HBA-EDN, KDB H.B. 1132 77(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 1132
By: Thompson
Judicial Affairs
2/27/2001
Introduced



BACKGROUND AND PURPOSE 

Under current law, the appointment of a temporary or permanent guardian of
an estate automatically terminates the authority of an agent for the ward
to act under the ward's durable power of attorney.  This may be detrimental
to the ward if a temporary guardian is appointed but the court determines
that no permanent guardian is needed or if there is a limited need for a
guardian to act, but the court cannot authorize a guardian to take limited
actions without destroying the authority of the agent to act under the
power of attorney.  While a court may authorize compensation to a guardian
from the ward's estate, there is no provision regarding governmental funds
as an alternate source of compensation.  The surviving parent of a minor or
an adult incapacitated child is permitted to appoint someone, by will or
written declaration, to be guardian of the person of the parent's minor
children or adult incapacitated child after the death of the parent, but
not in the event of the surviving parent's subsequent incapacity.  There
are requirements for written declarations relating to adult incapacitated
children, but not for minor children.  A court is permitted to terminate
the guardianship of the estate of a minor ward, but only if the
guardianship assets are less than $25,000, whereas a county clerk is
permitted to hold property of a ward worth less than $50,000 without the
need for a guardianship.  A nonresident seeking guardianship is required to
file a designation of resident agent to accept service of process, but
there are no procedures for a guardian to appoint a successor resident
agent or a resident agent to resign.  A married couple may serve as joint
guardians of a minor, but a court is not authorized to name a sole guardian
upon dissolution of the marriage.  If a judicial determination of
incapacity is obtained, the spouse of the incapacitated person has the
right to manage the entire community property estate without court
supervision.  However, there are no procedures for times when the
management by the non-incapacitated spouse is called into question.  House
Bill 1132 modifies provisions relating to guardianships and other related
matters concerning incapacitated persons.                  

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

ANALYSIS

House Bill 1132 amends the Texas Probate Code to authorize the court if,
after execution of a durable power of attorney, a court of the principal's
domicile appoints a temporary guardian of the estate of the principal to
suspend the powers of the attorney in fact or agent on the qualification of
the temporary guardian of the estate until the date on which the term of
the temporary guardian expires.  The above provision may not be construed
as prohibiting the application for or issuance of a temporary restraining
order under applicable law.  The bill also provides that appointment of a
permanent guardian of the estate terminates the authority of an agent to
act under a power of attorney (Sec. 485). 

The bill provides that other funds available for compensating guardians, in
addition to the available funds of the ward's estate, may be used to
compensate a guardian or temporary guardian of a person (Sec. 665). The
bill also provides that a guardian may be appointed in the event of the
incapacitation of a parent (Secs. 676, 677, and 677A).  The bill increases
from $25,000 or less to $50,000 or less the amount of cash or  cash
equivalents for which the guardianship of an estate may be terminated and
the assets paid to the county clerk of the county in which the guardianship
proceeding is pending  (Sec.745). 

The bill modifies provisions regarding the requirements of the written
declaration appointing or designating an eligible person to be guardian of
the child and sets forth provisions regarding self-proving declarations and
affidavits (Secs. 677A, 677B, 679 and 679A).  

The bill sets forth provisions regarding the change of resident agent by a
guardian to accept service of process in a guardianship proceeding or other
matter relating to the guardianship by filing a statement and the content
of such a statement (Sec. 760A).  The bill sets forth provisions regarding
the resignation of a resident agent of a guardian by giving notice to the
guardian and filing with the court in which the guardianship proceeding is
pending a statement and also sets forth the content of such a statement
(Sec. 760B).  The bill modifies provisions regarding removal of any
appointed guardian under specified circumstances by the court (Sec. 761). 

The bill sets forth provisions regarding an in camera inspection of certain
instruments that are used for estate planning purposes and the requirements
for filing and sending an application for such an inspection.  The bill
also sets forth the hearing requirements for such an application (Sec.
865A). 

The bill deletes the provision that the written application for the
appointment of a temporary guardian must state the social security numbers
of the applicant and the proposed ward (Sec. 875). 

The bill modifies provisions regarding an incapacitated spouse to include
the administration of  the spouse's separate property.  The spouse who is
not incapacitated is presumed to be suitable and qualified to serve as
community administrator. The bill sets forth provisions regarding the
removal of the spouse who is not incapacitated as community administrator
and the appointment of a guardian of the estate for the incapacitated
spouse by the court under specified circumstances.  The bill also sets
forth the administration authority of such a guardian.  On a person's
removal as community administrator or on qualification of a guardian of the
estate of the person's incapacitated spouse, the bill requires a spouse who
is not incapacitated to continue to administer the person's own  separate
property and community property that is subject to the person's sole
management, control, and disposition.  This includes any community property
unless the person is required to deliver a portion of that community
property to the guardian of the estate of the person's incapacitated
spouse, in which event, the person is required to continue to administer
only the portion of the community property, and any income earned on
property the person is authorized to administer.  The bill provides that
the duties and obligations between spouses, including the duty to support
the other spouse, and the rights of any creditor of either spouse are not
affected by the manner in which community property is administered (Sec.
883). 

The bill sets forth provisions regarding the accounting, inventory, and
appraisement of community property by the community administrator to the
court and provides for the removal and the order of removal of a community
administrator (Secs.  883B and 883C).  The bill also sets forth provisions
regarding the appointment of an attorney ad litem to represent the interest
of an incapacitated spouse by the court (Sec. 883D). 

The bill requires a person, whose spouse is judicially declared to be
incapacitated and who acquires the power to manage, control, and dispose of
the entire community estate, to inform the court in writing of any suit
filed by or on behalf of this person that is a dissolution of the marriage
of the person and the person's incapacitated spouse, or names the
incapacitated spouse as a defendant (Sec. 884A). 

EFFECTIVE DATE
September 1, 2001.