By Naishtat H.B. No. 2165
76R2805 KLA-D
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 665, Texas Probate Code, is amended to
1-5 read as follows:
1-6 Sec. 665. COMPENSATION OF GUARDIANS AND TEMPORARY GUARDIANS.
1-7 (a) The court may authorize compensation for a guardian or a
1-8 temporary guardian serving as a guardian of the person alone from
1-9 available funds of the ward's estate. The court shall set the
1-10 compensation in an amount not exceeding five percent of the ward's
1-11 gross income. In determining whether to authorize compensation for
1-12 a guardian under this section, the court shall consider the ward's
1-13 monthly income from all sources and whether the ward receives
1-14 medical assistance under the state Medicaid program.
1-15 (b) The guardian or temporary guardian of an estate is
1-16 entitled to a fee of five percent of the gross income of the ward's
1-17 estate and five percent of all money paid out of the estate on a
1-18 court finding that the guardian or temporary guardian has taken
1-19 care of and managed the estate in compliance with the standards of
1-20 this chapter. In this section, the term "money paid out" does not
1-21 include any money loaned, invested, or paid over on the settlement
1-22 of the guardianship or a tax-motivated gift made by the ward. If
1-23 the fee is an unreasonably low amount, the court may authorize
1-24 reasonable compensation to a guardian or temporary guardian for
2-1 services as guardian or temporary guardian of the estate. The
2-2 court, on application of an interested person or on its own motion,
2-3 may deny a fee authorized under this section in whole, or in part,
2-4 if:
2-5 (1) the court finds that the guardian or temporary
2-6 guardian has not adequately performed the duties required of a
2-7 guardian or temporary guardian under this chapter; or
2-8 (2) the guardian or temporary guardian has been
2-9 removed for cause.
2-10 (c) Except as provided by Subsection (b) of this section for
2-11 a fee that is determined by the court to be unreasonably low, the
2-12 aggregate fee of the guardian of the person and guardian of the
2-13 estate may not exceed an amount equal to five percent of the gross
2-14 income of the ward's estate plus five percent of all money paid out
2-15 of the estate.
2-16 (d) If the estate of a ward is insufficient to pay for the
2-17 services of a person serving as guardian or temporary guardian of
2-18 the ward's person, the court may authorize compensation for the
2-19 guardian or temporary guardian from the county treasury, subject to
2-20 approval by the commissioners court of the county.
2-21 (e) In this section "gross income" does not include
2-22 Department of Veterans Affairs or Social Security benefits received
2-23 by a ward.
2-24 SECTION 2. Section 665B(a), Texas Probate Code, is amended
2-25 to read as follows:
2-26 (a) A court that creates a guardianship for a ward under
2-27 this chapter, on request of a person who filed an application to be
3-1 appointed guardian of the proposed ward, may authorize compensation
3-2 of an attorney who represents the person at the application
3-3 hearing, regardless of whether the person is appointed the ward's
3-4 guardian, from:
3-5 (1) available funds of the ward's estate; or
3-6 (2) the county treasury if the ward's estate is
3-7 insufficient to pay for the services provided by the attorney
3-8 [regardless of whether that person is appointed the ward's
3-9 guardian].
3-10 SECTION 3. Section 683, Texas Probate Code, is amended to
3-11 read as follows:
3-12 Sec. 683. COURT'S INITIATION OF GUARDIANSHIP PROCEEDINGS.
3-13 (a) If a court has probable cause based on the information required
3-14 under Subsection (b) of this section to believe that a person
3-15 domiciled or found in the county in which the court is located is
3-16 an incapacitated person, and the person does not have a guardian in
3-17 this state, the court shall appoint a guardian ad litem or court
3-18 investigator to investigate and file an application for the
3-19 appointment of a guardian of the person or estate, or both, of the
3-20 person believed to be incapacitated.
3-21 (b) Before appointing a guardian ad litem or court
3-22 investigator to file an application under this section, the court
3-23 must receive:
3-24 (1) an information letter about the person believed to
3-25 be incapacitated that is submitted by an interested person and
3-26 satisfies the requirements of Section 683A of this code; and
3-27 (2) a written letter or certificate from a physician
4-1 who has examined the person believed to be incapacitated that
4-2 satisfies the requirements of Section 683B of this code.
4-3 (c) The court may authorize compensation of a guardian ad
4-4 litem who files an application under Subsection (a) of this section
4-5 from available funds of the proposed ward's estate. If after
4-6 examining the proposed ward's assets the court determines the
4-7 proposed ward is unable to pay for services provided by the
4-8 guardian ad litem, the court may authorize compensation from the
4-9 county treasury.
4-10 SECTION 4. Subpart A, Part 3, Chapter XIII, Texas Probate
4-11 Code, is amended by adding Sections 683A and 683B to read as
4-12 follows:
4-13 Sec. 683A. INFORMATION LETTER. An information letter about
4-14 a person believed to be incapacitated that is required by Section
4-15 683(b)(1) of this code must:
4-16 (1) include the name, address, telephone number,
4-17 county of residence, social security number, and date of birth of
4-18 the person;
4-19 (2) state whether the residence of the person is a
4-20 private residence, health care facility, or other type of
4-21 residence;
4-22 (3) describe the relationship between the interested
4-23 person and the person;
4-24 (4) contain the names and telephone numbers of any
4-25 known friends and relatives of the person;
4-26 (5) state whether a guardian of the person or estate
4-27 of the person has been appointed in this state;
5-1 (6) state whether the person has executed a power of
5-2 attorney and, if so, the designee's name, address, and telephone
5-3 number;
5-4 (7) describe any property of the person, including the
5-5 estimated value of that property;
5-6 (8) list any amount and source of monthly income of
5-7 the person; and
5-8 (9) describe the nature and degree of the person's
5-9 alleged incapacity and include a statement of whether the person is
5-10 in imminent danger of serious impairment to the person's physical
5-11 health, safety, or estate.
5-12 Sec. 683B. PHYSICIAN'S LETTER. A written letter or
5-13 certificate from a physician required by Section 683(b)(2) of this
5-14 code must be dated not earlier than the 120th day before the date
5-15 of the filing of an application under Section 683 of this code and
5-16 be based on an examination the physician performed not earlier than
5-17 the 120th day before that date. The letter or certificate must:
5-18 (1) include the physician's name, address, telephone
5-19 number, and length of time the physician has provided care for the
5-20 person believed to be incapacitated;
5-21 (2) describe the nature and degree of incapacity,
5-22 including the medical history if reasonably available and a
5-23 statement of whether the incapacity is partial or total;
5-24 (3) provide a medical prognosis specifying the
5-25 estimated severity of the incapacity;
5-26 (4) state how or in what manner the person's ability
5-27 to make or communicate responsible decisions concerning himself or
6-1 herself is affected by the person's physical or mental health;
6-2 (5) state whether any current medication affects the
6-3 demeanor of the person or the person's ability to participate fully
6-4 in a court proceeding;
6-5 (6) describe the precise physical and mental
6-6 conditions underlying a diagnosis of senility or dementia, if
6-7 applicable; and
6-8 (7) include any other information required by the
6-9 court.
6-10 SECTION 5. Section 702(a), Texas Probate Code, is amended to
6-11 read as follows:
6-12 (a) Except as provided by Subsections (b) and (c) of this
6-13 section:
6-14 (1)[,] a guardian [of the person or] of the estate of
6-15 a ward is required to give bond; and
6-16 (2) the court may require a guardian of the person of
6-17 a ward to give bond.
6-18 SECTION 6. Section 743, Texas Probate Code, is amended by
6-19 adding Subsection (j) to read as follows:
6-20 (j) The court may permit a guardian of the person who cannot
6-21 afford legal representation to return the report required under
6-22 this section without a legal representative.
6-23 SECTION 7. (a) The changes in law made by this Act to
6-24 Sections 665 and 665B(a), Texas Probate Code, apply only to
6-25 compensation for a guardian of the person that is authorized by a
6-26 court on or after the effective date of this Act.
6-27 (b) Compensation for a guardian of the person that is
7-1 authorized by a court before the effective date of this Act is
7-2 governed by the law in effect on the date the compensation was
7-3 authorized, and the former law is continued in effect for that
7-4 purpose.
7-5 SECTION 8. (a) The changes in law made by this Act to
7-6 Section 702(a), Texas Probate Code, apply only to a person
7-7 appointed by a court to serve as guardian of the person of a ward
7-8 on or after the effective date of this Act.
7-9 (b) A person who is appointed by a court to serve as
7-10 guardian of the person of a ward before the effective date of this
7-11 Act is governed by the law in effect immediately before the
7-12 effective date of this Act, and the former law is continued in
7-13 effect for that purpose.
7-14 SECTION 9. (a) Section 743(j), Texas Probate Code, as added
7-15 by this Act, applies only to an account or report filed on or after
7-16 the effective date of this Act.
7-17 (b) An account or report filed before the effective date of
7-18 this Act is governed by the law in effect on the date the account
7-19 or report was filed, and the former law is continued in effect for
7-20 that purpose.
7-21 SECTION 10. This Act takes effect September 1, 1999.
7-22 SECTION 11. The importance of this legislation and the
7-23 crowded condition of the calendars in both houses create an
7-24 emergency and an imperative public necessity that the
7-25 constitutional rule requiring bills to be read on three several
7-26 days in each house be suspended, and this rule is hereby suspended.