HBA-KMH C.S.H.B. 1663 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 1663
By: Naishtat
Judicial Affairs
4/21/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Provisions relating to guardianships were separated from provisions
relating to the administration of an estate in 1993, by the 73rd
Legislature. Currently, the procedure for commencing and terminating a
guardianship is similar to the procedure of a trial.  For example, an
interested party, including the proposed ward, may contest an application
for guardianship either in a trial to the bench or to a jury and the rules
of evidence used in a trial under this code are the rules of evidence which
apply to a trial in a district court.  There are significant variances from
a trial, such as a requirement that a court investigator file a report to
be used as evidence regarding the capacity of the proposed ward, a
requirement that the court keep a separate guardianship record book and
claim docket book, and the appointment of an attorney ad litem to protect
the interest of a proposed ward. 

C.S.H.B. 1663 provides rules of procedure specific to the restoration of a
ward's capacity or the modification of a guardianship.  This bill also
subjects a court investigator to the duties required by this code.
Additionally, this bill authorizes a ward to retain an attorney and the
attorney to be compensated from the ward's estate, if appropriate. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 23.102, Government Code, to provide that a trial
court should give precedence in setting matters before the court to matters
involving the complete restoration of a ward's capacity or modification of
a ward's guardianship. 

SECTION 2.  Amends Sections 642(a) and (b), Probate Code, to clarify the
term guardianship proceeding for the purposes of this section to include a
proceeding for complete restoration of a ward's capacity or modification of
a ward's guardianship.  Prohibits a person who has an interest that is
adverse to a proposed ward or incapacitated person from contesting an
application for complete restoration of a ward's capacity or modification
of a ward's guardianship. 

SECTION 3.  Amends Section 648A(b), Probate Code, to subject a court
investigator to the duties required by this code. 

SECTION 4.  Amends Section 682, Probate Code, to delete language requiring
an application for a guardianship to state the nature and description of
any guardianship of any kind existing for the proposed ward in this state.
Deletes language requiring the application to state the requested term of
the guardianship.   Redesignates existing Subsections (10)-(16) as
Subsections (9)-(15). 

SECTION 5.  Amends Section 694A, Probate Code, as follows:

Sec.  694A.  New Title: COMPLETE RESTORATION OF WARD'S CAPACITY OR
MODIFICATION OF GUARDIANSHIP.  Authorizes a person to file a written
application, rather than a petition, with the court for an order under this
section.  Modifies the language of a finding under this section to state
that the court finds that the ward is no longer an  incapacitated person,
rather than no longer needing a guardianship.  Modifies the language of a
finding under this section to state more specifically the capacity the ward
lacks. Authorizes only a ward to request an order under this section by an
informal letter to the court.  Requires the court to appoint a court
investigator or guardian ad litem to file an application on the ward's
behalf, upon receipt of an informal letter under this section. Authorizes a
guardian ad litem appointed under this section to also be appointed as
attorney ad litem under Section 694C of this code.  Requires citation to be
served on the ward's guardian and on the ward if the ward is not the
applicant, when an application is filed under this section. Prohibits a
person from reapplying for complete restoration of a ward's capacity or
modification of a ward's guardianship before the first anniversary of the
date of the hearing on the last preceding application, except as otherwise
provided by the court on a showing of good cause by the applicant. Makes
conforming and nonsubstantive changes. 

SECTION 6.  Amends Subpart A, Part 3, Chapter XIII, Probate Code, by adding
Sections 694B through 694K, as follows: 

Sec.  694B.  CONTENTS OF APPLICATION.   Provides that an application filed
under Section 694A must be sworn to by the applicant.  Sets forth the
prescribed content of an application under Section 694A. 

Sec.  694C.  APPOINTMENT OF ATTORNEY AD LITEM.  Requires the court to
appoint an attorney ad litem to represent a ward in a proceeding for the
complete restoration of the ward's capacity or for the modification of the
ward's guardianship.  Requires an attorney ad litem appointed under this
section to represent the ward only for purposes of the restoration or
modification proceeding, unless otherwise provided by the court. 

Sec.  694D.  HEARING.  Requires the court to consider at a hearing under
this subpart only evidence regarding the ward's mental or physical capacity
at the time of the hearing that is relevant to the restoration of capacity
or modification of the guardianship, as appropriate. Places the burden of
proof on the party who filed the application. 

Sec.  694E.  FINDINGS REQUIRED.  Provides that a court must find by a
preponderance of the evidence that the ward is no longer a partially or
fully incapacitated, before ordering the settlement and closing of the
guardianship under an application filed under Section 694A. Provides that a
court must find by a preponderance of the evidence that the current nature
and degree of the ward's incapacity warrants modification of the
guardianship, before ordering the powers of the guardian, or the rights of
the ward, to be modified. 

Sec.  694F.  EXAMINATIONS AND REPORTS RELATING TO COMPLETE RESTORATION OF
WARD'S CAPACITY OR MODIFICATION OF GUARDIANSHIP. Prohibits a court from
granting an order completely restoring a ward's capacity or modifying a
ward's guardianship under an application filed under Section 694A, unless
in addition to other requirements prescribed by this code, the applicant
presents to the court a timely written letter or certificate from a
physician licensed in this state which is dated as prescribed.  Sets forth
the contents of such a letter or certificate.  Authorizes the court to
appoint the necessary physicians to examine the ward in the same manner and
to the same extent as a ward is examined by a physician under Section 687
(Examinations and Reports) of this code, if deemed necessary by the court. 

Sec.  694G.  ORDER OF COMPLETE RESTORATION OF WARD'S CAPACITY. Provides
that an order restoring the ward's capacity must contain findings of fact
with prescribed specificity, require the guardian to immediately and
appropriately settle and close the guardianship, and require the clerk to
subsequently revoke letters of guardianship. 

Sec.  694H.  MODIFICATION OF GUARDIANSHIP.  Provides that an order
modifying the guardianship must contain findings of fact with prescribed
specificity; set forth specific powers, limitations, or duties of the
guardian, including the areas of protection and assistance to be provided
to the ward; any limitation of the ward's rights; and require the clerk to
modify the letters of guardianship to conform with the order. 
 
Sec.  694I.  DISMISSAL OF APPLICATION.  Requires the court to dismiss an
application if the court finds that no modification is warranted or the
capacity of the ward has not been restored.  Requires the court upon
dismissal to enter an order which contains findings of fact with prescribed
specificity. 

Sec.  694J.  CONTENTS OF ORDER.  Sets forth the required contents of an
order entered with respect to a request made under Section 694A to
completely restore a ward's capacity or modify the guardianship.  Prohibits
the court  in an order described by this section from granting to or
requiring from one guardian powers or duties which have been granted to or
required from another guardian. 

Sec.  694K.  ATTORNEY RETAINED ON WARD'S BEHALF.  Authorizes a ward to
retain an attorney for a proceeding involving the complete restoration of
the ward's capacity or modification of the ward's guardianship.  Authorizes
the court to order that compensation for services provided by an attorney
retained under this section be paid from funds in the ward's estate only if
the court finds that the attorney had a good-faith belief that the ward had
the capacity necessary to retain the attorney's services. 

SECTION 7.  Provides that this Act applies to applications for the
appointment of a guardian, restoration of a ward's capacity, or
modification of a guardianship, in which a final determination has not been
made by the court.  Provides that an application filed before the effective
date of this Act must be conformed in accordance with the changes in the
law made by this Act. 

SECTION 8.  Effective date: September 1, 1999.

SECTION 9.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 1663 modifies the original by adding new SECTIONS 1 and 2 and
redesignating SECTIONS 1-7 in the original to SECTIONS 3-9. 

SECTION 1.

C.S.H.B. 1663 modifies the original by amending Section 23.102, Government
Code, to provide that a trial court should give precedence in setting
matters before the court to matters involving the complete restoration of a
ward's capacity or modification of a ward's guardianship. 

SECTION 2.

C.S.H.B. 1663 modifies the original by amending Section 642, Probate Code,
to clarify the term guardianship proceeding for the purposes of this
section to include a proceeding for complete restoration of a ward's
capacity or modification of a ward's guardianship.  The substitute also
prohibits a person who has an interest that is adverse to a proposed ward
or incapacitated person from contesting an application for complete
restoration of a ward's capacity or modification of a ward's guardianship. 

SECTION 5.

C.S.H.B. 1663 modifies the original in Section 694A by authorizing a
guardian ad litem appointed under this section to also be appointed as the
attorney ad litem under Section 694C as added by this Act.  The substitute
requires an application filed under this section to be served on the
guardian and the ward if the ward is not the applicant.  Furthermore, the
substitute clarifies that the court is authorized to allow a person with an
adverse interest in the guardianship to contest an application under this
section only on a showing of good cause. 

SECTION 6.

C.S.H.B. 1663 modifies the original by adding new Section 694D and
redesignating existing proposed Sections 694D-694I of the original to
Sections 694E-694J.  The substitute also adds new Section 694K. 

In new Section 694D, the substitute requires the court, at a hearing under
this section, to consider only evidence regarding the ward's mental or
physical capacity at the time of the hearing that is relevant to the
restoration of capacity or modification of the guardianship, as
appropriate.  The substitute provides that the burden of proof is on the
party who filed the application under this section. 

In Section 694E, the substitute clarifies that the court is ultimately
trying to find whether the ward is no longer partially or fully
incapacitated, rather than simply whether the ward is no longer an
incapacitated person.  Furthermore, the substitute clarifies that it is the
current nature of the ward, rather than simply the nature of the ward, and
degree of the ward's incapacity that is being determined.  The substitute
makes conforming and nonsubstantive changes. 

In Section 694F, the substitute authorizes a written letter of certificate
from a licensed physician to be dated not earlier than the 120th day before
the date of the filing of the application, as well as after the date of
filing but before the date of the hearing. 

In Section 694K, the substitute authorizes a ward to retain an attorney for
proceedings under this subpart.  The substitute also authorizes the court
to order compensation for services provided by the attorney retained under
this section. 

SECTION 7.

C.S.H.B. 1663 modifies the original by providing that this Act applies to
applications for the appointment of a guardian, restoration of a ward's
capacity, or modification of a guardianship, in which a final determination
has not been made by the court.  The substitute provides that an
application filed before the effective date of this Act must be conformed
in accordance with the changes in the law made by this Act.