By Hartnett H.B. No. 2893
76R1423 CLG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to management of the part of the community estate
1-3 belonging to an incapacitated spouse.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 601, Texas Probate Code, is amended to
1-6 read as follows:
1-7 Sec. 601. DEFINITIONS. In this chapter:
1-8 (1) "Attorney ad litem" means an attorney who is
1-9 appointed by a court to represent and advocate on behalf of a
1-10 proposed ward, an incapacitated person, or an unborn person in a
1-11 guardianship proceeding.
1-12 (2) "Authorized corporate surety" means a domestic or
1-13 foreign corporation authorized to do business in this state to
1-14 issue surety, guaranty, or indemnity bonds guaranteeing the
1-15 fidelity of guardians.
1-16 (3) "Child" includes a biological or adopted child,
1-17 whether adopted by a parent under a statutory procedure or by acts
1-18 of estoppel.
1-19 (4) "Claims" includes a liability against the estate
1-20 of a minor or an incapacitated person and debts due to the estate
1-21 of a minor or an incapacitated person.
1-22 (5) "Community administrator" means a spouse who is
1-23 authorized to manage, control, and dispose of the entire community
1-24 estate on the judicial declaration of incapacity of the other
2-1 spouse, including the part of the community estate that the other
2-2 spouse legally has the power to manage in the absence of the
2-3 incapacity.
2-4 (6) "Corporate fiduciary" means a trust company or
2-5 bank having trust powers, existing or doing business under the laws
2-6 of this state or of the United States, that is authorized by law
2-7 to act under the order or appointment of any court of record,
2-8 without giving bond, as a guardian, receiver, trustee, executor, or
2-9 administrator, or, although without general depository powers, as a
2-10 depository for any money paid into court, or to become sole
2-11 guarantor or surety in or on any bond required to be given under
2-12 the laws of this state.
2-13 (7) [(6)] "Court investigator" means a person
2-14 appointed by a statutory probate court under Section 25.0025,
2-15 Government Code.
2-16 (8) [(7)] "Court" or "probate court" means a county
2-17 court in the exercise of its probate jurisdiction, a court created
2-18 by statute and authorized to exercise original probate
2-19 jurisdiction, or a district court exercising original probate
2-20 jurisdiction in contested matters.
2-21 (9) [(8)] "Estate" or "guardianship estate" means the
2-22 real and personal property of a ward or deceased ward, both as the
2-23 property originally existed and as has from time to time changed
2-24 in form by sale, reinvestment, or otherwise, and as augmented by
2-25 any accretions and additions to (including any property to be
2-26 distributed to the representative of the deceased ward by the
2-27 trustee of a trust that terminates on the ward's death) or
3-1 substitutions for the property, and as diminished by any decreases
3-2 to or distributions from the property.
3-3 (10) [(9)] "Exempt property" refers to that property
3-4 of a deceased ward's estate that is exempt from execution or forced
3-5 sale by the constitution or laws of this state, and to the
3-6 allowance in lieu of the property.
3-7 (11) [(10)] "Guardian" means a person who is appointed
3-8 guardian under Section 693 of this code, or a temporary or
3-9 successor guardian. Except as expressly provided otherwise,
3-10 "guardian" includes the guardian of the estate and the guardian of
3-11 the person of an incapacitated person.
3-12 (12) [(11)] "Guardian ad litem" means a person who is
3-13 appointed by a court to represent the best interests of an
3-14 incapacitated person in a guardianship proceeding.
3-15 (13) [(12)] "Guardianship program" means a local,
3-16 county, or regional program that provides guardianship and related
3-17 services to an incapacitated person or other person who needs
3-18 assistance in making decisions concerning the person's own welfare
3-19 or financial affairs.
3-20 (14) [(13)] "Incapacitated person" means:
3-21 (A) a minor;
3-22 (B) an adult individual who, because of a
3-23 physical or mental condition, is substantially unable to provide
3-24 food, clothing, or shelter for himself or herself, to care for the
3-25 individual's own physical health, or to manage the individual's own
3-26 financial affairs;
3-27 (C) a missing person; or
4-1 (D) a person who must have a guardian appointed
4-2 to receive funds due the person from any governmental source.
4-3 (15) [(14)] "Interested persons" or "persons
4-4 interested" means an heir, devisee, spouse, creditor, or any other
4-5 person having a property right in, or claim against, the estate
4-6 being administered or a person interested in the welfare of an
4-7 incapacitated person, including a minor.
4-8 (16) [(15)] "Minor" means a person who is younger than
4-9 18 years of age and who has never been married or who has not had
4-10 the person's disabilities of minority removed for general purposes.
4-11 (17) [(16)] "Minutes" means the guardianship minutes.
4-12 (18) [(17)] "Missing person" has the meaning assigned
4-13 by Section 79.001, Human Resources Code.
4-14 (19) [(18)] "Mortgage" or "lien" includes a deed of
4-15 trust; vendor's lien; chattel mortgage; mechanic's,
4-16 materialman's, or laborer's lien; judgment, attachment, or
4-17 garnishment lien; pledge by hypothecation; and a federal or state
4-18 tax lien.
4-19 (20) [(19)] "Next of kin" includes an adopted child,
4-20 the descendants of an adopted child, and the adoptive parent of an
4-21 adopted child.
4-22 (21) [(20)] "Parent" means the mother of a child, a
4-23 man presumed to be the biological father of a child, a man who has
4-24 been adjudicated to be the biological father of a child by a court
4-25 of competent jurisdiction, or an adoptive mother or father of a
4-26 child, but does not include a parent as to whom the parent-child
4-27 relationship has been terminated.
5-1 (22) [(21)] "Person" includes natural persons,
5-2 corporations, and guardianship programs.
5-3 (23) [(22)] "Personal property" includes an interest
5-4 in goods, money, choses in action, evidence of debts, and chattels
5-5 real.
5-6 (24) [(23)] "Personal representative" or
5-7 "representative" includes a guardian, and a successor guardian.
5-8 (25) [(24)] "Private professional guardian" means a
5-9 person, other than an attorney or a corporate fiduciary, who is
5-10 engaged in the business of providing guardianship services.
5-11 (26) [(25)] "Proceedings in guardianship,"
5-12 "guardianship matter," "guardianship matters," "guardianship
5-13 proceeding," and "proceedings for guardianship" are synonymous and
5-14 include a matter or proceeding relating to a guardianship or any
5-15 other matter addressed by this chapter.
5-16 (27) [(26)] "Property" includes both real and personal
5-17 property.
5-18 (28) [(27)] "Proposed ward" means a person alleged to
5-19 be incapacitated in a guardianship proceeding.
5-20 (29) [(28)] "Real property" includes estates and
5-21 interests in lands, corporeal or incorporeal, legal or equitable,
5-22 other than chattels real.
5-23 (30) [(29)] "Statutory probate court" means a
5-24 statutory court designated as a statutory probate court under
5-25 Chapter 25, Government Code. A county court at law exercising
5-26 probate jurisdiction is not a statutory probate court under this
5-27 chapter unless the court is designated a statutory probate court
6-1 under Chapter 25, Government Code.
6-2 (31) [(30)] "Surety" includes a personal and a
6-3 corporate surety.
6-4 (32) [(31)] "Ward" is a person for whom a guardian has
6-5 been appointed.
6-6 (33) [(32)] The singular number includes the plural;
6-7 the plural number includes the singular.
6-8 (34) [(33)] The masculine gender includes the feminine
6-9 and neuter.
6-10 SECTION 2. Section 702(b), Texas Probate Code, is amended to
6-11 read as follows:
6-12 (b) A bond is not required to be given by a guardian that
6-13 is:
6-14 (1) a corporate fiduciary, as defined by Section
6-15 601[(5)] of this code; or
6-16 (2) a guardianship program operated by a county.
6-17 SECTION 3. Section 883, Texas Probate Code, is amended to
6-18 read as follows:
6-19 Sec. 883. INCAPACITATED SPOUSE. (a) Except as provided by
6-20 Subsection (b) of this section, when [When] a husband or wife is
6-21 judicially declared to be incapacitated, the other spouse, in the
6-22 capacity of surviving partner of the marital partnership, acquires
6-23 full power to manage, control, and dispose of the entire community
6-24 estate, including the part of the community estate that the
6-25 incapacitated spouse legally has the power to manage in the absence
6-26 of the incapacity, without an administration.
6-27 (b) If the spouse who is not incapacitated would be
7-1 disqualified to serve as guardian under Section 681 of this code, a
7-2 guardian of the estate of the incapacitated spouse shall administer
7-3 or continue to administer the part of the community estate that the
7-4 incapacitated spouse legally has the power to manage in the absence
7-5 of the incapacity. The court shall appoint a guardian to
7-6 administer that part of the incapacitated spouse's community estate
7-7 if the incapacitated spouse does not have a guardian of the estate.
7-8 (c) If the court finds that it is in the best interest of
7-9 the incapacitated spouse and that the other spouse would not be
7-10 disqualified to serve as guardian under Section 681 of this code,
7-11 the court may appoint a guardian of the estate to manage any
7-12 separate property owned by [guardianship of the estate of] the
7-13 incapacitated spouse [may not be necessary when the other spouse is
7-14 not incapacitated unless the incapacitated spouse owns separate
7-15 property, and the guardianship will be of the separate property
7-16 only]. The qualification of a guardian of the estate of the
7-17 separate property of an incapacitated spouse appointed under this
7-18 subsection does not deprive the competent spouse of the right to
7-19 manage, control, and dispose of the entire community estate as
7-20 provided in this chapter.
7-21 SECTION 4. Subpart C, Part 5, Chapter XIII, Texas Probate
7-22 Code, is amended by adding Sections 883B and 883C to read as
7-23 follows:
7-24 Sec. 883B. ACCOUNTING, INVENTORY, AND APPRAISEMENT BY
7-25 COMMUNITY ADMINISTRATOR. (a) On the motion of a person interested
7-26 in the community estate, the court shall require a community
7-27 administrator to file within a designated period a verified, full,
8-1 and detailed inventory and appraisement of the incapacitated
8-2 spouse's part of the community estate being managed by the
8-3 community administrator. An inventory and appraisement required
8-4 under this subsection must be prepared in the same form and manner
8-5 that is required of a guardian under Section 729 of this code.
8-6 (b) At any time after the expiration of 15 months after the
8-7 date that a community administrator's spouse is judicially declared
8-8 to be incapacitated, a person interested in the community estate
8-9 may demand from the community administrator an accounting of the
8-10 incapacitated spouse's part of the community estate. An accounting
8-11 demanded under this subsection must be prepared in the same form
8-12 and manner that is required of a guardian under Section 741 of
8-13 this code, except that the requirement that an accounting be filed
8-14 annually with the county clerk does not apply.
8-15 (c) A community administrator shall comply with a demand for
8-16 an accounting made under Subsection (b) of this section not later
8-17 than the 60th day after the date on which the community
8-18 administrator receives the demand.
8-19 (d) After an initial accounting has been given by a
8-20 community administrator under Subsection (b) of this section, a
8-21 person interested in the community estate, for good cause shown,
8-22 may request from the court subsequent periodic accountings at
8-23 intervals of not less than 12 months.
8-24 Sec. 883C. REMOVAL OF COMMUNITY ADMINISTRATOR. (a) A
8-25 court, on its own motion or on the motion of a person interested in
8-26 the community estate and after the community administrator has been
8-27 cited by personal service to answer at a time and place specified
9-1 in the notice, may remove a community administrator when:
9-2 (1) the community administrator fails to return:
9-3 (A) an inventory and appraisement of the
9-4 property of the estate within the time ordered by the court under
9-5 Section 883B(a) of this code;
9-6 (B) an initial accounting within the period
9-7 prescribed by Section 883B(c) of this code; or
9-8 (C) a subsequent accounting within the period
9-9 ordered by the court under Section 883B(d) of this code;
9-10 (2) sufficient grounds appear to support belief that
9-11 the community administrator has misapplied or embezzled, or that
9-12 the community administrator is about to misapply or embezzle, all
9-13 or any part of the property committed to the care of the community
9-14 administrator;
9-15 (3) the community administrator is proved to have been
9-16 guilty of gross misconduct or gross mismanagement in the
9-17 performance of duties as community administrator; or
9-18 (4) the community administrator becomes an
9-19 incapacitated person, is sentenced to the penitentiary, or for any
9-20 other reason becomes legally incapacitated from properly performing
9-21 the community administrator's fiduciary duties.
9-22 (b) The order of removal must state the cause of removal and
9-23 shall direct by order the disposition of the assets remaining in
9-24 the name or under the control of the removed community
9-25 administrator.
9-26 (c) A community administrator who defends an action for the
9-27 removal of the community administrator in good faith, regardless of
10-1 whether successful, is entitled to recover from the incapacitated
10-2 spouse's part of the community estate the community administrator's
10-3 necessary expenses and disbursements in the removal proceedings,
10-4 including reasonable attorney's fees.
10-5 SECTION 5. Section 884, Texas Probate Code, is amended to
10-6 read as follows:
10-7 Sec. 884. DELIVERY TO SPOUSE. A guardian of the estate of
10-8 an incapacitated married person who, as guardian, is administering
10-9 community property as part of the estate of the ward, shall deliver
10-10 on demand the community property to the spouse who is not
10-11 incapacitated if the spouse acquires full power to manage, control,
10-12 and dispose of the entire community estate under Section 883 of
10-13 this code.
10-14 SECTION 6. This Act takes effect September 1, 1999, and
10-15 applies only to a spouse's motion to judicially declare the other
10-16 spouse incapacitated that is filed on or after that date. A
10-17 spouse's motion to judicially declare the other spouse
10-18 incapacitated that is filed before the effective date of this Act
10-19 is governed by the law in effect when the motion was filed, and the
10-20 former law is continued in effect for that purpose.
10-21 SECTION 7. The importance of this legislation and the
10-22 crowded condition of the calendars in both houses create an
10-23 emergency and an imperative public necessity that the
10-24 constitutional rule requiring bills to be read on three several
10-25 days in each house be suspended, and this rule is hereby suspended.