1-1 By: Naishtat (Senate Sponsor - Wentworth) H.B. No. 1663
1-2 (In the Senate - Received from the House May 5, 1999;
1-3 May 6, 1999, read first time and referred to Committee on
1-4 Jurisprudence; May 11, 1999, reported favorably by the following
1-5 vote: Yeas 4, Nays 0; May 11, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the creation, modification, or closing of a
1-9 guardianship of an incapacitated person.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 23.102, Government Code, is amended to
1-12 read as follows:
1-13 Sec. 23.102. Secondary Priorities. A matter not included in
1-14 Section 23.101 shall be set at the discretion of the trial court in
1-15 which the matter is pending, observing the following priorities:
1-16 (1) precedence should be given to matters where delay
1-17 will cause physical or economic injury to either the parties or the
1-18 public;
1-19 (2) matters involving substantial substantive or
1-20 constitutional rights should take precedence over matters involving
1-21 permits, licenses, or privileges; [and]
1-22 (3) precedence should be given matters involving
1-23 important issues that greatly concern the public or materially
1-24 affect the public welfare; and
1-25 (4) precedence should be given matters involving
1-26 complete restoration of a ward's capacity or modification of a
1-27 ward's guardianship.
1-28 SECTION 2. Sections 642(a) and (b), Texas Probate Code, are
1-29 amended to read as follows:
1-30 (a) Except as provided by Subsection (b) of this section,
1-31 any person has the right to commence any guardianship proceeding,
1-32 including a proceeding for complete restoration of a ward's
1-33 capacity or modification of a ward's guardianship, or to appear and
1-34 contest any guardianship proceeding or the appointment of a
1-35 particular person as guardian.
1-36 (b) A person who has an interest that is adverse to a
1-37 proposed ward or incapacitated person may not:
1-38 (1) file an application to create a guardianship for
1-39 the proposed ward or incapacitated person;
1-40 (2) contest the creation of a guardianship for the
1-41 proposed ward or incapacitated person; [or]
1-42 (3) contest the appointment of a person as a guardian
1-43 of the person or estate, or both, of the proposed ward or
1-44 incapacitated person; or
1-45 (4) contest an application for complete restoration of
1-46 a ward's capacity or modification of a ward's guardianship.
1-47 SECTION 3. Section 648A(b), Texas Probate Code, is amended
1-48 to read as follows:
1-49 (b) A court investigator shall:
1-50 (1) supervise the court visitor program established
1-51 under Section 648 of this code and in that capacity serve as the
1-52 chief court visitor;
1-53 (2) investigate a complaint received from any person
1-54 about a guardianship and report to the judge, if necessary; and
1-55 (3) perform other duties as assigned by the judge or
1-56 required by this code.
1-57 SECTION 4. Section 682, Texas Probate Code, is amended to
1-58 read as follows:
1-59 Sec. 682. APPLICATION; CONTENTS. Any person may commence a
1-60 proceeding for the appointment of a guardian by filing a written
1-61 application in a court having jurisdiction and venue. The
1-62 application must be sworn to by the applicant and state:
1-63 (1) the name, sex, date of birth, and address of the
1-64 proposed ward;
2-1 (2) the name, relationship, and address of the person
2-2 the applicant desires to have appointed as guardian;
2-3 (3) whether guardianship of the person or estate, or
2-4 both, is sought;
2-5 (4) the nature and degree of the alleged incapacity,
2-6 the specific areas of protection and assistance requested, and the
2-7 limitation of rights requested to be included in the court's order
2-8 of appointment;
2-9 (5) the facts requiring that a guardian be appointed
2-10 and the interest of the applicant in the appointment;
2-11 (6) the nature and description of any guardianship of
2-12 any kind existing for the proposed ward in [this or] any other
2-13 state;
2-14 (7) the name and address of any person or institution
2-15 having the care and custody of the proposed ward;
2-16 (8) the approximate value and description of the
2-17 proposed ward's property, including any compensation, pension,
2-18 insurance, or allowance to which the proposed ward may be entitled;
2-19 (9) [the requested term, if known, of the
2-20 guardianship;]
2-21 [(10)] the name and address of any person whom the
2-22 applicant knows to hold a power of attorney signed by the proposed
2-23 ward and a description of the type of power of attorney;
2-24 (10) [(11)] if the proposed ward is a minor, the names
2-25 of the parents and next of kin of the proposed ward and whether
2-26 either or both of the parents are deceased;
2-27 (11) [(12)] if the proposed ward is a minor, whether
2-28 the minor was the subject of a legal or conservatorship proceeding
2-29 within the preceding two-year period and, if so, the court
2-30 involved, the nature of the proceeding, and the final disposition,
2-31 if any, of the proceeding;
2-32 (12) [(13)] if the proposed ward is 60 years of age or
2-33 older, the names and addresses, to the best of the applicant's
2-34 knowledge, of the proposed ward's spouse, siblings, and children,
2-35 or, if there is no spouse, sibling, or child, the names and
2-36 addresses of the proposed ward's next of kin;
2-37 (13) [(15)] facts showing that the court has venue
2-38 over the proceeding; and
2-39 (14) [(16)] if applicable, that the person whom the
2-40 applicant desires to have appointed as a guardian is a private
2-41 professional guardian who has complied with the requirements of
2-42 Section 697 of this code.
2-43 SECTION 5. Section 694A, Texas Probate Code, is amended to
2-44 read as follows:
2-45 Sec. 694A. COMPLETE RESTORATION OF WARD'S CAPACITY OR
2-46 MODIFICATION OF GUARDIANSHIP [WARD]. (a) A ward or any person
2-47 interested in the ward's welfare may file a written application
2-48 with [petition] the court for an order:
2-49 (1) finding that the ward is no longer an
2-50 incapacitated person [needs the guardianship] and ordering the
2-51 settlement and closing of the guardianship;
2-52 (2) finding that the ward lacks the capacity to do
2-53 some or all of the tasks necessary to provide food, clothing, or
2-54 shelter [care] for himself or herself, to care for the ward's own
2-55 physical health, or to manage the ward's own financial affairs
2-56 [property] and granting additional powers or duties to the guardian
2-57 [with respect to the care of the ward or the management of the
2-58 ward's property by the guardian]; or
2-59 (3) finding that the ward has [regained] the capacity
2-60 to do some, but not all, of the tasks necessary to provide food,
2-61 clothing, or shelter [care] for himself or herself, to care for the
2-62 ward's own physical health, or to manage the ward's own financial
2-63 affairs [property] and:
2-64 (A) limiting the powers or duties of the
2-65 guardian [with respect to the care of the ward or the management of
2-66 the ward's property by the guardian]; and
2-67 (B) permitting the ward to care for himself or
2-68 herself or to manage the ward's own financial affairs [property]
2-69 commensurate with the ward's ability.
3-1 (b) A ward may make a [A] request for an order under this
3-2 section [may be made] by informal letter to the court. A person
3-3 who knowingly interferes with the transmission of the request to
3-4 the court may be adjudged guilty of contempt of court.
3-5 (c) On receipt of an informal letter under Subsection (b) of
3-6 this section, the court shall appoint the court investigator or a
3-7 guardian ad litem to file an application under Subsection (a) of
3-8 this section on the ward's behalf. A guardian ad litem appointed
3-9 under this subsection may also be appointed by the court to serve
3-10 as attorney ad litem under Section 694C of this code.
3-11 (d) When an application is filed under this section,
3-12 citation shall be served on the ward's guardian and on the ward if
3-13 the ward is not the applicant.
3-14 (e) Except as otherwise provided by the court, on good cause
3-15 shown by the applicant, a person may not reapply for complete
3-16 restoration of a ward's capacity or modification of a ward's
3-17 guardianship before the first anniversary of the date of the
3-18 hearing on the last preceding application.
3-19 SECTION 6. Subpart A, Part 3, Chapter XIII, Texas Probate
3-20 Code, is amended by adding Sections 694B through 694K to read as
3-21 follows:
3-22 Sec. 694B. CONTENTS OF APPLICATION. An application filed
3-23 under Section 694A of this code must be sworn to by the applicant
3-24 and must:
3-25 (1) contain the name, sex, date of birth, and address
3-26 of the ward;
3-27 (2) contain the name and address of any person serving
3-28 as guardian of the person of the ward on the date the application
3-29 is filed;
3-30 (3) contain the name and address of any person serving
3-31 as guardian of the estate of the ward on the date the application
3-32 is filed;
3-33 (4) state the nature and description of the ward's
3-34 guardianship;
3-35 (5) state the specific areas of protection and
3-36 assistance and any limitation of rights that exist;
3-37 (6) state whether the relief being sought is:
3-38 (A) a restoration of the ward's capacity because
3-39 the ward is no longer an incapacitated person;
3-40 (B) the granting of additional powers or duties
3-41 to the guardian; or
3-42 (C) the limitation of powers granted to or
3-43 duties performed by the guardian;
3-44 (7) if the relief being sought under the application
3-45 is described by Subdivision (6)(B) or (C) of this section, state:
3-46 (A) the nature and degree of the ward's
3-47 incapacity;
3-48 (B) the specific areas of protection and
3-49 assistance to be provided to the ward and requested to be included
3-50 in the court's order; and
3-51 (C) any limitation of the ward's rights
3-52 requested to be included in the court's order;
3-53 (8) state the approximate value and description of the
3-54 ward's property, including any compensation, pension, insurance, or
3-55 allowance to which the ward is or may be entitled; and
3-56 (9) if the ward is 60 years of age or older, contain
3-57 the names and addresses, to the best of the applicant's knowledge,
3-58 of the ward's spouse, siblings, and children or, if there is no
3-59 known spouse, sibling, or child, the names and addresses of the
3-60 ward's next of kin.
3-61 Sec. 694C. APPOINTMENT OF ATTORNEY AD LITEM. (a) The court
3-62 shall appoint an attorney ad litem to represent a ward in a
3-63 proceeding for the complete restoration of the ward's capacity or
3-64 for the modification of the ward's guardianship.
3-65 (b) Unless otherwise provided by the court, an attorney ad
3-66 litem appointed under this section shall represent the ward only
3-67 for purposes of the restoration or modification proceeding.
3-68 Sec. 694D. HEARING. (a) At a hearing on an application for
3-69 complete restoration of a ward's capacity or modification of a
4-1 ward's guardianship, the court shall consider only evidence
4-2 regarding the ward's mental or physical capacity at the time of the
4-3 hearing that is relevant to the restoration of capacity or
4-4 modification of the guardianship, as appropriate.
4-5 (b) The party who filed the application has the burden of
4-6 proof at the hearing.
4-7 Sec. 694E. FINDINGS REQUIRED. (a) Before ordering the
4-8 settlement and closing of the guardianship under an application
4-9 filed under Section 694A of this code, the court must find by a
4-10 preponderance of the evidence that the ward is no longer partially
4-11 or fully incapacitated.
4-12 (b) Before granting additional powers to the guardian or
4-13 requiring the guardian to perform additional duties under an
4-14 application filed under Section 694A of this code, the court must
4-15 find by a preponderance of the evidence that the current nature and
4-16 degree of the ward's incapacity warrants a modification of the
4-17 guardianship and that some or all of the ward's rights need to be
4-18 further restricted.
4-19 (c) Before limiting the powers granted to or duties required
4-20 to be performed by the guardian under an application filed under
4-21 Section 694A of this code, the court must find by a preponderance
4-22 of the evidence that the current nature and degree of the ward's
4-23 incapacity warrants a modification of the guardianship and that
4-24 some of the ward's rights need to be restored.
4-25 Sec. 694F. EXAMINATIONS AND REPORTS RELATING TO COMPLETE
4-26 RESTORATION OF WARD'S CAPACITY OR MODIFICATION OF GUARDIANSHIP.
4-27 (a) The court may not grant an order completely restoring a ward's
4-28 capacity or modifying a ward's guardianship under an application
4-29 filed under Section 694A of this code unless, in addition to other
4-30 requirements prescribed by this code, the applicant presents to the
4-31 court a written letter or certificate from a physician licensed in
4-32 this state that is dated not earlier than the 120th day before the
4-33 date of the filing of the application or dated after the date on
4-34 which the application was filed but before the date of the hearing.
4-35 The letter or certificate must:
4-36 (1) describe the nature and degree of incapacity,
4-37 including the medical history if reasonably available, or state
4-38 that, in the physician's opinion, the ward has the capacity to
4-39 provide food, clothing, and shelter for himself or herself, to care
4-40 for the ward's own physical health, and to manage the financial
4-41 affairs of the ward;
4-42 (2) provide a medical prognosis specifying the
4-43 estimated severity of any incapacity;
4-44 (3) state how or in what manner the ward's ability to
4-45 make or communicate responsible decisions concerning himself or
4-46 herself is affected by the person's physical or mental health;
4-47 (4) state whether any current medication affects the
4-48 demeanor of the ward or the ward's ability to participate fully in
4-49 a court proceeding;
4-50 (5) describe the precise physical and mental
4-51 conditions underlying a diagnosis of senility, if applicable; and
4-52 (6) include any other information required by the
4-53 court.
4-54 (b) If the court determines it is necessary, the court may
4-55 appoint the necessary physicians to examine the ward in the same
4-56 manner and to the same extent as a ward is examined by a physician
4-57 under Section 687 of this code.
4-58 Sec. 694G. ORDER OF COMPLETE RESTORATION OF WARD'S CAPACITY.
4-59 If the court finds that a ward is no longer an incapacitated
4-60 person, the order completely restoring the ward's capacity must
4-61 contain findings of fact and specify:
4-62 (1) the information required by Section 694J of this
4-63 code;
4-64 (2) that the ward is no longer an incapacitated
4-65 person;
4-66 (3) that there is no further need for a guardianship
4-67 of the person or estate of the ward;
4-68 (4) that the guardian is required to:
4-69 (A) immediately settle and close the
5-1 guardianship in accordance with Section 745 of this code; and
5-2 (B) deliver all of the remaining guardianship
5-3 estate to the ward; and
5-4 (5) that the clerk shall revoke letters of
5-5 guardianship when the guardianship is finally settled and closed.
5-6 Sec. 694H. MODIFICATION OF GUARDIANSHIP. If the court finds
5-7 that a guardian's powers or duties should be expanded or limited,
5-8 the order modifying the guardianship must contain findings of fact
5-9 and specify:
5-10 (1) the information required by Section 694J of this
5-11 code;
5-12 (2) the specific powers, limitations, or duties of the
5-13 guardian with respect to the care of the ward or the management of
5-14 the property of the ward, as appropriate;
5-15 (3) the specific areas of protection and assistance to
5-16 be provided to the ward;
5-17 (4) any limitation of the ward's rights; and
5-18 (5) that the clerk shall modify the letters of
5-19 guardianship to the extent applicable to conform to the order.
5-20 Sec. 694I. DISMISSAL OF APPLICATION. If the court finds
5-21 that a modification of the ward's guardianship is not necessary,
5-22 including that the ward's capacity has not been restored, the court
5-23 shall dismiss the application and enter an order that contains
5-24 findings of fact and specifies:
5-25 (1) the information required by Section 694J of this
5-26 code; and
5-27 (2) that the powers, limitations, or duties of the
5-28 guardian with respect to the care of the ward or the management of
5-29 the ward's property will remain unchanged.
5-30 Sec. 694J. CONTENTS OF ORDER. (a) A court order entered
5-31 with respect to a request made under Section 694A of this code to
5-32 completely restore a ward's capacity or modify a ward's
5-33 guardianship must:
5-34 (1) contain the name of the guardian;
5-35 (2) contain the name of the ward; and
5-36 (3) state whether the type of guardianship being
5-37 addressed at the proceeding is a:
5-38 (A) guardianship of the person;
5-39 (B) guardianship of the estate; or
5-40 (C) guardianship of both the person and the
5-41 estate.
5-42 (b) In an order described by this section, the court may not
5-43 grant a power to a guardian or require the guardian to perform a
5-44 duty that is a power granted to or a duty required to be performed
5-45 by another guardian.
5-46 Sec. 694K. ATTORNEY RETAINED ON WARD'S BEHALF. (a) A ward
5-47 may retain an attorney for a proceeding involving the complete
5-48 restoration of the ward's capacity or modification of the ward's
5-49 guardianship.
5-50 (b) The court may order that compensation for services
5-51 provided by an attorney retained under this section be paid from
5-52 funds in the ward's estate only if the court finds that the
5-53 attorney had a good-faith belief that the ward had the capacity
5-54 necessary to retain the attorney's services.
5-55 SECTION 7. (a) The changes in law made by this Act apply
5-56 to:
5-57 (1) an application for the appointment of a guardian,
5-58 restoration of a ward's capacity, or modification of a guardianship
5-59 that is filed on or after the effective date of this Act; or
5-60 (2) an application for the appointment of a guardian,
5-61 restoration of a ward's capacity, or modification of a guardianship
5-62 that is filed before the effective date of this Act in which a
5-63 final determination on the application has not been made by the
5-64 court.
5-65 (b) An application described by Subsection (a)(2) of this
5-66 section must be modified to conform to the changes in law made by
5-67 this Act.
5-68 SECTION 8. This Act takes effect September 1, 1999.
5-69 SECTION 9. The importance of this legislation and the
6-1 crowded condition of the calendars in both houses create an
6-2 emergency and an imperative public necessity that the
6-3 constitutional rule requiring bills to be read on three several
6-4 days in each house be suspended, and this rule is hereby suspended.
6-5 * * * * *