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,
1-34     if:
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
2-44     residence;
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
2-53     number;
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
2-66     attorney.
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
 3-6     purpose.
 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.
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