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                                  * * * * *