1-1 By: Harris S.B. No. 997
1-2 (In the Senate - Filed March 6, 1997; March 11, 1997, read
1-3 first time and referred to Committee on Jurisprudence;
1-4 March 26, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 0; March 26, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 997 By: Harris
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the procedures for and administration of guardianships.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Subsection (c), Section 609, Texas Probate Code,
1-13 is amended to read as follows:
1-14 (c) The court to which a transfer is made under this section
1-15 shall apply the procedural and substantive provisions of the Family
1-16 Code, including Sections 155.005 and 155.205 [Section 11.05(h), and
1-17 its subsequent amendments], in regard to enforcing an order
1-18 rendered by the court from which the proceeding was transferred.
1-19 SECTION 2. Subsections (d) and (f), Section 633, Texas
1-20 Probate Code, are amended to read as follows:
1-21 (d) The court clerk, at the applicant's request, or the
1-22 applicant shall mail a copy of the notice by registered or
1-23 certified mail, return receipt requested, to the following persons
1-24 if their whereabouts are known or can be reasonably ascertained:
1-25 (1) all adult siblings and all adult children of a
1-26 proposed ward;
1-27 (2) the administrator of a nursing home facility or
1-28 similar facility in which the proposed ward resides;
1-29 (3) the operator of a residential facility in which
1-30 the proposed ward resides; [and]
1-31 (4) a person whom the applicant knows to hold a power
1-32 of attorney signed by the proposed ward;
1-33 (5) a person designated to serve as guardian of the
1-34 proposed ward by a written declaration under Section 679 of this
1-35 code, if the applicant knows of the existence of the declaration;
1-36 (6) a person designated to serve as guardian of the
1-37 proposed ward in the probated will of the last surviving parent of
1-38 the ward; and
1-39 (7) a person designated to serve as guardian of the
1-40 proposed ward by a written declaration of the proposed ward's last
1-41 surviving parent, if the declarant is deceased and the applicant
1-42 knows of the existence of the declaration.
1-43 (f) The court may not act on an application for the creation
1-44 of a guardianship until the Monday following the expiration of the
1-45 10-day period beginning the date service of notice and citation has
1-46 been made as provided by Subsections (b), (c), and (d)(1) of this
1-47 section. The validity of a guardianship created under this chapter
1-48 is not affected by the failure of the clerk or applicant to comply
1-49 with the requirements of Subsections (d)(2)-(7) [(d)(2)-(4)] of
1-50 this section.
1-51 SECTION 3. Section 671, Texas Probate Code, is amended by
1-52 adding Subsection (e) to read as follows:
1-53 (e) The court may request an applicant or court-appointed
1-54 fiduciary to produce other information identifying an applicant,
1-55 ward, or guardian, including social security numbers, in addition
1-56 to identifying information the applicant or fiduciary is required
1-57 to produce under this code. The court shall maintain the
1-58 information required under this subsection, and the information may
1-59 not be filed with the clerk.
1-60 SECTION 4. Subsection (a), Section 677A, Texas Probate Code,
1-61 is amended to read as follows:
1-62 (a) A written declaration appointing an eligible person to
1-63 be guardian of the person of the parent's child under Section
1-64 [676(d) or] 677(b) of this code must be attested to by at least two
2-1 credible witnesses 14 years of age or older who are not named as
2-2 guardian or alternate guardian in the declaration.
2-3 SECTION 5. Section 682, Texas Probate Code, is amended to
2-4 read as follows:
2-5 Sec. 682. APPLICATION; CONTENTS. Any person may commence a
2-6 proceeding for the appointment of a guardian by filing a written
2-7 application in a court having jurisdiction and venue. The
2-8 application must be sworn to by the applicant and state:
2-9 (1) the name, sex, date of birth, and address of the
2-10 proposed ward;
2-11 (2) the name, relationship, and address of the person
2-12 the applicant desires to have appointed as guardian;
2-13 (3) [the social security number of the proposed ward
2-14 and of the person the applicant desires to have appointed as
2-15 guardian;]
2-16 [(4)] whether guardianship of the person or estate, or
2-17 both, is sought;
2-18 (4) [(5)] the nature and degree of the alleged
2-19 incapacity, the specific areas of protection and assistance
2-20 requested, and the limitation of rights requested to be included in
2-21 the court's order of appointment;
2-22 (5) [(6)] the facts requiring that a guardian be
2-23 appointed and the interest of the applicant in the appointment;
2-24 (6) [(7)] the nature and description of any
2-25 guardianship of any kind existing for the proposed ward in this or
2-26 any other state;
2-27 (7) [(8)] the name and address of any person or
2-28 institution having the care and custody of the proposed ward;
2-29 (8) [(9)] the approximate value and description of the
2-30 proposed ward's property, including any compensation, pension,
2-31 insurance, or allowance to which the proposed ward may be entitled;
2-32 (9) [(10)] the requested term, if known, of the
2-33 guardianship;
2-34 (10) [(11)] the name and address of any person whom
2-35 the applicant knows to hold a power of attorney signed by the
2-36 proposed ward and a description of the type of power of attorney;
2-37 (11) [(12)] if the proposed ward is a minor, the names
2-38 of the parents and next of kin of the proposed ward and whether
2-39 either or both of the parents are deceased;
2-40 (12) [(13)] if the proposed ward is a minor, whether
2-41 the minor was the subject of a legal or conservatorship proceeding
2-42 within the preceding two-year period and, if so, the court
2-43 involved, the nature of the proceeding, and the final disposition,
2-44 if any, of the proceeding;
2-45 (13) [(14)] if the proposed ward is 60 years of age or
2-46 older, the names and addresses, to the best of the applicant's
2-47 knowledge, of the proposed ward's spouse, siblings, and children,
2-48 or, if there is no spouse, sibling, or child, the names and
2-49 addresses of the proposed ward's next of kin;
2-50 (14) [(15)] if the proposed ward is a missing person:
2-51 (A) the last known residence of the missing
2-52 person;
2-53 (B) the name of the executive department of the
2-54 United States reporting the proposed ward as a missing person, the
2-55 date of the report, and the last known whereabouts of the missing
2-56 person; and
2-57 (C) the names and addresses of the missing
2-58 person's spouse, children, and parents, or, if there is no spouse,
2-59 child, or parent, the names and addresses of the missing person's
2-60 next of kin;
2-61 (15) [(16)] facts showing that the court has venue
2-62 over the proceeding; and
2-63 (16) [(17)] if applicable, that the person whom the
2-64 applicant desires to have appointed as a guardian is a private
2-65 professional guardian who has complied with the requirements of
2-66 Section 697 of this code.
2-67 SECTION 6. Subsection (a), Section 774, Texas Probate Code,
2-68 is amended to read as follows:
2-69 (a) On application, and if authorized by an order, the
3-1 guardian of the estate may renew or extend any obligation owed by
3-2 or to the ward. On written application to the court and when a
3-3 guardian of the estate deems it is in the best interest of the
3-4 estate, the guardian may, if authorized by an order of the court:
3-5 (1) purchase or exchange property;
3-6 (2) take a claim or property for the use and benefit
3-7 of the estate in payment of a debt due or owing to the estate;
3-8 (3) compound a bad or doubtful debt due or owing to
3-9 the estate;
3-10 (4) make a compromise or a settlement in relation to
3-11 property or a claim in dispute or litigation; [and]
3-12 (5) compromise or pay in full any secured claim that
3-13 has been allowed and approved as required by law against the estate
3-14 by conveying to the holder of the secured claim the real estate or
3-15 personalty securing the claim, in full payment, liquidation, and
3-16 satisfaction of the claim, and in consideration of cancellation of
3-17 a note, deed of trust, mortgage, chattel mortgage, or other
3-18 evidence of a lien that secures the payment of the claim; and
3-19 (6) abandon worthless or burdensome property and the
3-20 administration of that property.
3-21 SECTION 7. Subpart F, Part 4, Chapter XIII, Texas Probate
3-22 Code, is amended by adding Section 776A to read as follows:
3-23 Sec. 776A. SUMS ALLOWABLE FOR EDUCATION AND MAINTENANCE OF
3-24 WARD'S SPOUSE OR DEPENDENT. (a) Subject to Section 777 of this
3-25 code and on application to the court, the court may order the
3-26 guardian of the estate of a ward to expend funds from the ward's
3-27 estate for the education and maintenance of the ward's spouse or
3-28 dependent.
3-29 (b) In determining whether to order the expenditure of funds
3-30 from a ward's estate for the ward's spouse or dependent, as
3-31 appropriate, in accordance with this section, the court shall
3-32 consider:
3-33 (1) the circumstances of the ward, the ward's spouse,
3-34 and the ward's dependents;
3-35 (2) the ability and duty of the ward's spouse to
3-36 support himself or herself and the ward's dependent;
3-37 (3) the size of the ward's estate;
3-38 (4) a beneficial interest the ward or the ward's
3-39 spouse or dependent has in a trust; and
3-40 (5) an existing estate plan, including a trust or
3-41 will, that provides a benefit to the ward's spouse or dependent.
3-42 (c) A person who makes an application to the court under
3-43 this section shall mail notice of the application by certified mail
3-44 to all interested persons.
3-45 SECTION 8. Subsection (a), Section 783, Texas Probate Code,
3-46 is amended to read as follows:
3-47 (a) Within one month after receiving letters, personal
3-48 representatives of estates shall send to the comptroller of public
3-49 accounts by certified or registered mail if the ward [decedent]
3-50 remitted or should have remitted taxes administered by the
3-51 comptroller of public accounts and publish in some newspaper,
3-52 printed in the county where the letters were issued, if there be
3-53 one, a notice requiring all persons having a claim against the
3-54 estate being administered to present the claim within the time
3-55 prescribed by law. The notice must include the time of issuance of
3-56 letters held by the representative, the address to which a claim
3-57 may be presented, and an instruction of the representative's choice
3-58 that a claim be addressed in care of the representative, in care of
3-59 the representative's attorney, or in care of "Representative,
3-60 Estate of __________" (naming the estate).
3-61 SECTION 9. Section 865, Texas Probate Code, is amended by
3-62 amending Subsection (a) and adding Subsection (e) to read as
3-63 follows:
3-64 (a) On application of the guardian of the estate or any
3-65 interested party and after the posting of notice [to all interested
3-66 persons and to other persons as directed by the court], the court,
3-67 after hearing, may enter an order that authorizes the guardian to
3-68 apply the principal or income of the ward's estate that is not
3-69 required for the support of the ward or the ward's family during
4-1 the ward's lifetime toward the establishment of an estate plan for
4-2 the purpose of minimizing income, estate, inheritance, or other
4-3 taxes payable out of the ward's estate on a showing that the ward
4-4 will probably remain incapacitated during the ward's lifetime. On
4-5 the ward's behalf, the court may authorize the guardian to make
4-6 gifts, outright or in trust, of the ward's personal property or
4-7 real estate to or for the benefit of:
4-8 (1) an organization to which charitable contributions
4-9 may be made under the Internal Revenue Code and in which it is
4-10 shown the ward would reasonably have an interest;
4-11 (2) the ward's spouse, descendant, or other person
4-12 related to the ward by blood or marriage [heirs at law] who are
4-13 identifiable at the time of the order;
4-14 (3) a devisee under the ward's last validly executed
4-15 will, trust, or other beneficial instrument if the instrument
4-16 exists [there is a will]; and
4-17 (4) a person serving as guardian of the ward if the
4-18 person is eligible under either Subdivision (2) or (3) of this
4-19 subsection.
4-20 (e) A person who makes an application to the court under
4-21 this section shall mail notice of the application by certified mail
4-22 to:
4-23 (1) all devisees under a will, trust, or other
4-24 beneficial instrument relating to the ward's estate;
4-25 (2) the ward's spouse;
4-26 (3) the ward's dependents; and
4-27 (4) any other person as directed by the court.
4-28 SECTION 10. A court may modify a guardianship in effect on
4-29 September 1, 1997, to conform with the requirements of the Texas
4-30 Probate Code, as amended by this Act, on the court's own motion or
4-31 on application by the ward, the guardian, or any other interested
4-32 person or entity.
4-33 SECTION 11. Except as provided by Section 10 of this Act,
4-34 the change in law made by this Act applies only to a proceeding for
4-35 the appointment of a guardian instituted on or after the effective
4-36 date of this Act. A proceeding for the appointment of a guardian
4-37 instituted before the effective date of this Act is governed by the
4-38 law in effect on the date on which the proceeding was instituted,
4-39 and the former law is continued in effect for that purpose.
4-40 SECTION 12. This Act takes effect September 1, 1997.
4-41 SECTION 13. The importance of this legislation and the
4-42 crowded condition of the calendars in both houses create an
4-43 emergency and an imperative public necessity that the
4-44 constitutional rule requiring bills to be read on three several
4-45 days in each house be suspended, and this rule is hereby suspended.
4-46 * * * * *