AN ACT
1-1 relating to the procedures for and administration of guardianships.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Subsection (c), Section 609, Texas Probate Code,
1-4 is amended to read as follows:
1-5 (c) The court to which a transfer is made under this section
1-6 shall apply the procedural and substantive provisions of the Family
1-7 Code, including Sections 155.005 and 155.205 [Section 11.05(h), and
1-8 its subsequent amendments], in regard to enforcing an order
1-9 rendered by the court from which the proceeding was transferred.
1-10 SECTION 2. Subsections (d) and (f), Section 633, Texas
1-11 Probate Code, are amended to read as follows:
1-12 (d) The court clerk, at the applicant's request, or the
1-13 applicant shall mail a copy of the notice by registered or
1-14 certified mail, return receipt requested, to the following persons
1-15 if their whereabouts are known or can be reasonably ascertained:
1-16 (1) all adult siblings and all adult children of a
1-17 proposed ward;
1-18 (2) the administrator of a nursing home facility or
1-19 similar facility in which the proposed ward resides;
1-20 (3) the operator of a residential facility in which
1-21 the proposed ward resides; [and]
1-22 (4) a person whom the applicant knows to hold a power
1-23 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 671, Texas Probate Code, is amended by
2-20 adding Subsection (e) to read as follows:
2-21 (e) The court may request an applicant or court-appointed
2-22 fiduciary to produce other information identifying an applicant,
2-23 ward, or guardian, including social security numbers, in addition
2-24 to identifying information the applicant or fiduciary is required
2-25 to produce under this code. The court shall maintain the
3-1 information required under this subsection, and the information may
3-2 not be filed with the clerk.
3-3 SECTION 4. Subsection (a), Section 677A, Texas Probate Code,
3-4 is amended to read as follows:
3-5 (a) A written declaration appointing an eligible person to
3-6 be guardian of the person of the parent's child under Section
3-7 [676(d) or] 677(b) of this code must be attested to by at least two
3-8 credible witnesses 14 years of age or older who are not named as
3-9 guardian or alternate guardian in the declaration.
3-10 SECTION 5. Section 682, Texas Probate Code, is amended to
3-11 read as follows:
3-12 Sec. 682. APPLICATION; CONTENTS. Any person may commence a
3-13 proceeding for the appointment of a guardian by filing a written
3-14 application in a court having jurisdiction and venue. The
3-15 application must be sworn to by the applicant and state:
3-16 (1) the name, sex, date of birth, and address of the
3-17 proposed ward;
3-18 (2) the name, relationship, and address of the person
3-19 the applicant desires to have appointed as guardian;
3-20 (3) [the social security number of the proposed ward
3-21 and of the person the applicant desires to have appointed as
3-22 guardian;]
3-23 [(4)] whether guardianship of the person or estate, or
3-24 both, is sought;
3-25 (4) [(5)] the nature and degree of the alleged
4-1 incapacity, the specific areas of protection and assistance
4-2 requested, and the limitation of rights requested to be included in
4-3 the court's order of appointment;
4-4 (5) [(6)] the facts requiring that a guardian be
4-5 appointed and the interest of the applicant in the appointment;
4-6 (6) [(7)] the nature and description of any
4-7 guardianship of any kind existing for the proposed ward in this or
4-8 any other state;
4-9 (7) [(8)] the name and address of any person or
4-10 institution having the care and custody of the proposed ward;
4-11 (8) [(9)] the approximate value and description of the
4-12 proposed ward's property, including any compensation, pension,
4-13 insurance, or allowance to which the proposed ward may be entitled;
4-14 (9) [(10)] the requested term, if known, of the
4-15 guardianship;
4-16 (10) [(11)] the name and address of any person whom
4-17 the applicant knows to hold a power of attorney signed by the
4-18 proposed ward and a description of the type of power of attorney;
4-19 (11) [(12)] if the proposed ward is a minor, the names
4-20 of the parents and next of kin of the proposed ward and whether
4-21 either or both of the parents are deceased;
4-22 (12) [(13)] if the proposed ward is a minor, whether
4-23 the minor was the subject of a legal or conservatorship proceeding
4-24 within the preceding two-year period and, if so, the court
4-25 involved, the nature of the proceeding, and the final disposition,
5-1 if any, of the proceeding;
5-2 (13) [(14)] if the proposed ward is 60 years of age or
5-3 older, the names and addresses, to the best of the applicant's
5-4 knowledge, of the proposed ward's spouse, siblings, and children,
5-5 or, if there is no spouse, sibling, or child, the names and
5-6 addresses of the proposed ward's next of kin;
5-7 (14) [(15)] if the proposed ward is a missing person:
5-8 (A) the last known residence of the missing
5-9 person;
5-10 (B) the name of the executive department of the
5-11 United States reporting the proposed ward as a missing person, the
5-12 date of the report, and the last known whereabouts of the missing
5-13 person; and
5-14 (C) the names and addresses of the missing
5-15 person's spouse, children, and parents, or, if there is no spouse,
5-16 child, or parent, the names and addresses of the missing person's
5-17 next of kin;
5-18 (15) [(16)] facts showing that the court has venue
5-19 over the proceeding; and
5-20 (16) [(17)] if applicable, that the person whom the
5-21 applicant desires to have appointed as a guardian is a private
5-22 professional guardian who has complied with the requirements of
5-23 Section 697 of this code.
5-24 SECTION 6. Subsection (a), Section 774, Texas Probate Code,
5-25 is amended to read as follows:
6-1 (a) On application, and if authorized by an order, the
6-2 guardian of the estate may renew or extend any obligation owed by
6-3 or to the ward. On written application to the court and when a
6-4 guardian of the estate deems it is in the best interest of the
6-5 estate, the guardian may, if authorized by an order of the court:
6-6 (1) purchase or exchange property;
6-7 (2) take a claim or property for the use and benefit
6-8 of the estate in payment of a debt due or owing to the estate;
6-9 (3) compound a bad or doubtful debt due or owing to
6-10 the estate;
6-11 (4) make a compromise or a settlement in relation to
6-12 property or a claim in dispute or litigation; [and]
6-13 (5) compromise or pay in full any secured claim that
6-14 has been allowed and approved as required by law against the estate
6-15 by conveying to the holder of the secured claim the real estate or
6-16 personalty securing the claim, in full payment, liquidation, and
6-17 satisfaction of the claim, and in consideration of cancellation of
6-18 a note, deed of trust, mortgage, chattel mortgage, or other
6-19 evidence of a lien that secures the payment of the claim; and
6-20 (6) abandon worthless or burdensome property and the
6-21 administration of that property. Abandoned real or personal
6-22 property may be foreclosed on by a secured party, trustee, or
6-23 mortgagee without further order of the court.
6-24 SECTION 7. Subpart F, Part 4, Chapter XIII, Texas Probate
6-25 Code, is amended by adding Section 776A to read as follows:
7-1 Sec. 776A. SUMS ALLOWABLE FOR EDUCATION AND MAINTENANCE OF
7-2 WARD'S SPOUSE OR DEPENDENT. (a) Subject to Section 777 of this
7-3 code and on application to the court, the court may order the
7-4 guardian of the estate of a ward to expend funds from the ward's
7-5 estate for the education and maintenance of the ward's spouse or
7-6 dependent.
7-7 (b) In determining whether to order the expenditure of funds
7-8 from a ward's estate for the ward's spouse or dependent, as
7-9 appropriate, in accordance with this section, the court shall
7-10 consider:
7-11 (1) the circumstances of the ward, the ward's spouse,
7-12 and the ward's dependents;
7-13 (2) the ability and duty of the ward's spouse to
7-14 support himself or herself and the ward's dependent;
7-15 (3) the size of the ward's estate;
7-16 (4) a beneficial interest the ward or the ward's
7-17 spouse or dependent has in a trust; and
7-18 (5) an existing estate plan, including a trust or
7-19 will, that provides a benefit to the ward's spouse or dependent.
7-20 (c) A person who makes an application to the court under
7-21 this section shall mail notice of the application by certified mail
7-22 to all interested persons.
7-23 SECTION 8. Subsection (a), Section 783, Texas Probate Code,
7-24 is amended to read as follows:
7-25 (a) Within one month after receiving letters, personal
8-1 representatives of estates shall send to the comptroller of public
8-2 accounts by certified or registered mail if the ward [decedent]
8-3 remitted or should have remitted taxes administered by the
8-4 comptroller of public accounts and publish in some newspaper,
8-5 printed in the county where the letters were issued, if there be
8-6 one, a notice requiring all persons having a claim against the
8-7 estate being administered to present the claim within the time
8-8 prescribed by law. The notice must include the time of issuance of
8-9 letters held by the representative, the address to which a claim
8-10 may be presented, and an instruction of the representative's choice
8-11 that a claim be addressed in care of the representative, in care of
8-12 the representative's attorney, or in care of "Representative,
8-13 Estate of __________" (naming the estate).
8-14 SECTION 9. Section 865, Texas Probate Code, is amended by
8-15 amending Subsection (a) and adding Subsection (e) to read as
8-16 follows:
8-17 (a) On application of the guardian of the estate or any
8-18 interested party and after the posting of notice [to all interested
8-19 persons and to other persons as directed by the court], the court,
8-20 after hearing, may enter an order that authorizes the guardian to
8-21 apply the principal or income of the ward's estate that is not
8-22 required for the support of the ward or the ward's family during
8-23 the ward's lifetime toward the establishment of an estate plan for
8-24 the purpose of minimizing income, estate, inheritance, or other
8-25 taxes payable out of the ward's estate on a showing that the ward
9-1 will probably remain incapacitated during the ward's lifetime. On
9-2 the ward's behalf, the court may authorize the guardian to make
9-3 gifts, outright or in trust, of the ward's personal property or
9-4 real estate to or for the benefit of:
9-5 (1) an organization to which charitable contributions
9-6 may be made under the Internal Revenue Code and in which it is
9-7 shown the ward would reasonably have an interest;
9-8 (2) the ward's spouse, descendant, or other person
9-9 related to the ward by blood or marriage [heirs at law] who are
9-10 identifiable at the time of the order;
9-11 (3) a devisee under the ward's last validly executed
9-12 will, trust, or other beneficial instrument if the instrument
9-13 exists [there is a will]; and
9-14 (4) a person serving as guardian of the ward if the
9-15 person is eligible under either Subdivision (2) or (3) of this
9-16 subsection.
9-17 (e) A person who makes an application to the court under
9-18 this section shall mail notice of the application by certified mail
9-19 to:
9-20 (1) all devisees under a will, trust, or other
9-21 beneficial instrument relating to the ward's estate;
9-22 (2) the ward's spouse;
9-23 (3) the ward's dependents; and
9-24 (4) any other person as directed by the court.
9-25 SECTION 10. A court may modify a guardianship in effect on
10-1 September 1, 1997, to conform with the requirements of the Texas
10-2 Probate Code, as amended by this Act, on the court's own motion or
10-3 on application by the ward, the guardian, or any other interested
10-4 person or entity.
10-5 SECTION 11. Except as provided by Section 10 of this Act,
10-6 the change in law made by this Act applies only to a proceeding for
10-7 the appointment of a guardian instituted on or after the effective
10-8 date of this Act. A proceeding for the appointment of a guardian
10-9 instituted before the effective date of this Act is governed by the
10-10 law in effect on the date on which the proceeding was instituted,
10-11 and the former law is continued in effect for that purpose.
10-12 SECTION 12. This Act takes effect September 1, 1997.
10-13 SECTION 13. The importance of this legislation and the
10-14 crowded condition of the calendars in both houses create an
10-15 emergency and an imperative public necessity that the
10-16 constitutional rule requiring bills to be read on three several
10-17 days in each house be suspended, and this rule is hereby suspended.
S.B. No. 997
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 997 passed the Senate on
April 3, 1997, by a viva-voce vote; and that the Senate concurred
in House amendment on April 29, 1997, by a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 997 passed the House, with
amendment, on April 25, 1997, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor