HBA-KMH H.B. 2165 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2165 By: Naishtat Judicial Affairs 4/22/1999 Introduced BACKGROUND AND PURPOSE Under current law, a court may only authorize compensation for a guardian of the person from the ward's estate. If the ward has no estate, the court cannot compensate guardians of the person and has to find volunteers to serve when the ward has no suitable family members. Courts need to appoint guardians in indigent guardianship cases, but have been resistant to paying guardians because of this law. County commissioners courts also have been willing to allow courts to pay guardians of the person out of the court's budget, but have been reluctant to do so because of the law. Similarly, attorneys who represent applicants to be appointed as guardians for indigent incapacitated persons have no way to be paid for their services. Current law provides that an applicant's attorney is paid out of the ward's estate. If the ward has no estate, the attorney must depend on the applicant to pay the attorney's fees for filing the guardianship application. Lack of funds prevents many family members or friends from pursuing guardianship of their incapacitated relatives or friends. Some courts wish to pay attorneys to file these applications to protect incapacitated persons in their counties. H.B. 2165 authorizes a county to pay for certain attorney and guardian ad litem fees if appropriate out of the county treasury. This bill requires certain evidence before a judge is authorized to appoint a guardian, including a letter of information and a letter or certificate from a physician about the proposed ward. Furthermore, this bill provides the required content of the letters and certificate described by this Act. Additionally, this bill authorizes a person filing an application for guardianship, under specified circumstances, to provide the report of the guardian of the person without legal representation. 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 665, Probate Code, to authorize the court to authorize compensation for the guardian or temporary guardian form the county treasury, subject to approval by the commissioners court of the county, if the estate of a ward is insufficient to pay for the services of a person serving as guardian or temporary guardian of the ward's person. SECTION 2. Amends Section 665B(a), Probate Code, to make conforming and nonsubstantive changes. SECTION 3. Amends Section 683, Probate Code, to provide that before appointing a guardian ad litem or court investigator to file an application under this section, the court must receive an information letter from an interested person about the proposed ward that satisfies Section 683A and a written letter or certificate from a physician who has examined the proposed ward that satisfies Section 683B. Authorizes the court to authorize compensation of the guardian ad litem who files an application under this section from available funds of the proposed ward's estate. Authorizes the court to authorize the compensation to be paid from the county treasury on a finding that the ward's assets are insufficient to pay for the services provided. SECTION 4. Amends Subpart A, Part 3, Chapter XIII, Probate Code, by adding Sections 683A and 683B, as follows: Sec. 683A. INFORMATION LETTER. Sets forth the required contents of the information letter required by Section 683 of this code. Sec. 683B. PHYSICIAN'S LETTER. Sets forth the required contents of the physician's letter or certificate required by Section 683 of this code. Provides that the physician's letter or certificate must be dated not earlier than the 120th day before the date of the filing of an application under Section 683 and be based on the examination the physician performed not earlier than the 120th day before that date. SECTION 5. Amends Section 702(a), Probate Code, to make a nonsubstantive change. SECTION 6. Amends Section 743, Probate Code, by adding Subsection (j), as follows: (j) Authorizes the court to permit a guardian of the person who cannot afford legal representation to return the report required under this section without a legal representative. SECTION 7. Makes application of this Act prospective as to Sections 665 and 665B, as amended by this Act. SECTION 8. Makes application of this Act prospective as to Section 702(a), as amended by this Act. SECTION 9. Makes application of this Act prospective as to Section 743(j), as amended by this Act. SECTION 10. Effective date: September 1, 1999. SECTION 11. Emergency clause.