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.