By Naishtat H.B. No. 3337
76R1986 KLA-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to guardianships for missing persons.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 3(p), Texas Probate Code, is amended to
1-5 read as follows:
1-6 (p) "Incapacitated" or "Incapacitated person" means:
1-7 (1) a minor;
1-8 (2) an adult individual who, because of a physical or
1-9 mental condition, is substantially unable to provide food,
1-10 clothing, or shelter for himself or herself, to care for the
1-11 individual's own physical health, or to manage the individual's own
1-12 financial affairs; or
1-13 (3) [a missing person; or]
1-14 [(4)] a person who must have a guardian appointed to
1-15 receive funds due the person from any governmental source.
1-16 SECTION 2. Section 601, Texas Probate Code, is amended to
1-17 read as follows:
1-18 Sec. 601. DEFINITIONS. In this chapter:
1-19 (1) "Attorney ad litem" means an attorney who is
1-20 appointed by a court to represent and advocate on behalf of a
1-21 proposed ward, an incapacitated person, or an unborn person in a
1-22 guardianship proceeding.
1-23 (2) "Authorized corporate surety" means a domestic or
1-24 foreign corporation authorized to do business in this state to
2-1 issue surety, guaranty, or indemnity bonds guaranteeing the
2-2 fidelity of guardians.
2-3 (3) "Child" includes a biological or adopted child,
2-4 whether adopted by a parent under a statutory procedure or by acts
2-5 of estoppel.
2-6 (4) "Claims" includes a liability against the estate
2-7 of a minor or an incapacitated person and debts due to the estate
2-8 of a minor or an incapacitated person.
2-9 (5) "Corporate fiduciary" means a trust company or
2-10 bank having trust powers, existing or doing business under the laws
2-11 of this state or of the United States, that is authorized by law to
2-12 act under the order or appointment of any court of record, without
2-13 giving bond, as a guardian, receiver, trustee, executor, or
2-14 administrator, or, although without general depository powers, as a
2-15 depository for any money paid into court, or to become sole
2-16 guarantor or surety in or on any bond required to be given under
2-17 the laws of this state.
2-18 (6) "Court investigator" means a person appointed by a
2-19 statutory probate court under Section 25.0025, Government Code.
2-20 (7) "Court" or "probate court" means a county court in
2-21 the exercise of its probate jurisdiction, a court created by
2-22 statute and authorized to exercise original probate jurisdiction,
2-23 or a district court exercising original probate jurisdiction in
2-24 contested matters.
2-25 (8) "Estate" or "guardianship estate" means the real
2-26 and personal property of a ward or deceased ward, both as the
2-27 property originally existed and as has from time to time changed in
3-1 form by sale, reinvestment, or otherwise, and as augmented by any
3-2 accretions and additions to (including any property to be
3-3 distributed to the representative of the deceased ward by the
3-4 trustee of a trust that terminates on the ward's death) or
3-5 substitutions for the property, and as diminished by any decreases
3-6 to or distributions from the property.
3-7 (9) "Exempt property" refers to that property of a
3-8 deceased ward's estate that is exempt from execution or forced sale
3-9 by the constitution or laws of this state, and to the allowance in
3-10 lieu of the property.
3-11 (10) "Guardian" means a person who is appointed
3-12 guardian under Section 693 of this code, or a temporary or
3-13 successor guardian. Except as expressly provided otherwise,
3-14 "guardian" includes the guardian of the estate and the guardian of
3-15 the person of an incapacitated person.
3-16 (11) "Guardian ad litem" means a person who is
3-17 appointed by a court to represent the best interests of an
3-18 incapacitated person in a guardianship proceeding.
3-19 (12) "Guardianship program" means a local, county, or
3-20 regional program that provides guardianship and related services to
3-21 an incapacitated person or other person who needs assistance in
3-22 making decisions concerning the person's own welfare or financial
3-23 affairs.
3-24 (13) "Incapacitated person" means:
3-25 (A) a minor;
3-26 (B) an adult individual who, because of a
3-27 physical or mental condition, is substantially unable to provide
4-1 food, clothing, or shelter for himself or herself, to care for the
4-2 individual's own physical health, or to manage the individual's own
4-3 financial affairs; or
4-4 (C) [a missing person; or]
4-5 [(D)] a person who must have a guardian
4-6 appointed to receive funds due the person from any governmental
4-7 source.
4-8 (14) "Interested persons" or "persons interested"
4-9 means an heir, devisee, spouse, creditor, or any other person
4-10 having a property right in, or claim against, the estate being
4-11 administered or a person interested in the welfare of an
4-12 incapacitated person, including a minor.
4-13 (15) "Minor" means a person who is younger than 18
4-14 years of age and who has never been married or who has not had the
4-15 person's disabilities of minority removed for general purposes.
4-16 (16) "Minutes" means the guardianship minutes.
4-17 (17) ["Missing person" has the meaning assigned by
4-18 Section 79.001, Human Resources Code.]
4-19 [(18)] "Mortgage" or "lien" includes a deed of trust;
4-20 vendor's lien; chattel mortgage; mechanic's, materialman's, or
4-21 laborer's lien; judgment, attachment, or garnishment lien; pledge
4-22 by hypothecation; and a federal or state tax lien.
4-23 (18) [(19)] "Next of kin" includes an adopted child,
4-24 the descendants of an adopted child, and the adoptive parent of an
4-25 adopted child.
4-26 (19) [(20)] "Parent" means the mother of a child, a
4-27 man presumed to be the biological father of a child, a man who has
5-1 been adjudicated to be the biological father of a child by a court
5-2 of competent jurisdiction, or an adoptive mother or father of a
5-3 child, but does not include a parent as to whom the parent-child
5-4 relationship has been terminated.
5-5 (20) [(21)] "Person" includes natural persons,
5-6 corporations, and guardianship programs.
5-7 (21) [(22)] "Personal property" includes an interest
5-8 in goods, money, choses in action, evidence of debts, and chattels
5-9 real.
5-10 (22) [(23)] "Personal representative" or
5-11 "representative" includes a guardian, and a successor guardian.
5-12 (23) [(24)] "Private professional guardian" means a
5-13 person, other than an attorney or a corporate fiduciary, who is
5-14 engaged in the business of providing guardianship services.
5-15 (24) [(25)] "Proceedings in guardianship,"
5-16 "guardianship matter," "guardianship matters," "guardianship
5-17 proceeding," and "proceedings for guardianship" are synonymous and
5-18 include a matter or proceeding relating to a guardianship or any
5-19 other matter addressed by this chapter.
5-20 (25) [(26)] "Property" includes both real and personal
5-21 property.
5-22 (26) [(27)] "Proposed ward" means a person alleged to
5-23 be incapacitated in a guardianship proceeding.
5-24 (27) [(28)] "Real property" includes estates and
5-25 interests in lands, corporeal or incorporeal, legal or equitable,
5-26 other than chattels real.
5-27 (28) [(29)] "Statutory probate court" means a
6-1 statutory court designated as a statutory probate court under
6-2 Chapter 25, Government Code. A county court at law exercising
6-3 probate jurisdiction is not a statutory probate court under this
6-4 chapter unless the court is designated a statutory probate court
6-5 under Chapter 25, Government Code.
6-6 (29) [(30)] "Surety" includes a personal and a
6-7 corporate surety.
6-8 (30) [(31)] "Ward" is a person for whom a guardian has
6-9 been appointed.
6-10 (31) [(32)] The singular number includes the plural;
6-11 the plural number includes the singular.
6-12 (32) [(33)] The masculine gender includes the feminine
6-13 and neuter.
6-14 SECTION 3. Section 633(c), Texas Probate Code, is amended to
6-15 read as follows:
6-16 (c) The sheriff or other officer shall personally serve
6-17 citation to appear and answer the application for guardianship on:
6-18 (1) a proposed ward who is 12 years of age or older;
6-19 (2) the parents of a proposed ward if the whereabouts
6-20 of the parents are known or can be reasonably ascertained;
6-21 (3) any court-appointed conservator or person having
6-22 control of the care and welfare of the proposed ward; and
6-23 (4) a proposed ward's spouse[; and]
6-24 [(5) an attorney ad litem or guardian ad litem
6-25 appointed to represent the interests of a missing person].
6-26 SECTION 4. Section 646(a), Texas Probate Code, is amended to
6-27 read as follows:
7-1 (a) In a proceeding under this chapter for the appointment
7-2 of a guardian [for a person other than a missing person], the court
7-3 shall appoint an attorney ad litem to represent the interests of
7-4 the proposed ward. The attorney shall be supplied with copies of
7-5 all of the current records in the case and may have access to all
7-6 of the proposed ward's relevant medical, psychological, and
7-7 intellectual testing records.
7-8 SECTION 5. Section 684(c), Texas Probate Code, is amended to
7-9 read as follows:
7-10 (c) The court may not grant an application to create a
7-11 guardianship unless the applicant proves each element required by
7-12 this code. A determination of incapacity of an adult proposed
7-13 ward, other than [a missing person or] a person who must have a
7-14 guardian appointed to receive funds due the person from any
7-15 governmental source, must be evidenced by recurring acts or
7-16 occurrences within the preceding six-month period and not by
7-17 isolated instances of negligence or bad judgment.
7-18 SECTION 6. Sections 685(a) and (c), Texas Probate Code, are
7-19 amended to read as follows:
7-20 (a) A proposed ward [other than a missing person] must be
7-21 present at a hearing to appoint a guardian unless the court, on the
7-22 record or in the order, determines that a personal appearance is
7-23 not necessary. The court may close the hearing if the proposed
7-24 ward or the proposed ward's counsel requests a closed hearing.
7-25 (c) At the hearing, the court shall:
7-26 (1) inquire into the ability of any allegedly
7-27 incapacitated adult person to feed, clothe, and shelter himself or
8-1 herself, to care for the individual's own physical health, and to
8-2 manage the individual's property or financial affairs;
8-3 (2) ascertain the age of any proposed ward who is a
8-4 minor;
8-5 (3) inquire into the governmental reports for any
8-6 [missing person or] person who must have a guardian appointed to
8-7 receive funds due the person from any governmental source; and
8-8 (4) inquire into the qualifications, abilities, and
8-9 capabilities of the person seeking to be appointed guardian.
8-10 SECTION 7. Section 686(a), Texas Probate Code, is amended to
8-11 read as follows:
8-12 (a) Before a hearing may be held for the appointment of a
8-13 guardian, current and relevant medical, psychological, and
8-14 intellectual testing records of the proposed ward must be provided
8-15 to the attorney ad litem appointed to represent the proposed ward
8-16 unless:
8-17 (1) the proposed ward is a minor[, a missing person,]
8-18 or a person who must have a guardian appointed to receive funds due
8-19 the person from any governmental source; or
8-20 (2) the court makes a finding on the record that no
8-21 current or relevant records exist and examining the proposed ward
8-22 for the purpose of creating the records is impractical.
8-23 SECTION 8. Section 687(a), Texas Probate Code, is amended to
8-24 read as follows:
8-25 (a) The court may not grant an application to create a
8-26 guardianship for an incapacitated person, other than a minor,
8-27 [missing person,] person whose alleged incapacity is mental
9-1 retardation, or person for whom it is necessary to have a guardian
9-2 appointed only to receive funds from a governmental source, unless
9-3 the applicant presents to the court a written letter or certificate
9-4 from a physician licensed in this state that is dated not earlier
9-5 than the 120th day before the date of the filing of the application
9-6 and based on an examination the physician performed not earlier
9-7 than the 120th day before the date of the filing of the
9-8 application. The letter or certificate must:
9-9 (1) describe the nature and degree of incapacity,
9-10 including the medical history if reasonably available;
9-11 (2) provide a medical prognosis specifying the
9-12 estimated severity of the incapacity;
9-13 (3) state how or in what manner the proposed ward's
9-14 ability to make or communicate responsible decisions concerning
9-15 himself or herself is affected by the person's physical or mental
9-16 health;
9-17 (4) state whether any current medication affects the
9-18 demeanor of the proposed ward or the proposed ward's ability to
9-19 participate fully in a court proceeding;
9-20 (5) describe the precise physical and mental
9-21 conditions underlying a diagnosis of senility, if applicable; and
9-22 (6) include any other information required by the
9-23 court.
9-24 SECTION 9. Section 694(b), Texas Probate Code, is amended to
9-25 read as follows:
9-26 (b) The [Subject to Subsection (f) of this section, the]
9-27 guardianship shall be settled and closed when the incapacitated
10-1 person:
10-2 (1) dies and, if the person was married, the person's
10-3 spouse qualifies as survivor in community;
10-4 (2) is found by the court to have full capacity to
10-5 care for himself or herself and to manage the person's property;
10-6 (3) is no longer a minor; or
10-7 (4) [if the person was a missing person and:]
10-8 [(A) has been confirmed dead;]
10-9 [(B) is legally declared dead under applicable
10-10 statutes;]
10-11 [(C) returns;]
10-12 [(D) has had the person's whereabouts
10-13 determined; or]
10-14 [(E) no longer needs a guardianship; or]
10-15 [(5)] no longer must have a guardian appointed to
10-16 receive funds due the person from any governmental source.
10-17 SECTION 10. Sections 610(d) and 694(f), Texas Probate Code,
10-18 are repealed.
10-19 SECTION 11. (a) This Act takes effect September 1, 1999.
10-20 (b) A guardianship for a missing person created under
10-21 Chapter XIII, Texas Probate Code, before September 1, 1999, is
10-22 abolished on the effective date of this Act.
10-23 (c) On its own motion or on the motion of a person
10-24 interested in the estate of the missing person, a court with
10-25 jurisdiction to appoint a receiver for a missing person may convert
10-26 a guardianship for a missing person abolished under this Act to a
10-27 receivership:
11-1 (1) under Section 79.017, Human Resources Code, as
11-2 added by Chapter 1376, Acts of the 75th Legislature, Regular
11-3 Session, 1997, and editorially redesignated as Article 62.023, Code
11-4 of Criminal Procedure; or
11-5 (2) under Section 886, Texas Probate Code.
11-6 SECTION 12. The importance of this legislation and the
11-7 crowded condition of the calendars in both houses create an
11-8 emergency and an imperative public necessity that the
11-9 constitutional rule requiring bills to be read on three several
11-10 days in each house be suspended, and this rule is hereby suspended.