By Naishtat H.B. No. 1663
76R10750 CLG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the creation, modification, or closing of a
1-3 guardianship of an incapacitated person.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 23.102, Government Code, is amended to
1-6 read as follows:
1-7 Sec. 23.102. Secondary Priorities. A matter not included in
1-8 Section 23.101 shall be set at the discretion of the trial court in
1-9 which the matter is pending, observing the following priorities:
1-10 (1) precedence should be given to matters where delay
1-11 will cause physical or economic injury to either the parties or the
1-12 public;
1-13 (2) matters involving substantial substantive or
1-14 constitutional rights should take precedence over matters involving
1-15 permits, licenses, or privileges; [and]
1-16 (3) precedence should be given matters involving
1-17 important issues that greatly concern the public or materially
1-18 affect the public welfare; and
1-19 (4) precedence should be given matters involving
1-20 complete restoration of a ward's capacity or modification of a
1-21 ward's guardianship.
1-22 SECTION 2. Sections 642(a) and (b), Texas Probate Code, are
1-23 amended to read as follows:
1-24 (a) Except as provided by Subsection (b) of this section,
2-1 any person has the right to commence any guardianship proceeding,
2-2 including a proceeding for complete restoration of a ward's
2-3 capacity or modification of a ward's guardianship, or to appear and
2-4 contest any guardianship proceeding or the appointment of a
2-5 particular person as guardian.
2-6 (b) A person who has an interest that is adverse to a
2-7 proposed ward or incapacitated person may not:
2-8 (1) file an application to create a guardianship for
2-9 the proposed ward or incapacitated person;
2-10 (2) contest the creation of a guardianship for the
2-11 proposed ward or incapacitated person; [or]
2-12 (3) contest the appointment of a person as a guardian
2-13 of the person or estate, or both, of the proposed ward or
2-14 incapacitated person; or
2-15 (4) contest an application for complete restoration of
2-16 a ward's capacity or modification of a ward's guardianship.
2-17 SECTION 3. Section 648A(b), Texas Probate Code, is amended
2-18 to read as follows:
2-19 (b) A court investigator shall:
2-20 (1) supervise the court visitor program established
2-21 under Section 648 of this code and in that capacity serve as the
2-22 chief court visitor;
2-23 (2) investigate a complaint received from any person
2-24 about a guardianship and report to the judge, if necessary; and
2-25 (3) perform other duties as assigned by the judge or
2-26 required by this code.
2-27 SECTION 4. Section 682, Texas Probate Code, is amended to
3-1 read as follows:
3-2 Sec. 682. APPLICATION; CONTENTS. Any person may commence a
3-3 proceeding for the appointment of a guardian by filing a written
3-4 application in a court having jurisdiction and venue. The
3-5 application must be sworn to by the applicant and state:
3-6 (1) the name, sex, date of birth, and address of the
3-7 proposed ward;
3-8 (2) the name, relationship, and address of the person
3-9 the applicant desires to have appointed as guardian;
3-10 (3) whether guardianship of the person or estate, or
3-11 both, is sought;
3-12 (4) the nature and degree of the alleged incapacity,
3-13 the specific areas of protection and assistance requested, and the
3-14 limitation of rights requested to be included in the court's order
3-15 of appointment;
3-16 (5) the facts requiring that a guardian be appointed
3-17 and the interest of the applicant in the appointment;
3-18 (6) the nature and description of any guardianship of
3-19 any kind existing for the proposed ward in [this or] any other
3-20 state;
3-21 (7) the name and address of any person or institution
3-22 having the care and custody of the proposed ward;
3-23 (8) the approximate value and description of the
3-24 proposed ward's property, including any compensation, pension,
3-25 insurance, or allowance to which the proposed ward may be entitled;
3-26 (9) [the requested term, if known, of the
3-27 guardianship;]
4-1 [(10)] the name and address of any person whom the
4-2 applicant knows to hold a power of attorney signed by the proposed
4-3 ward and a description of the type of power of attorney;
4-4 (10) [(11)] if the proposed ward is a minor, the names
4-5 of the parents and next of kin of the proposed ward and whether
4-6 either or both of the parents are deceased;
4-7 (11) [(12)] if the proposed ward is a minor, whether
4-8 the minor was the subject of a legal or conservatorship proceeding
4-9 within the preceding two-year period and, if so, the court
4-10 involved, the nature of the proceeding, and the final disposition,
4-11 if any, of the proceeding;
4-12 (12) [(13)] if the proposed ward is 60 years of age or
4-13 older, the names and addresses, to the best of the applicant's
4-14 knowledge, of the proposed ward's spouse, siblings, and children,
4-15 or, if there is no spouse, sibling, or child, the names and
4-16 addresses of the proposed ward's next of kin;
4-17 (13) [(15)] facts showing that the court has venue
4-18 over the proceeding; and
4-19 (14) [(16)] if applicable, that the person whom the
4-20 applicant desires to have appointed as a guardian is a private
4-21 professional guardian who has complied with the requirements of
4-22 Section 697 of this code.
4-23 SECTION 5. Section 694A, Texas Probate Code, is amended to
4-24 read as follows:
4-25 Sec. 694A. COMPLETE RESTORATION OF WARD'S CAPACITY OR
4-26 MODIFICATION OF GUARDIANSHIP [WARD]. (a) A ward or any person
4-27 interested in the ward's welfare may file a written application
5-1 with [petition] the court for an order:
5-2 (1) finding that the ward is no longer an
5-3 incapacitated person [needs the guardianship] and ordering the
5-4 settlement and closing of the guardianship;
5-5 (2) finding that the ward lacks the capacity to do
5-6 some or all of the tasks necessary to provide food, clothing, or
5-7 shelter [care] for himself or herself, to care for the ward's own
5-8 physical health, or to manage the ward's own financial affairs
5-9 [property] and granting additional powers or duties to the guardian
5-10 [with respect to the care of the ward or the management of the
5-11 ward's property by the guardian]; or
5-12 (3) finding that the ward has [regained] the capacity
5-13 to do some, but not all, of the tasks necessary to provide food,
5-14 clothing, or shelter [care] for himself or herself, to care for the
5-15 ward's own physical health, or to manage the ward's own financial
5-16 affairs [property] and:
5-17 (A) limiting the powers or duties of the
5-18 guardian [with respect to the care of the ward or the management of
5-19 the ward's property by the guardian]; and
5-20 (B) permitting the ward to care for himself or
5-21 herself or to manage the ward's own financial affairs [property]
5-22 commensurate with the ward's ability.
5-23 (b) A ward may make a [A] request for an order under this
5-24 section [may be made] by informal letter to the court. A person
5-25 who knowingly interferes with the transmission of the request to
5-26 the court may be adjudged guilty of contempt of court.
5-27 (c) On receipt of an informal letter under Subsection (b) of
6-1 this section, the court shall appoint the court investigator or a
6-2 guardian ad litem to file an application under Subsection (a) of
6-3 this section on the ward's behalf. A guardian ad litem appointed
6-4 under this subsection may also be appointed by the court to serve
6-5 as attorney ad litem under Section 694C of this code.
6-6 (d) When an application is filed under this section,
6-7 citation shall be served on the ward's guardian and on the ward if
6-8 the ward is not the applicant.
6-9 (e) Except as otherwise provided by the court, on good cause
6-10 shown by the applicant, a person may not reapply for complete
6-11 restoration of a ward's capacity or modification of a ward's
6-12 guardianship before the first anniversary of the date of the
6-13 hearing on the last preceding application.
6-14 SECTION 6. Subpart A, Part 3, Chapter XIII, Texas Probate
6-15 Code, is amended by adding Sections 694B through 694K to read as
6-16 follows:
6-17 Sec. 694B. CONTENTS OF APPLICATION. An application filed
6-18 under Section 694A of this code must be sworn to by the applicant
6-19 and must:
6-20 (1) contain the name, sex, date of birth, and address
6-21 of the ward;
6-22 (2) contain the name and address of any person serving
6-23 as guardian of the person of the ward on the date the application
6-24 is filed;
6-25 (3) contain the name and address of any person serving
6-26 as guardian of the estate of the ward on the date the application
6-27 is filed;
7-1 (4) state the nature and description of the ward's
7-2 guardianship;
7-3 (5) state the specific areas of protection and
7-4 assistance and any limitation of rights that exist;
7-5 (6) state whether the relief being sought is:
7-6 (A) a restoration of the ward's capacity because
7-7 the ward is no longer an incapacitated person;
7-8 (B) the granting of additional powers or duties
7-9 to the guardian; or
7-10 (C) the limitation of powers granted to or
7-11 duties performed by the guardian;
7-12 (7) if the relief being sought under the application
7-13 is described by Subdivision (6)(B) or (C) of this section, state:
7-14 (A) the nature and degree of the ward's
7-15 incapacity;
7-16 (B) the specific areas of protection and
7-17 assistance to be provided to the ward and requested to be included
7-18 in the court's order; and
7-19 (C) any limitation of the ward's rights
7-20 requested to be included in the court's order;
7-21 (8) state the approximate value and description of the
7-22 ward's property, including any compensation, pension, insurance, or
7-23 allowance to which the ward is or may be entitled; and
7-24 (9) if the ward is 60 years of age or older, contain
7-25 the names and addresses, to the best of the applicant's knowledge,
7-26 of the ward's spouse, siblings, and children or, if there is no
7-27 known spouse, sibling, or child, the names and addresses of the
8-1 ward's next of kin.
8-2 Sec. 694C. APPOINTMENT OF ATTORNEY AD LITEM. (a) The court
8-3 shall appoint an attorney ad litem to represent a ward in a
8-4 proceeding for the complete restoration of the ward's capacity or
8-5 for the modification of the ward's guardianship.
8-6 (b) Unless otherwise provided by the court, an attorney ad
8-7 litem appointed under this section shall represent the ward only
8-8 for purposes of the restoration or modification proceeding.
8-9 Sec. 694D. HEARING. (a) At a hearing on an application for
8-10 complete restoration of a ward's capacity or modification of a
8-11 ward's guardianship, the court shall consider only evidence
8-12 regarding the ward's mental or physical capacity at the time of the
8-13 hearing that is relevant to the restoration of capacity or
8-14 modification of the guardianship, as appropriate.
8-15 (b) The party who filed the application has the burden of
8-16 proof at the hearing.
8-17 Sec. 694E. FINDINGS REQUIRED. (a) Before ordering the
8-18 settlement and closing of the guardianship under an application
8-19 filed under Section 694A of this code, the court must find by a
8-20 preponderance of the evidence that the ward is no longer partially
8-21 or fully incapacitated.
8-22 (b) Before granting additional powers to the guardian or
8-23 requiring the guardian to perform additional duties under an
8-24 application filed under Section 694A of this code, the court must
8-25 find by a preponderance of the evidence that the current nature and
8-26 degree of the ward's incapacity warrants a modification of the
8-27 guardianship and that some or all of the ward's rights need to be
9-1 further restricted.
9-2 (c) Before limiting the powers granted to or duties required
9-3 to be performed by the guardian under an application filed under
9-4 Section 694A of this code, the court must find by a preponderance
9-5 of the evidence that the current nature and degree of the ward's
9-6 incapacity warrants a modification of the guardianship and that
9-7 some of the ward's rights need to be restored.
9-8 Sec. 694F. EXAMINATIONS AND REPORTS RELATING TO COMPLETE
9-9 RESTORATION OF WARD'S CAPACITY OR MODIFICATION OF GUARDIANSHIP.
9-10 (a) The court may not grant an order completely restoring a ward's
9-11 capacity or modifying a ward's guardianship under an application
9-12 filed under Section 694A of this code unless, in addition to other
9-13 requirements prescribed by this code, the applicant presents to the
9-14 court a written letter or certificate from a physician licensed in
9-15 this state that is dated not earlier than the 120th day before the
9-16 date of the filing of the application or dated after the date on
9-17 which the application was filed but before the date of the hearing.
9-18 The letter or certificate must:
9-19 (1) describe the nature and degree of incapacity,
9-20 including the medical history if reasonably available, or state
9-21 that, in the physician's opinion, the ward has the capacity to
9-22 provide food, clothing, and shelter for himself or herself, to care
9-23 for the ward's own physical health, and to manage the financial
9-24 affairs of the ward;
9-25 (2) provide a medical prognosis specifying the
9-26 estimated severity of any incapacity;
9-27 (3) state how or in what manner the ward's ability to
10-1 make or communicate responsible decisions concerning himself or
10-2 herself is affected by the person's physical or mental health;
10-3 (4) state whether any current medication affects the
10-4 demeanor of the ward or the ward's ability to participate fully in
10-5 a court proceeding;
10-6 (5) describe the precise physical and mental
10-7 conditions underlying a diagnosis of senility, if applicable; and
10-8 (6) include any other information required by the
10-9 court.
10-10 (b) If the court determines it is necessary, the court may
10-11 appoint the necessary physicians to examine the ward in the same
10-12 manner and to the same extent as a ward is examined by a physician
10-13 under Section 687 of this code.
10-14 Sec. 694G. ORDER OF COMPLETE RESTORATION OF WARD'S CAPACITY.
10-15 If the court finds that a ward is no longer an incapacitated
10-16 person, the order completely restoring the ward's capacity must
10-17 contain findings of fact and specify:
10-18 (1) the information required by Section 694J of this
10-19 code;
10-20 (2) that the ward is no longer an incapacitated
10-21 person;
10-22 (3) that there is no further need for a guardianship
10-23 of the person or estate of the ward;
10-24 (4) that the guardian is required to:
10-25 (A) immediately settle and close the
10-26 guardianship in accordance with Section 745 of this code; and
10-27 (B) deliver all of the remaining guardianship
11-1 estate to the ward; and
11-2 (5) that the clerk shall revoke letters of
11-3 guardianship when the guardianship is finally settled and closed.
11-4 Sec. 694H. MODIFICATION OF GUARDIANSHIP. If the court finds
11-5 that a guardian's powers or duties should be expanded or limited,
11-6 the order modifying the guardianship must contain findings of fact
11-7 and specify:
11-8 (1) the information required by Section 694J of this
11-9 code;
11-10 (2) the specific powers, limitations, or duties of the
11-11 guardian with respect to the care of the ward or the management of
11-12 the property of the ward, as appropriate;
11-13 (3) the specific areas of protection and assistance to
11-14 be provided to the ward;
11-15 (4) any limitation of the ward's rights; and
11-16 (5) that the clerk shall modify the letters of
11-17 guardianship to the extent applicable to conform to the order.
11-18 Sec. 694I. DISMISSAL OF APPLICATION. If the court finds
11-19 that a modification of the ward's guardianship is not necessary,
11-20 including that the ward's capacity has not been restored, the court
11-21 shall dismiss the application and enter an order that contains
11-22 findings of fact and specifies:
11-23 (1) the information required by Section 694J of this
11-24 code; and
11-25 (2) that the powers, limitations, or duties of the
11-26 guardian with respect to the care of the ward or the management of
11-27 the ward's property will remain unchanged.
12-1 Sec. 694J. CONTENTS OF ORDER. (a) A court order entered
12-2 with respect to a request made under Section 694A of this code to
12-3 completely restore a ward's capacity or modify a ward's
12-4 guardianship must:
12-5 (1) contain the name of the guardian;
12-6 (2) contain the name of the ward; and
12-7 (3) state whether the type of guardianship being
12-8 addressed at the proceeding is a:
12-9 (A) guardianship of the person;
12-10 (B) guardianship of the estate; or
12-11 (C) guardianship of both the person and the
12-12 estate.
12-13 (b) In an order described by this section, the court may not
12-14 grant a power to a guardian or require the guardian to perform a
12-15 duty that is a power granted to or a duty required to be performed
12-16 by another guardian.
12-17 Sec. 694K. ATTORNEY RETAINED ON WARD'S BEHALF. (a) A ward
12-18 may retain an attorney for a proceeding involving the complete
12-19 restoration of the ward's capacity or modification of the ward's
12-20 guardianship.
12-21 (b) The court may order that compensation for services
12-22 provided by an attorney retained under this section be paid from
12-23 funds in the ward's estate only if the court finds that the
12-24 attorney had a good-faith belief that the ward had the capacity
12-25 necessary to retain the attorney's services.
12-26 SECTION 7. (a) The changes in law made by this Act apply
12-27 to:
13-1 (1) an application for the appointment of a guardian,
13-2 restoration of a ward's capacity, or modification of a guardianship
13-3 that is filed on or after the effective date of this Act; or
13-4 (2) an application for the appointment of a guardian,
13-5 restoration of a ward's capacity, or modification of a guardianship
13-6 that is filed before the effective date of this Act in which a
13-7 final determination on the application has not been made by the
13-8 court.
13-9 (b) An application described by Subsection (a)(2) of this
13-10 section must be modified to conform to the changes in law made by
13-11 this Act.
13-12 SECTION 8. This Act takes effect September 1, 1999.
13-13 SECTION 9. The importance of this legislation and the
13-14 crowded condition of the calendars in both houses create an
13-15 emergency and an imperative public necessity that the
13-16 constitutional rule requiring bills to be read on three several
13-17 days in each house be suspended, and this rule is hereby suspended.