1-1 By: Naishtat (Senate Sponsor - Moncrief) H.B. No. 2165
1-2 (In the Senate - Received from the House May 10, 1999;
1-3 May 10, 1999, read first time and referred to Committee on
1-4 Jurisprudence; May 14, 1999, reported favorably by the following
1-5 vote: Yeas 4, Nays 0; May 14, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to guardianships for incapacitated persons.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 SECTION 1. Section 665, Texas Probate Code, is amended to
1-11 read as follows:
1-12 Sec. 665. COMPENSATION OF GUARDIANS AND TEMPORARY GUARDIANS.
1-13 (a) The court may authorize compensation for a guardian or a
1-14 temporary guardian serving as a guardian of the person alone from
1-15 available funds of the ward's estate. The court shall set the
1-16 compensation in an amount not exceeding five percent of the ward's
1-17 gross income. In determining whether to authorize compensation for
1-18 a guardian under this section, the court shall consider the ward's
1-19 monthly income from all sources and whether the ward receives
1-20 medical assistance under the state Medicaid program.
1-21 (b) The guardian or temporary guardian of an estate is
1-22 entitled to a fee of five percent of the gross income of the ward's
1-23 estate and five percent of all money paid out of the estate on a
1-24 court finding that the guardian or temporary guardian has taken
1-25 care of and managed the estate in compliance with the standards of
1-26 this chapter. In this section, the term "money paid out" does not
1-27 include any money loaned, invested, or paid over on the settlement
1-28 of the guardianship or a tax-motivated gift made by the ward. If
1-29 the fee is an unreasonably low amount, the court may authorize
1-30 reasonable compensation to a guardian or temporary guardian for
1-31 services as guardian or temporary guardian of the estate. The
1-32 court, on application of an interested person or on its own motion,
1-33 may deny a fee authorized under this section in whole, or in part,
1-35 (1) the court finds that the guardian or temporary
1-36 guardian has not adequately performed the duties required of a
1-37 guardian or temporary guardian under this chapter; or
1-38 (2) the guardian or temporary guardian has been
1-39 removed for cause.
1-40 (c) Except as provided by Subsection (b) of this section for
1-41 a fee that is determined by the court to be unreasonably low, the
1-42 aggregate fee of the guardian of the person and guardian of the
1-43 estate may not exceed an amount equal to five percent of the gross
1-44 income of the ward's estate plus five percent of all money paid out
1-45 of the estate.
1-46 (d) If the estate of a ward is insufficient to pay for the
1-47 services of a private professional guardian or a licensed attorney
1-48 serving as guardian of the ward's person, the court may authorize
1-49 compensation for that guardian if funds in the county treasury are
1-50 budgeted for that purpose.
1-51 (e) In this section "gross income" does not include
1-52 Department of Veterans Affairs or Social Security benefits received
1-53 by a ward.
1-54 SECTION 2. Section 665B(a), Texas Probate Code, is amended
1-55 to read as follows:
1-56 (a) A court that creates a guardianship for a ward under
1-57 this chapter, on request of a person who filed an application to be
1-58 appointed guardian of the proposed ward, may authorize compensation
1-59 of an attorney who represents the person at the application
1-60 hearing, regardless of whether the person is appointed the ward's
1-61 guardian, from:
1-62 (1) available funds of the ward's estate; or
1-63 (2) the county treasury if:
1-64 (A) the ward's estate is insufficient to pay for
2-1 the services provided by the attorney; and
2-2 (B) funds in the county treasury are budgeted
2-3 for that purpose [
regardless of whether that person is appointed
2-4 the ward's guardian].
2-5 SECTION 3. Section 683, Texas Probate Code, is amended to
2-6 read as follows:
2-7 Sec. 683. COURT'S INITIATION OF GUARDIANSHIP PROCEEDINGS.
2-8 (a) If a court has probable cause to believe that a person
2-9 domiciled or found in the county in which the court is located is
2-10 an incapacitated person, and the person does not have a guardian in
2-11 this state, the court shall appoint a guardian ad litem or court
2-12 investigator to investigate and file an application for the
2-13 appointment of a guardian of the person or estate, or both, of the
2-14 person believed to be incapacitated.
2-15 (b) To establish probable cause under this section, the
2-16 court may require:
2-17 (1) an information letter about the person believed to
2-18 be incapacitated that is submitted by an interested person and
2-19 satisfies the requirements of Section 683A of this code; or
2-20 (2) a written letter or certificate from a physician
2-21 who has examined the person believed to be incapacitated that
2-22 satisfies the requirements of Section 687(a) of this code, except
2-23 that the letter must be dated not earlier than the 120th day before
2-24 the date of the filing of an application under Subsection (a) of
2-25 this section and be based on an examination the physician performed
2-26 not earlier than the 120th day before that date.
2-27 (c) A court that creates a guardianship for a ward under
2-28 this chapter may authorize compensation of a guardian ad litem who
2-29 files an application under Subsection (a) of this section from
2-30 available funds of the ward's estate. If after examining the
2-31 ward's assets the court determines the ward is unable to pay for
2-32 services provided by the guardian ad litem, the court may authorize
2-33 compensation from the county treasury.
2-34 SECTION 4. Subpart A, Part 3, Chapter XIII, Texas Probate
2-35 Code, is amended by adding Section 683A to read as follows:
2-36 Sec. 683A. INFORMATION LETTER. An information letter under
2-37 Section 683(b)(1) of this code about a person believed to be
2-38 incapacitated may:
2-39 (1) include the name, address, telephone number,
2-40 county of residence, social security number, and date of birth of
2-41 the person;
2-42 (2) state whether the residence of the person is a
2-43 private residence, health care facility, or other type of
2-45 (3) describe the relationship between the interested
2-46 person and the person;
2-47 (4) contain the names and telephone numbers of any
2-48 known friends and relatives of the person;
2-49 (5) state whether a guardian of the person or estate
2-50 of the person has been appointed in this state;
2-51 (6) state whether the person has executed a power of
2-52 attorney and, if so, the designee's name, address, and telephone
2-54 (7) describe any property of the person, including the
2-55 estimated value of that property;
2-56 (8) list any amount and source of monthly income of
2-57 the person; and
2-58 (9) describe the nature and degree of the person's
2-59 alleged incapacity and include a statement of whether the person is
2-60 in imminent danger of serious impairment to the person's physical
2-61 health, safety, or estate.
2-62 SECTION 5. Section 743, Texas Probate Code, is amended by
2-63 adding Subsection (j) to read as follows:
2-64 (j) A guardian of the person may complete and file the
2-65 report required under this section without the assistance of an
2-67 SECTION 6. (a) The changes in law made by this Act to
2-68 Sections 665 and 665B(a), Texas Probate Code, apply only to
2-69 compensation for a guardian of the person that is authorized by a
3-1 court on or after the effective date of this Act.
3-2 (b) Compensation for a guardian of the person that is
3-3 authorized by a court before the effective date of this Act is
3-4 governed by the law in effect on the date the compensation was
3-5 authorized, and the former law is continued in effect for that
3-7 SECTION 7. (a) Section 743(j), Texas Probate Code, as added
3-8 by this Act, applies only to an account or report filed on or after
3-9 the effective date of this Act.
3-10 (b) An account or report filed before the effective date of
3-11 this Act is governed by the law in effect on the date the account
3-12 or report was filed, and the former law is continued in effect for
3-13 that purpose.
3-14 SECTION 8. This Act takes effect September 1, 1999.
3-15 SECTION 9. The importance of this legislation and the
3-16 crowded condition of the calendars in both houses create an
3-17 emergency and an imperative public necessity that the
3-18 constitutional rule requiring bills to be read on three several
3-19 days in each house be suspended, and this rule is hereby suspended.
3-20 * * * * *