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.