianship proceedings.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Chapter 531, Government Code, is amended by
1-15 adding Subchapter D to read as follows:
1-16 SUBCHAPTER D. GUARDIANSHIP ADVISORY BOARD
1-17 Sec. 531.121. DEFINITIONS. In this subchapter:
1-18 (1) "Advisory board" means the Guardianship Advisory
1-19 Board.
1-20 (2) "Guardian" has the meaning assigned by Section
1-21 601, Texas Probate Code.
1-22 (3) "Guardianship program" has the meaning assigned by
1-23 Section 601, Texas Probate Code.
1-24 (4) "Incapacitated individual" means an incapacitated
1-25 person as defined by Section 601, Texas Probate Code.
1-26 (5) "Private professional guardian" has the meaning
1-27 assigned by Section 601, Texas Probate Code.
1-28 (6) "Statutory probate court" has the meaning assigned
1-29 by Section 601, Texas Probate Code.
1-30 Sec. 531.122. ADVISORY BOARD; MEMBERSHIP AND DUTIES.
1-31 (a) The Guardianship Advisory Board shall advise the commission in
1-32 adopting standards under Section 531.124 and in administering the
1-33 commission's duties under this subchapter.
1-34 (b) The advisory board is composed of one representative
1-35 from each of the health and human services regions, as defined by
1-36 the commission, appointed by a majority vote of the judges of the
1-37 statutory probate courts in each region. If a health and human
1-38 services region does not contain a statutory probate court, the
1-39 representative shall be appointed by a majority vote of the judges
1-40 of the statutory probate courts in the state.
1-41 (c) To be eligible for an appointment under this section, an
1-42 individual must have demonstrated experience working with:
1-43 (1) a guardianship program;
1-44 (2) an organization that advocates on behalf of or in
1-45 the interest of elderly individuals or individuals with mental
1-46 illness or mental retardation; or
1-47 (3) incapacitated individuals.
1-48 (d) A member of the advisory board serves at the pleasure of
1-49 the judges of the statutory probate courts.
1-50 (e) The presiding judge of the statutory probate courts,
1-51 elected as provided by Chapter 25, may adopt rules as necessary for
1-52 the operation of the advisory board.
1-53 (f) Sections 2 and 8, Article 6252-33, Revised Statutes, do
1-54 not apply to the advisory board.
1-55 Sec. 531.123. ADVISORY BOARD; OFFICERS AND MEETINGS.
1-56 (a) The advisory board shall elect from its members a presiding
1-57 officer and other officers considered necessary.
1-58 (b) The advisory board shall meet at the call of the
1-59 presiding officer.
1-60 (c) The advisory board shall develop and implement policies
1-61 to provide the public with a reasonable opportunity to appear
1-62 before the members of the advisory board and to speak on any issue
1-63 under the jurisdiction of the advisory board.
1-64 Sec. 531.124. DUTIES. (a) With the advice of the advisory
2-1 board, the commission shall:
2-2 (1) adopt minimum standards for the provision of
2-3 guardianship and related services by:
2-4 (A) a guardianship program;
2-5 (B) a person who provides guardianship and
2-6 related services on behalf of a guardianship program or local
2-7 guardianship center, including a person who serves as a volunteer
2-8 guardian; and
2-9 (C) a person who serves as a private
2-10 professional guardian; and
2-11 (2) develop and, subject to appropriations, implement
2-12 a plan to ensure that each incapacitated individual in this state
2-13 who needs a guardianship or another less restrictive type of
2-14 assistance to make decisions concerning the incapacitated
2-15 individual's own welfare and financial affairs receives that
2-16 assistance. The plan shall include a means to foster the
2-17 establishment and growth of local guardianship programs.
2-18 (b) The commission shall design the standards under
2-19 Subsection (a)(1) to protect the interests of an incapacitated
2-20 individual or other individual who needs assistance in making
2-21 decisions concerning the individual's own welfare or financial
2-22 affairs.
2-23 SECTION 2. Section 646, Texas Probate Code, is amended to
2-24 read as follows:
2-25 Sec. 646. Appointment of Attorney Ad Litem and Interpreter.
2-26 (a) In a proceeding under this chapter for the appointment of a
2-27 guardian for a person other than a missing person, the court shall
2-28 appoint an attorney ad litem to represent the interests of the
2-29 proposed ward. The attorney shall be supplied with copies of all
2-30 of the current records in the case and may have access to all of
2-31 the proposed ward's relevant medical, psychological, and
2-32 intellectual testing records.
2-33 (b) To be eligible for appointment as an attorney ad litem,
2-34 a person must have the certification required by Section 647A of
2-35 this code [be certified by the State Bar of Texas or a person or
2-36 other entity designated by the state bar as having successfully
2-37 completed a course of study in guardianship law and procedure
2-38 sponsored by the state bar or its designee].
2-39 (c) [For certification under Subsection (b) of this section,
2-40 the state bar shall require four hours of credit.]
2-41 [(d) A certificate issued under Subsection (b) of this
2-42 section expires on the second anniversary of the date the
2-43 certificate was issued.] A person whose certificate has expired
2-44 must obtain a new certificate to be eligible for appointment as an
2-45 attorney ad litem.
2-46 (d) [(f)] At the time of the appointment of the attorney ad
2-47 litem, the court shall also appoint a language interpreter or a
2-48 sign interpreter if necessary to ensure effective communication
2-49 between the proposed ward and the attorney.
2-50 SECTION 3. Subpart E, Part 2, Chapter XIII, Texas Probate
2-51 Code, is amended by adding Section 647A to read as follows:
2-52 Sec. 647A. CERTIFICATION REQUIREMENT FOR CERTAIN ATTORNEYS.
2-53 (a) To represent a proposed ward or guardian or other interested
2-54 person at a hearing to appoint a guardian, a person who is licensed
2-55 to practice law in this state must be certified by the State Bar of
2-56 Texas, or a person or other entity designated by the state bar, as
2-57 having successfully completed a course of study in guardianship law
2-58 and procedure approved by the state bar or its designee.
2-59 (b) For certification under this section, the state bar
2-60 shall require four hours of credit.
2-61 (c) Except as provided by Subsection (e) of this section, a
2-62 certificate issued under this section expires on the second
2-63 anniversary of the date the certificate is issued.
2-64 (d) An attorney whose certificate has expired must obtain a
2-65 new certificate to be eligible to represent a person described by
2-66 Subsection (a) of this section at a hearing to appoint a guardian.
2-67 (e) A new certificate obtained by a person who previously
2-68 has been issued a certificate under this section expires on the
2-69 fourth anniversary of the date the new certificate is issued if the
3-1 person has been certified each of the four years immediately
3-2 preceding the date the new certificate is issued.
3-3 SECTION 4. The changes in law made by Sections 2 and 3 of
3-4 this Act apply only to a proceeding for the appointment of a
3-5 guardian that is instituted on or after the effective date of this
3-6 Act. A proceeding for the appointment of a guardian that is
3-7 instituted before the effective date of this Act is governed by the
3-8 law in effect on the date the proceeding was instituted, and the
3-9 former law is continued in effect for that purpose.
3-10 SECTION 5. Not later than December 1, 1997, the statutory
3-11 probate court judges shall appoint the initial members of the
3-12 Guardianship Advisory Board.
3-13 SECTION 6. Not later than December 1, 1998, the Health and
3-14 Human Services Commission shall report to the governor and the
3-15 legislature on the plan required under Section 531.124, Government
3-16 Code, as added by this Act.
3-17 SECTION 7. This Act takes effect September 1, 1997.
3-18 SECTION 8. The importance of this legislation and the
3-19 crowded condition of the calendars in both houses create an
3-20 emergency and an imperative public necessity that the
3-21 constitutional rule requiring bills to be read on three several
3-22 days in each house be suspended, and this rule is hereby suspended.
3-23 * * * * *