By Naishtat H.B. No. 1663
76R2188 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 648A(b), Texas Probate Code, is amended
1-6 to read as follows:
1-7 (b) A court investigator shall:
1-8 (1) supervise the court visitor program established
1-9 under Section 648 of this code and in that capacity serve as the
1-10 chief court visitor;
1-11 (2) investigate a complaint received from any person
1-12 about a guardianship and report to the judge, if necessary; and
1-13 (3) perform other duties as assigned by the judge or
1-14 required by this code.
1-15 SECTION 2. Section 682, Texas Probate Code, is amended to
1-16 read as follows:
1-17 Sec. 682. APPLICATION; CONTENTS. Any person may commence a
1-18 proceeding for the appointment of a guardian by filing a written
1-19 application in a court having jurisdiction and venue. The
1-20 application must be sworn to by the applicant and state:
1-21 (1) the name, sex, date of birth, and address of the
1-22 proposed ward;
1-23 (2) the name, relationship, and address of the person
1-24 the applicant desires to have appointed as guardian;
2-1 (3) whether guardianship of the person or estate, or
2-2 both, is sought;
2-3 (4) the nature and degree of the alleged incapacity,
2-4 the specific areas of protection and assistance requested, and the
2-5 limitation of rights requested to be included in the court's order
2-6 of appointment;
2-7 (5) the facts requiring that a guardian be appointed
2-8 and the interest of the applicant in the appointment;
2-9 (6) the nature and description of any guardianship of
2-10 any kind existing for the proposed ward in [this or] any other
2-11 state;
2-12 (7) the name and address of any person or institution
2-13 having the care and custody of the proposed ward;
2-14 (8) the approximate value and description of the
2-15 proposed ward's property, including any compensation, pension,
2-16 insurance, or allowance to which the proposed ward may be entitled;
2-17 (9) [the requested term, if known, of the
2-18 guardianship;]
2-19 [(10)] the name and address of any person whom the
2-20 applicant knows to hold a power of attorney signed by the proposed
2-21 ward and a description of the type of power of attorney;
2-22 (10) [(11)] if the proposed ward is a minor, the names
2-23 of the parents and next of kin of the proposed ward and whether
2-24 either or both of the parents are deceased;
2-25 (11) [(12)] if the proposed ward is a minor, whether
2-26 the minor was the subject of a legal or conservatorship proceeding
2-27 within the preceding two-year period and, if so, the court
3-1 involved, the nature of the proceeding, and the final disposition,
3-2 if any, of the proceeding;
3-3 (12) [(13)] if the proposed ward is 60 years of age or
3-4 older, the names and addresses, to the best of the applicant's
3-5 knowledge, of the proposed ward's spouse, siblings, and children,
3-6 or, if there is no spouse, sibling, or child, the names and
3-7 addresses of the proposed ward's next of kin;
3-8 (13) [(15)] facts showing that the court has venue
3-9 over the proceeding; and
3-10 (14) [(16)] if applicable, that the person whom the
3-11 applicant desires to have appointed as a guardian is a private
3-12 professional guardian who has complied with the requirements of
3-13 Section 697 of this code.
3-14 SECTION 3. Section 694A, Texas Probate Code, is amended to
3-15 read as follows:
3-16 Sec. 694A. COMPLETE RESTORATION OF WARD'S CAPACITY OR
3-17 MODIFICATION OF GUARDIANSHIP [WARD]. (a) A ward or any person
3-18 interested in the ward's welfare may file a written application
3-19 with [petition] the court for an order:
3-20 (1) finding that the ward is no longer an
3-21 incapacitated person [needs the guardianship] and ordering the
3-22 settlement and closing of the guardianship;
3-23 (2) finding that the ward lacks the capacity to do
3-24 some or all of the tasks necessary to provide food, clothing, or
3-25 shelter [care] for himself or herself, to care for the ward's own
3-26 physical health, or to manage the ward's own financial affairs
3-27 [property] and granting additional powers or duties to the guardian
4-1 [with respect to the care of the ward or the management of the
4-2 ward's property by the guardian]; or
4-3 (3) finding that the ward has regained the capacity to
4-4 do some, but not all, of the tasks necessary to provide food,
4-5 clothing, or shelter [care] for himself or herself, to care for the
4-6 ward's own physical health, or to manage the ward's own financial
4-7 affairs [property] and:
4-8 (A) limiting the powers or duties of the
4-9 guardian [with respect to the care of the ward or the management of
4-10 the ward's property by the guardian]; and
4-11 (B) permitting the ward to care for himself or
4-12 herself or to manage the ward's own financial affairs [property]
4-13 commensurate with the ward's ability.
4-14 (b) A ward may make a [A] request for an order under this
4-15 section [may be made] by informal letter to the court. A person
4-16 who knowingly interferes with the transmission of the request to
4-17 the court may be adjudged guilty of contempt of court.
4-18 (c) On receipt of an informal letter under Subsection (b) of
4-19 this section, the court shall appoint the court investigator or a
4-20 guardian ad litem to file an application under Subsection (a) of
4-21 this section on the ward's behalf.
4-22 (d) Except as otherwise provided by the court, a person may
4-23 not reapply for complete restoration of a ward's capacity or
4-24 modification of a ward's guardianship before the first anniversary
4-25 of the date of the hearing on the last preceding application.
4-26 SECTION 4. Subpart A, Part 3, Chapter XIII, Texas Probate
4-27 Code, is amended by adding Sections 694B through 694I to read as
5-1 follows:
5-2 Sec. 694B. CONTENTS OF APPLICATION. An application filed
5-3 under Section 694A of this code must be sworn to by the applicant
5-4 and must:
5-5 (1) contain the name, sex, date of birth, and address
5-6 of the ward;
5-7 (2) contain the name and address of any person serving
5-8 as guardian of the person of the ward on the date the application
5-9 is filed;
5-10 (3) contain the name and address of any person serving
5-11 as guardian of the estate of the ward on the date the application
5-12 is filed;
5-13 (4) state the nature and description of the ward's
5-14 guardianship;
5-15 (5) state the specific areas of protection and
5-16 assistance and any limitation of rights that exist;
5-17 (6) state whether the relief being sought is:
5-18 (A) a restoration of the ward's capacity because
5-19 the ward is no longer an incapacitated person;
5-20 (B) the granting of additional powers or duties
5-21 to the guardian; or
5-22 (C) the limitation of powers granted to or
5-23 duties performed by the guardian;
5-24 (7) if the relief being sought under the application
5-25 is described by Subdivision (6)(B) or (C) of this section, state:
5-26 (A) the nature and degree of the ward's
5-27 incapacity;
6-1 (B) the specific areas of protection and
6-2 assistance to be provided to the ward and requested to be included
6-3 in the court's order; and
6-4 (C) any limitation of the ward's rights
6-5 requested to be included in the court's order;
6-6 (8) state the approximate value and description of the
6-7 ward's property, including any compensation, pension, insurance, or
6-8 allowance to which the ward is or may be entitled; and
6-9 (9) if the ward is 60 years of age or older, contain
6-10 the names and addresses, to the best of the applicant's knowledge,
6-11 of the ward's spouse, siblings, and children or, if there is no
6-12 known spouse, sibling, or child, the names and addresses of the
6-13 ward's next of kin.
6-14 Sec. 694C. APPOINTMENT OF ATTORNEY AD LITEM. (a) The court
6-15 shall appoint an attorney ad litem to represent a ward in a
6-16 proceeding for the complete restoration of the ward's capacity or
6-17 for the modification of the ward's guardianship.
6-18 (b) Unless otherwise provided by the court, an attorney ad
6-19 litem appointed under this section shall represent the ward only
6-20 for purposes of the restoration or modification proceeding.
6-21 Sec. 694D. FINDINGS REQUIRED. (a) Before ordering the
6-22 settlement and closing of the guardianship under an application
6-23 filed under Section 694A of this code, the court must find by a
6-24 preponderance of the evidence that the ward is no longer an
6-25 incapacitated person.
6-26 (b) Before granting additional powers to the guardian or
6-27 requiring the guardian to perform additional duties under an
7-1 application filed under Section 694A of this code, the court must
7-2 find by a preponderance of the evidence that the nature and degree
7-3 of the ward's incapacity has changed to the extent that:
7-4 (1) a modification of the guardianship is warranted;
7-5 and
7-6 (2) some or all of the ward's rights need to be
7-7 further restricted.
7-8 (c) Before limiting the powers granted to or duties required
7-9 to be performed by the guardian under an application filed under
7-10 Section 694A of this code, the court must find by a preponderance
7-11 of the evidence that the nature and degree of the ward's incapacity
7-12 has changed to the extent that:
7-13 (1) a modification of the guardianship is warranted;
7-14 and
7-15 (2) some of the ward's rights need to be restored.
7-16 Sec. 694E. EXAMINATIONS AND REPORTS RELATING TO COMPLETE
7-17 RESTORATION OF WARD'S CAPACITY OR MODIFICATION OF GUARDIANSHIP.
7-18 (a) The court may not grant an order completely restoring a ward's
7-19 capacity or modifying a ward's guardianship under an application
7-20 filed under Section 694A of this code unless, in addition to other
7-21 requirements prescribed by this code, the applicant presents to the
7-22 court a written letter or certificate from a physician licensed in
7-23 this state that is dated after the date on which the application
7-24 was filed but before the date of the hearing. The letter or
7-25 certificate must:
7-26 (1) describe the nature and degree of incapacity,
7-27 including the medical history if reasonably available, or state
8-1 that, in the physician's opinion, the ward has the capacity to
8-2 provide food, clothing, and shelter for himself or herself, to care
8-3 for the ward's own physical health, and to manage the financial
8-4 affairs of the ward;
8-5 (2) provide a medical prognosis specifying the
8-6 estimated severity of any incapacity;
8-7 (3) state how or in what manner the ward's ability to
8-8 make or communicate responsible decisions concerning himself or
8-9 herself is affected by the person's physical or mental health;
8-10 (4) state whether any current medication affects the
8-11 demeanor of the ward or the ward's ability to participate fully in
8-12 a court proceeding;
8-13 (5) describe the precise physical and mental
8-14 conditions underlying a diagnosis of senility, if applicable; and
8-15 (6) include any other information required by the
8-16 court.
8-17 (b) If the court determines it is necessary, the court may
8-18 appoint the necessary physicians to examine the ward in the same
8-19 manner and to the same extent as a ward is examined by a physician
8-20 under Section 687 of this code.
8-21 Sec. 694F. ORDER OF COMPLETE RESTORATION OF WARD'S CAPACITY.
8-22 If the court finds that a ward is no longer an incapacitated
8-23 person, the order completely restoring the ward's capacity must
8-24 contain findings of fact and specify:
8-25 (1) the information required by Section 694I of this
8-26 code;
8-27 (2) that the ward is no longer an incapacitated
9-1 person;
9-2 (3) that there is no further need for a guardianship
9-3 of the person or estate of the ward;
9-4 (4) that the guardian is required to:
9-5 (A) immediately settle and close the
9-6 guardianship in accordance with Section 745 of this code; and
9-7 (B) deliver all of the remaining guardianship
9-8 estate to the ward; and
9-9 (5) that the clerk shall revoke letters of
9-10 guardianship when the guardianship is finally settled and closed.
9-11 Sec. 694G. MODIFICATION OF GUARDIANSHIP. If the court finds
9-12 that a guardian's powers or duties should be expanded or limited,
9-13 the order modifying the guardianship must contain findings of fact
9-14 and specify:
9-15 (1) the information required by Section 694I of this
9-16 code;
9-17 (2) the specific powers, limitations, or duties of the
9-18 guardian with respect to the care of the ward or the management of
9-19 the property of the ward, as appropriate;
9-20 (3) the specific areas of protection and assistance to
9-21 be provided to the ward;
9-22 (4) any limitation of the ward's rights; and
9-23 (5) that the clerk shall modify the letters of
9-24 guardianship to the extent applicable to conform to the order.
9-25 Sec. 694H. DISMISSAL OF APPLICATION. If the court finds
9-26 that a modification of the ward's guardianship is not necessary,
9-27 including that the ward's capacity has not been restored, the court
10-1 shall dismiss the application and enter an order that contains
10-2 findings of fact and specifies:
10-3 (1) the information required by Section 694I of this
10-4 code; and
10-5 (2) that the powers, limitations, or duties of the
10-6 guardian with respect to the care of the ward or the management of
10-7 the ward's property will remain unchanged.
10-8 Sec. 694I. CONTENTS OF ORDER. (a) A court order entered
10-9 with respect to a request made under Section 694A of this code to
10-10 completely restore a ward's capacity or modify a ward's
10-11 guardianship must:
10-12 (1) contain the name of the guardian;
10-13 (2) contain the name of the ward; and
10-14 (3) state whether the type of guardianship being
10-15 addressed at the proceeding is a:
10-16 (A) guardianship of the person;
10-17 (B) guardianship of the estate; or
10-18 (C) guardianship of both the person and the
10-19 estate.
10-20 (b) In an order described by this section, the court may not
10-21 grant a power to a guardian or require the guardian to perform a
10-22 duty that is a power granted to or a duty required to be performed
10-23 by another guardian.
10-24 SECTION 5. The changes in law made by this Act apply only to
10-25 an application for the appointment of a guardian, restoration of a
10-26 ward's capacity, or modification of a guardianship that is filed on
10-27 or after the effective date of this Act. An application for the
11-1 appointment of a guardian, restoration of a ward's capacity, or
11-2 modification of a guardianship that is filed before the effective
11-3 date of this Act is governed by the law in effect when the
11-4 application was filed, and the former law is continued in effect
11-5 for that purpose.
11-6 SECTION 6. This Act takes effect September 1, 1999.
11-7 SECTION 7. The importance of this legislation and the
11-8 crowded condition of the calendars in both houses create an
11-9 emergency and an imperative public necessity that the
11-10 constitutional rule requiring bills to be read on three several
11-11 days in each house be suspended, and this rule is hereby suspended.