By Hartnett                                           H.B. No. 3310
         76R5670 CLG-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to guardianships and other related matters concerning
 1-3     incapacitated persons.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Section 665(a), Texas Probate Code, is amended to
 1-6     read as follows:
 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 or other funds available for
1-10     that purpose.  The court shall set the compensation in an amount
1-11     not exceeding five percent of the ward's gross income.  In
1-12     determining whether to authorize compensation for a guardian under
1-13     this section, the court shall consider the ward's monthly income
1-14     from all sources and whether the ward receives medical assistance
1-15     under the state Medicaid program.
1-16           SECTION 2.  Section 687(b), Texas Probate Code, is amended to
1-17     read as follows:
1-18           (b)  Except as provided by Subsection (c) of this section, if
1-19     the court determines it is necessary, the court may appoint the
1-20     necessary physicians to examine the proposed ward.  Unless the
1-21     court determines that an emergency examination is necessary, the
1-22     court must make its determination with respect to the necessity for
1-23     a physician's examination of the proposed ward at a hearing held
1-24     for that purpose.  Not later than the fourth day before the date of
 2-1     the hearing, the court shall give to the proposed ward written
 2-2     notice specifying the purpose and the date and time of the hearing.
 2-3     A physician who examines the proposed ward, other than a physician
 2-4     or psychologist who examines the proposed ward under Subsection (c)
 2-5     of this section, shall make available to an attorney ad litem
 2-6     appointed to represent the proposed ward, for inspection, a written
 2-7     letter or certificate from the physician that complies with the
 2-8     requirements of Subsection (a) of this section.
 2-9           SECTION 3.  Section 690, Texas Probate Code, is amended to
2-10     read as follows:
2-11           Sec. 690.  ONE PERSON [PERSONS] APPOINTED GUARDIAN; JOINT
2-12     GUARDIANS.  (a)  Only one person may be appointed as guardian of
2-13     the person or estate, but one person may be appointed guardian of
2-14     the person and another of the estate, if it is in the best interest
2-15     of the ward.
2-16           (b)  Nothing in this section prohibits the joint appointment
2-17     of a husband and wife, of joint managing conservators, or of
2-18     coguardians appointed under the laws of a jurisdiction other than
2-19     this state.  The joint appointment of a husband and wife as
2-20     guardians of the person or estate does not terminate solely because
2-21     of the dissolution of the joint guardians' marriage.
2-22           SECTION 4.  Section 761, Texas Probate Code, is amended to
2-23     read as follows:
2-24           Sec. 761.  REMOVAL.  (a)  The court, on its own motion or on
2-25     motion of any interested person, including the ward, and without
2-26     notice, may remove any guardian, appointed under this chapter, who:
2-27                 (1)  neglects to qualify in the manner and time
 3-1     required by law;
 3-2                 (2)  fails to return within 90 days after
 3-3     qualification, unless the time is extended by order of the court,
 3-4     an inventory of the property of the guardianship estate and list of
 3-5     claims that have come to the guardian's knowledge;
 3-6                 (3)  having been required to give a new bond, fails to
 3-7     do so within the time prescribed;
 3-8                 (4)  absents himself from the state for a period of
 3-9     three months at one time without permission of the court, or
3-10     removes from the state;
3-11                 (5)  cannot be served with notices or other processes
3-12     because the guardian's whereabouts are unknown, or because the
3-13     guardian is eluding service;
3-14                 (6)  has misapplied, embezzled, or removed from the
3-15     state, or is about to misapply, embezzle, or remove from the state,
3-16     all or any part of the property committed to the guardian's care;
3-17     or
3-18                 (7)  has cruelly treated a ward, or has neglected to
3-19     educate or maintain the ward as liberally as the means of the ward
3-20     and the condition of the ward's estate permit.
3-21           (b)  The court may remove a personal representative under
3-22     Subsection (a)(6) or (7) of this section only on the presentation
3-23     of clear and convincing evidence given under oath.
3-24           (c)  The court may remove a guardian on its own motion, or on
3-25     the complaint of an interested person, after the guardian has been
3-26     cited by personal service to answer at a time and place set in the
3-27     notice, when:
 4-1                 (1)  sufficient grounds appear to support belief that
 4-2     the guardian has misapplied, embezzled, or removed from the state,
 4-3     or that the guardian is about to misapply, embezzle, or remove from
 4-4     the state, all or any part of the property committed to the care of
 4-5     the guardian;
 4-6                 (2)  the guardian fails to return any account or report
 4-7     that is required by law to be made;
 4-8                 (3)  the guardian fails to obey any proper order of the
 4-9     court having jurisdiction with respect to the performance of the
4-10     guardian's duties;
4-11                 (4)  the guardian is proved to have been guilty of
4-12     gross misconduct or mismanagement in the performance of the duties
4-13     of the guardian;
4-14                 (5)  the guardian becomes incapacitated, or is
4-15     sentenced to the penitentiary, or from any other cause becomes
4-16     incapable of properly performing the duties of the guardian's
4-17     trust;
4-18                 (6)  as guardian of the person, the guardian cruelly
4-19     treats the ward, or neglects to educate or maintain the ward as
4-20     liberally as the means of the ward's estate and the ward's ability
4-21     or condition permit;
4-22                 (7)  the guardian interferes with the ward's progress
4-23     or participation in programs in the community; [or]
4-24                 (8)  the guardian fails to comply with the requirements
4-25     of Section 697 of this code; or
4-26                 (9)  the court determines that, because of the
4-27     dissolution of the joint guardians' marriage, the termination of
 5-1     the guardians' joint appointment and the continuation of only one
 5-2     of the joint guardians as the sole guardian is in the best interest
 5-3     of the ward.
 5-4           (d)  The order of removal shall state the cause of the
 5-5     removal.  It must require that any letters issued to the person who
 5-6     is removed shall, if the removed person has been personally served
 5-7     with citation, be surrendered and that all those letters be
 5-8     cancelled of record, whether or not delivered.  It must further
 5-9     require, as to all the estate remaining in the hands of a removed
5-10     person, delivery of the estate to the person or persons entitled to
5-11     the estate, or to one who has been appointed and has qualified as
5-12     successor guardian, and as to the person of a ward, that control be
5-13     relinquished as required in the order.
5-14           (e)  If a joint guardian is removed under Subsection (c)(9)
5-15     of this section, the other joint guardian is entitled to continue
5-16     to serve as the sole guardian unless removed for a reason other
5-17     than the dissolution of the joint guardians' marriage.
5-18           (f)  If the necessity exists, the court may immediately
5-19     appoint a successor but may not discharge the person removed as
5-20     guardian of the estate or release the person or the sureties on the
5-21     person's bond until final order or judgment is rendered on the
5-22     final account of the guardian.
5-23           (g) [(f)]  The court at any time may order a person removed
5-24     as guardian under this section who has all or part of the estate of
5-25     a ward to deliver all or part of the ward's estate to a person who
5-26     has been appointed and has qualified as successor guardian.
5-27           SECTION 5.  Section 867, Texas Probate Code, is amended to
 6-1     read as follows:
 6-2           Sec. 867.  CREATION OF MANAGEMENT TRUST.  On application by
 6-3     the guardian of a ward or by a ward's attorney ad litem or an
 6-4     incapacitated person's guardian ad litem at any time after the date
 6-5     of the ad litem's [attorney's] appointment under Section 646 or
 6-6     another provision of this code, the court in which the guardianship
 6-7     proceeding is pending may enter an order that creates for the
 6-8     ward's or incapacitated person's benefit a trust for the management
 6-9     of guardianship funds or funds of the incapacitated person's estate
6-10     if the court finds that the creation of the trust is in the ward's
6-11     or incapacitated person's best interests.  The order shall direct
6-12     the guardian or another person to deliver all or part of the assets
6-13     of the guardianship or estate to a trust company or a state or
6-14     national bank that has trust powers in this state.  The order shall
6-15     include terms, conditions, and limitations placed on the trust.
6-16     The court shall maintain the trust under the same cause number as
6-17     the guardianship proceeding.
6-18           SECTION 6.  Subpart N, Part 4, Chapter XIII, Texas Probate
6-19     Code, is amended by adding Section 867A to read as follows:
6-20           Sec. 867A.  MANAGEMENT TRUST FOR INCAPACITATED PERSON
6-21     REPRESENTED BY GUARDIAN AD LITEM IN LIEU OF GUARDIAN.  This subpart
6-22     applies to a trust created under Section 867 of this code for the
6-23     management of funds of an incapacitated person for whom a guardian
6-24     ad litem has been appointed under this code in lieu of a guardian
6-25     in the same manner and to the same extent as if the trust had been
6-26     created under that section to manage the guardianship funds of a
6-27     ward.
 7-1           SECTION 7.  (a)  The change in law made by this Act to
 7-2     Section 761, Texas Probate Code, applies only to a motion or
 7-3     complaint for the removal of a joint guardian made or filed after
 7-4     the effective date of this Act.
 7-5           (b)  A motion or complaint for the removal of a joint
 7-6     guardian made or filed before the effective date of this Act is
 7-7     covered by the law in effect when the motion or complaint was made
 7-8     or filed, and the former law is continued in effect for that
 7-9     purpose.
7-10           SECTION 8.  The change in law made by this Act to Section
7-11     687(b), Texas Probate Code, applies only to an application for the
7-12     appointment of a guardian that is filed on or after the effective
7-13     date of this Act.  An application for the appointment of a guardian
7-14     that is filed before the effective date of this Act is governed by
7-15     the law in effect on the date the application was filed, and that
7-16     law is continued in effect for that purpose.
7-17           SECTION 9.  This Act takes effect September 1, 1999.
7-18           SECTION 10.  The importance of this legislation and the
7-19     crowded condition of the calendars in both houses create an
7-20     emergency and an imperative public necessity that the
7-21     constitutional rule requiring bills to be read on three several
7-22     days in each house be suspended, and this rule is hereby suspended.