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.