By Thompson H.B. No. 1851
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to guardianships for incapacitated persons.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 745(c), Texas Probate Code, is amended to
1-5 read as follows:
1-6 (c) When the estate of a minor ward consists only of cash or
1-7 cash equivalents in an amount of $50,000 [
$25,000] or less, the
1-8 guardianship of the estate may be terminated and the assets paid to
1-9 the county clerk of the county in which the guardianship
1-10 proceeding is pending, and the clerk shall manage the funds as
1-11 provided by Section 887 of this code.
1-12 SECTION 2. Subpart D, Part 4, Chapter XIII, Texas Probate
1-13 Code, is amended by adding Sections 760A and 760B to read as
1-15 Sec. 760A. CHANGE OF RESIDENT AGENT. (a) A guardian may
1-16 change its resident agent to accept service of process in a
1-17 guardianship proceeding or other matter relating to the
1-18 guardianship by filing a statement of the change entitled
1-19 "Designation of Successor Resident Agent" with the court in which
1-20 the guardianship proceeding is pending. The statement must contain
1-21 the names and addresses of the:
1-22 (1) guardian;
1-23 (2) resident agent; and
1-24 (3) successor resident agent.
2-1 (b) The designation of a successor resident agent made in a
2-2 statement filed under this section takes effect on the date on
2-3 which the statement is filed with the court.
2-4 Sec. 760B. RESIGNATION OF RESIDENT AGENT. (a) A resident
2-5 agent of a guardian may resign as the resident agent by giving
2-6 notice to the guardian and filing with the court in which the
2-7 guardianship proceeding is pending a statement entitled
2-8 "Resignation of Resident Agent" that:
2-9 (1) contains the name of the guardian;
2-10 (2) contains the address of the guardian most recently
2-11 known by the resident agent;
2-12 (3) states that notice of the resignation has been
2-13 given to the guardian and that the guardian does not have a
2-14 resident agent; and
2-15 (4) contains the date on which the notice of the
2-16 resignation was given to the guardian.
2-17 (b) The resident agent shall send, by certified mail, return
2-18 receipt requested, a copy of a resignation statement filed under
2-19 Subsection (a) of this section to:
2-20 (1) the guardian at the address most recently known by
2-21 the agent; and
2-22 (2) each party in the case or the party's attorney or
2-23 other designated representative of record.
2-24 (c) The resignation of a resident agent takes effect on the
2-25 date on which the court enters an order accepting the agent's
2-26 resignation. A court may not enter an order accepting the agent's
2-27 resignation unless the agent complies with the requirements of this
3-2 SECTION 3. Section 761(a), Texas Probate Code, is amended to
3-3 read as follows:
3-4 (a) The court, on its own motion or on motion of any
3-5 interested person, including the ward, and without notice, may
3-6 remove any guardian, appointed under this chapter, who:
3-7 (1) neglects to qualify in the manner and time
3-8 required by law;
3-9 (2) fails to return within 90 days after
3-10 qualification, unless the time is extended by order of the court,
3-11 an inventory of the property of the guardianship estate and list of
3-12 claims that have come to the guardian's knowledge;
3-13 (3) having been required to give a new bond, fails to
3-14 do so within the time prescribed;
3-15 (4) absents himself from the state for a period of
3-16 three months at one time without permission of the court, or
3-17 removes from the state;
3-18 (5) cannot be served with notices or other processes
3-19 because of the fact that:
3-20 (A) the guardian's whereabouts are unknown;
3-21 (B) [ , or because] the guardian is eluding
3-22 service; or
3-23 (C) the guardian is a nonresident of this state
3-24 who does not have a resident agent to accept service of process in
3-25 any guardianship proceeding or other matter relating to the
3-27 (6) has misapplied, embezzled, or removed from the
4-1 state, or is about to misapply, embezzle, or remove from the state,
4-2 all or any part of the property committed to the guardian's care;
4-4 (7) has cruelly treated a ward, or has neglected to
4-5 educate or maintain the ward as liberally as the means of the ward
4-6 and the condition of the ward's estate permit.
4-7 SECTION 4. Subpart M, Part 4, Chapter XIII, Texas Probate
4-8 Code, is amended by adding Section 865A to read as follows:
4-9 Sec. 865A. INSPECTION OF CERTAIN INSTRUMENT FOR ESTATE
4-10 PLANNING PURPOSES. (a) On the filing of an application under
4-11 Section 865 of this code, the guardian of the ward's estate may
4-12 apply to the court for an order to seek an in camera inspection of
4-13 a true copy of a will, codicil, trust, or other estate planning
4-14 instrument of the ward as a means of obtaining access to the
4-15 instrument for purposes of establishing an estate plan under
4-16 Section 865 of this code.
4-17 (b) An application filed under this section must:
4-18 (1) be sworn to by the guardian;
4-19 (2) list all of the instruments requested for
4-20 inspection; and
4-21 (3) state one or more reasons supporting the necessity
4-22 to inspect each requested instrument for the purpose described by
4-23 Subsection (a) of this section.
4-24 (c) A person who files an application under this section
4-25 shall send a copy of the application to:
4-26 (1) each person who has custody of an instrument
4-27 listed in the application;
5-1 (2) the ward's spouse;
5-2 (3) the ward's dependents;
5-3 (4) all devisees under a will, trust, or other
5-4 beneficial instrument relating to the ward's estate; and
5-5 (5) any other person as directed by the court.
5-6 (d) Notice required by Subsection (c) of this section must
5-7 be delivered by certified mail to a person described by Subsection
5-8 (c)(2), (3), (4), or (5) of this section and by registered or
5-9 certified mail to a person described by Subsection (c)(1) of this
5-10 section. After the 10th day after the date on which the applicant
5-11 complies with the notice requirement, the applicant may request
5-12 that a hearing be held on the application. Notice of the date,
5-13 time, and place of the hearing must be given by the applicant to
5-14 each person described by Subsection (c)(1) of this section when the
5-15 court sets a date for a hearing on the application.
5-16 (e) After the conclusion of a hearing on the application and
5-17 on a finding that there is good cause for an in camera inspection
5-18 of a requested instrument, the court shall direct the person that
5-19 has custody of the requested will, codicil, trust, or other estate
5-20 planning instrument to deliver a true copy of the instrument to the
5-21 court for in camera inspection only. After conducting an in camera
5-22 review of the instrument, the court, if good cause exists, shall
5-23 release all or part of the instrument to the applicant only for the
5-24 purpose described by Subsection (a) of this section.
5-25 (f) The court may appoint a guardian ad litem for the ward
5-26 or an interested party at any stage of the proceedings if it is
5-27 considered advisable for the protection of the ward or the
6-1 interested party.
6-2 (g) An attorney does not violate the attorney-client
6-3 privilege solely by complying with a court order to release an
6-4 instrument subject to this section. Notwithstanding Section
6-5 22.004, Government Code, the supreme court may not amend or adopt
6-6 rules in conflict with this subsection.
6-7 SECTION 5. The change in law made by this Act to Section
6-8 745(c), Texas Probate Code, applies only to an application to close
6-9 a guardianship filed on or after the effective date of this Act.
6-10 An application to close a guardianship filed before the effective
6-11 date of this Act is governed by the law in effect on the date on
6-12 which the application was filed, and the former law is continued in
6-13 effect for that purpose.
6-14 SECTION 6. Sections 760A and 760B, Texas Probate Code, as
6-15 added by this Act, apply only to a change in designation of or a
6-16 resignation of a resident agent made on or after the effective date
6-17 of this Act. A change in designation of or the resignation of a
6-18 resident agent made before the effective date of this Act is
6-19 governed by the law in effect when the change in designation of or
6-20 the resignation of the resident agent occurred, and the former law
6-21 is continued in effect for that purpose.
6-22 SECTION 7. The changes in law made by this Act to Section
6-23 761, Texas Probate Code, apply only to a motion for the removal of
6-24 a guardian made or filed on or after the effective date of this
6-25 Act. A motion for the removal of a guardian made or filed before
6-26 the effective date of this Act is governed by the law in effect on
6-27 the date the motion was made or filed, and the former law is
7-1 continued in effect for that purpose.
7-2 SECTION 8. This Act takes effect September 1, 1999.
7-3 SECTION 9. The importance of this legislation and the
7-4 crowded condition of the calendars in both houses create an
7-5 emergency and an imperative public necessity that the
7-6 constitutional rule requiring bills to be read on three several
7-7 days in each house be suspended, and this rule is hereby suspended.