1-1 By: Naishtat (Senate Sponsor - Wentworth) H.B. No. 3337
1-2 (In the Senate - Received from the House April 26, 1999;
1-3 April 27, 1999, read first time and referred to Committee on
1-4 Jurisprudence; May 11, 1999, reported favorably by the following
1-5 vote: Yeas 3, Nays 0; May 11, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to guardianships for missing persons.
1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10 SECTION 1. Section 3(p), Texas Probate Code, is amended to
1-11 read as follows:
1-12 (p) "Incapacitated" or "Incapacitated person" means:
1-13 (1) a minor;
1-14 (2) an adult individual who, because of a physical or
1-15 mental condition, is substantially unable to provide food,
1-16 clothing, or shelter for himself or herself, to care for the
1-17 individual's own physical health, or to manage the individual's own
1-18 financial affairs; or
1-19 (3) [a missing person; or]
1-20 [(4)] a person who must have a guardian appointed to
1-21 receive funds due the person from any governmental source.
1-22 SECTION 2. Section 601, Texas Probate Code, is amended to
1-23 read as follows:
1-24 Sec. 601. DEFINITIONS. In this chapter:
1-25 (1) "Attorney ad litem" means an attorney who is
1-26 appointed by a court to represent and advocate on behalf of a
1-27 proposed ward, an incapacitated person, or an unborn person in a
1-28 guardianship proceeding.
1-29 (2) "Authorized corporate surety" means a domestic or
1-30 foreign corporation authorized to do business in this state to
1-31 issue surety, guaranty, or indemnity bonds guaranteeing the
1-32 fidelity of guardians.
1-33 (3) "Child" includes a biological or adopted child,
1-34 whether adopted by a parent under a statutory procedure or by acts
1-35 of estoppel.
1-36 (4) "Claims" includes a liability against the estate
1-37 of a minor or an incapacitated person and debts due to the estate
1-38 of a minor or an incapacitated person.
1-39 (5) "Corporate fiduciary" means a trust company or
1-40 bank having trust powers, existing or doing business under the laws
1-41 of this state or of the United States, that is authorized by law to
1-42 act under the order or appointment of any court of record, without
1-43 giving bond, as a guardian, receiver, trustee, executor, or
1-44 administrator, or, although without general depository powers, as a
1-45 depository for any money paid into court, or to become sole
1-46 guarantor or surety in or on any bond required to be given under
1-47 the laws of this state.
1-48 (6) "Court investigator" means a person appointed by a
1-49 statutory probate court under Section 25.0025, Government Code.
1-50 (7) "Court" or "probate court" means a county court in
1-51 the exercise of its probate jurisdiction, a court created by
1-52 statute and authorized to exercise original probate jurisdiction,
1-53 or a district court exercising original probate jurisdiction in
1-54 contested matters.
1-55 (8) "Estate" or "guardianship estate" means the real
1-56 and personal property of a ward or deceased ward, both as the
1-57 property originally existed and as has from time to time changed in
1-58 form by sale, reinvestment, or otherwise, and as augmented by any
1-59 accretions and additions to (including any property to be
1-60 distributed to the representative of the deceased ward by the
1-61 trustee of a trust that terminates on the ward's death) or
1-62 substitutions for the property, and as diminished by any decreases
1-63 to or distributions from the property.
1-64 (9) "Exempt property" refers to that property of a
2-1 deceased ward's estate that is exempt from execution or forced sale
2-2 by the constitution or laws of this state, and to the allowance in
2-3 lieu of the property.
2-4 (10) "Guardian" means a person who is appointed
2-5 guardian under Section 693 of this code, or a temporary or
2-6 successor guardian. Except as expressly provided otherwise,
2-7 "guardian" includes the guardian of the estate and the guardian of
2-8 the person of an incapacitated person.
2-9 (11) "Guardian ad litem" means a person who is
2-10 appointed by a court to represent the best interests of an
2-11 incapacitated person in a guardianship proceeding.
2-12 (12) "Guardianship program" means a local, county, or
2-13 regional program that provides guardianship and related services to
2-14 an incapacitated person or other person who needs assistance in
2-15 making decisions concerning the person's own welfare or financial
2-16 affairs.
2-17 (13) "Incapacitated person" means:
2-18 (A) a minor;
2-19 (B) an adult individual who, because of a
2-20 physical or mental condition, is substantially unable to provide
2-21 food, clothing, or shelter for himself or herself, to care for the
2-22 individual's own physical health, or to manage the individual's own
2-23 financial affairs; or
2-24 (C) [a missing person; or]
2-25 [(D)] a person who must have a guardian
2-26 appointed to receive funds due the person from any governmental
2-27 source.
2-28 (14) "Interested persons" or "persons interested"
2-29 means an heir, devisee, spouse, creditor, or any other person
2-30 having a property right in, or claim against, the estate being
2-31 administered or a person interested in the welfare of an
2-32 incapacitated person, including a minor.
2-33 (15) "Minor" means a person who is younger than 18
2-34 years of age and who has never been married or who has not had the
2-35 person's disabilities of minority removed for general purposes.
2-36 (16) "Minutes" means the guardianship minutes.
2-37 (17) ["Missing person" has the meaning assigned by
2-38 Section 79.001, Human Resources Code.]
2-39 [(18)] "Mortgage" or "lien" includes a deed of trust;
2-40 vendor's lien; chattel mortgage; mechanic's, materialman's, or
2-41 laborer's lien; judgment, attachment, or garnishment lien; pledge
2-42 by hypothecation; and a federal or state tax lien.
2-43 (18) [(19)] "Next of kin" includes an adopted child,
2-44 the descendants of an adopted child, and the adoptive parent of an
2-45 adopted child.
2-46 (19) [(20)] "Parent" means the mother of a child, a
2-47 man presumed to be the biological father of a child, a man who has
2-48 been adjudicated to be the biological father of a child by a court
2-49 of competent jurisdiction, or an adoptive mother or father of a
2-50 child, but does not include a parent as to whom the parent-child
2-51 relationship has been terminated.
2-52 (20) [(21)] "Person" includes natural persons,
2-53 corporations, and guardianship programs.
2-54 (21) [(22)] "Personal property" includes an interest
2-55 in goods, money, choses in action, evidence of debts, and chattels
2-56 real.
2-57 (22) [(23)] "Personal representative" or
2-58 "representative" includes a guardian, and a successor guardian.
2-59 (23) [(24)] "Private professional guardian" means a
2-60 person, other than an attorney or a corporate fiduciary, who is
2-61 engaged in the business of providing guardianship services.
2-62 (24) [(25)] "Proceedings in guardianship,"
2-63 "guardianship matter," "guardianship matters," "guardianship
2-64 proceeding," and "proceedings for guardianship" are synonymous and
2-65 include a matter or proceeding relating to a guardianship or any
2-66 other matter addressed by this chapter.
2-67 (25) [(26)] "Property" includes both real and personal
2-68 property.
2-69 (26) [(27)] "Proposed ward" means a person alleged to
3-1 be incapacitated in a guardianship proceeding.
3-2 (27) [(28)] "Real property" includes estates and
3-3 interests in lands, corporeal or incorporeal, legal or equitable,
3-4 other than chattels real.
3-5 (28) [(29)] "Statutory probate court" means a
3-6 statutory court designated as a statutory probate court under
3-7 Chapter 25, Government Code. A county court at law exercising
3-8 probate jurisdiction is not a statutory probate court under this
3-9 chapter unless the court is designated a statutory probate court
3-10 under Chapter 25, Government Code.
3-11 (29) [(30)] "Surety" includes a personal and a
3-12 corporate surety.
3-13 (30) [(31)] "Ward" is a person for whom a guardian has
3-14 been appointed.
3-15 (31) [(32)] The singular number includes the plural;
3-16 the plural number includes the singular.
3-17 (32) [(33)] The masculine gender includes the feminine
3-18 and neuter.
3-19 SECTION 3. Section 633(c), Texas Probate Code, is amended to
3-20 read as follows:
3-21 (c) The sheriff or other officer shall personally serve
3-22 citation to appear and answer the application for guardianship on:
3-23 (1) a proposed ward who is 12 years of age or older;
3-24 (2) the parents of a proposed ward if the whereabouts
3-25 of the parents are known or can be reasonably ascertained;
3-26 (3) any court-appointed conservator or person having
3-27 control of the care and welfare of the proposed ward; and
3-28 (4) a proposed ward's spouse[; and]
3-29 [(5) an attorney ad litem or guardian ad litem
3-30 appointed to represent the interests of a missing person].
3-31 SECTION 4. Section 646(a), Texas Probate Code, is amended to
3-32 read as follows:
3-33 (a) In a proceeding under this chapter for the appointment
3-34 of a guardian [for a person other than a missing person], the court
3-35 shall appoint an attorney ad litem to represent the interests of
3-36 the proposed ward. The attorney shall be supplied with copies of
3-37 all of the current records in the case and may have access to all
3-38 of the proposed ward's relevant medical, psychological, and
3-39 intellectual testing records.
3-40 SECTION 5. Section 684(c), Texas Probate Code, is amended to
3-41 read as follows:
3-42 (c) The court may not grant an application to create a
3-43 guardianship unless the applicant proves each element required by
3-44 this code. A determination of incapacity of an adult proposed
3-45 ward, other than [a missing person or] a person who must have a
3-46 guardian appointed to receive funds due the person from any
3-47 governmental source, must be evidenced by recurring acts or
3-48 occurrences within the preceding six-month period and not by
3-49 isolated instances of negligence or bad judgment.
3-50 SECTION 6. Sections 685(a) and (c), Texas Probate Code, are
3-51 amended to read as follows:
3-52 (a) A proposed ward [other than a missing person] must be
3-53 present at a hearing to appoint a guardian unless the court, on the
3-54 record or in the order, determines that a personal appearance is
3-55 not necessary. The court may close the hearing if the proposed
3-56 ward or the proposed ward's counsel requests a closed hearing.
3-57 (c) At the hearing, the court shall:
3-58 (1) inquire into the ability of any allegedly
3-59 incapacitated adult person to feed, clothe, and shelter himself or
3-60 herself, to care for the individual's own physical health, and to
3-61 manage the individual's property or financial affairs;
3-62 (2) ascertain the age of any proposed ward who is a
3-63 minor;
3-64 (3) inquire into the governmental reports for any
3-65 [missing person or] person who must have a guardian appointed to
3-66 receive funds due the person from any governmental source; and
3-67 (4) inquire into the qualifications, abilities, and
3-68 capabilities of the person seeking to be appointed guardian.
3-69 SECTION 7. Section 686(a), Texas Probate Code, is amended to
4-1 read as follows:
4-2 (a) Before a hearing may be held for the appointment of a
4-3 guardian, current and relevant medical, psychological, and
4-4 intellectual testing records of the proposed ward must be provided
4-5 to the attorney ad litem appointed to represent the proposed ward
4-6 unless:
4-7 (1) the proposed ward is a minor[, a missing person,]
4-8 or a person who must have a guardian appointed to receive funds due
4-9 the person from any governmental source; or
4-10 (2) the court makes a finding on the record that no
4-11 current or relevant records exist and examining the proposed ward
4-12 for the purpose of creating the records is impractical.
4-13 SECTION 8. Section 687(a), Texas Probate Code, is amended to
4-14 read as follows:
4-15 (a) The court may not grant an application to create a
4-16 guardianship for an incapacitated person, other than a minor,
4-17 [missing person,] person whose alleged incapacity is mental
4-18 retardation, or person for whom it is necessary to have a guardian
4-19 appointed only to receive funds from a governmental source, unless
4-20 the applicant presents to the court a written letter or certificate
4-21 from a physician licensed in this state that is dated not earlier
4-22 than the 120th day before the date of the filing of the application
4-23 and based on an examination the physician performed not earlier
4-24 than the 120th day before the date of the filing of the
4-25 application. The letter or certificate must:
4-26 (1) describe the nature and degree of incapacity,
4-27 including the medical history if reasonably available;
4-28 (2) provide a medical prognosis specifying the
4-29 estimated severity of the incapacity;
4-30 (3) state how or in what manner the proposed ward's
4-31 ability to make or communicate responsible decisions concerning
4-32 himself or herself is affected by the person's physical or mental
4-33 health;
4-34 (4) state whether any current medication affects the
4-35 demeanor of the proposed ward or the proposed ward's ability to
4-36 participate fully in a court proceeding;
4-37 (5) describe the precise physical and mental
4-38 conditions underlying a diagnosis of senility, if applicable; and
4-39 (6) include any other information required by the
4-40 court.
4-41 SECTION 9. Section 694(b), Texas Probate Code, is amended to
4-42 read as follows:
4-43 (b) The [Subject to Subsection (f) of this section, the]
4-44 guardianship shall be settled and closed when the incapacitated
4-45 person:
4-46 (1) dies and, if the person was married, the person's
4-47 spouse qualifies as survivor in community;
4-48 (2) is found by the court to have full capacity to
4-49 care for himself or herself and to manage the person's property;
4-50 (3) is no longer a minor; or
4-51 (4) [if the person was a missing person and:]
4-52 [(A) has been confirmed dead;]
4-53 [(B) is legally declared dead under applicable
4-54 statutes;]
4-55 [(C) returns;]
4-56 [(D) has had the person's whereabouts
4-57 determined; or]
4-58 [(E) no longer needs a guardianship; or]
4-59 [(5)] no longer must have a guardian appointed to
4-60 receive funds due the person from any governmental source.
4-61 SECTION 10. Sections 610(d) and 694(f), Texas Probate Code,
4-62 are repealed.
4-63 SECTION 11. (a) This Act takes effect September 1, 1999.
4-64 (b) A guardianship for a missing person created under
4-65 Chapter XIII, Texas Probate Code, before September 1, 1999, is
4-66 abolished on the effective date of this Act.
4-67 (c) On its own motion or on the motion of a person
4-68 interested in the estate of the missing person, a court with
4-69 jurisdiction to appoint a receiver for a missing person may convert
5-1 a guardianship for a missing person abolished under this Act to a
5-2 receivership:
5-3 (1) under Section 79.017, Human Resources Code, as
5-4 added by Chapter 1376, Acts of the 75th Legislature, Regular
5-5 Session, 1997, and editorially redesignated as Article 62.023, Code
5-6 of Criminal Procedure; or
5-7 (2) under Section 886, Texas Probate Code.
5-8 SECTION 12. The importance of this legislation and the
5-9 crowded condition of the calendars in both houses create an
5-10 emergency and an imperative public necessity that the
5-11 constitutional rule requiring bills to be read on three several
5-12 days in each house be suspended, and this rule is hereby suspended.
5-13 * * * * *