By Thompson, Naishtat H.B. No. 1132
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 485, Texas Probate Code, is amended to
1-6 read as follows:
1-7 Sec. 485. RELATION OF ATTORNEY IN FACT OR AGENT TO
1-8 COURT-APPOINTED GUARDIAN OF ESTATE. (a) If, after execution of a
1-9 durable power of attorney, a court of the principal's domicile
1-10 appoints a permanent guardian of the estate of the principal, the
1-11 powers of the attorney in fact or agent terminate on the
1-12 qualification of the guardian of the estate, and the attorney in
1-13 fact or agent shall deliver to the guardian of the estate all
1-14 assets of the estate of the ward in the attorney's or agent's
1-15 possession and shall account to the guardian of the estate as the
1-16 attorney or agent would to the principal had the principal
1-17 terminated his powers.
1-18 (b) If, after execution of a durable power of attorney, a
1-19 court of the principal's domicile appoints a temporary guardian of
1-20 the estate of the principal, the court may suspend the powers of
1-21 the attorney in fact or agent on the qualification of the temporary
1-22 guardian of the estate until the date on which the term of the
1-23 temporary guardian expires.
1-24 (c) Subsection (b) of this section may not be construed to
2-1 prohibit the application for or issuance of a temporary restraining
2-2 order under applicable law.
2-3 SECTION 2. Section 601, Texas Probate Code, is amended to
2-4 read as follows:
2-5 Sec. 601. DEFINITIONS. In this chapter:
2-6 (1) "Attorney ad litem" means an attorney who is
2-7 appointed by a court to represent and advocate on behalf of a
2-8 proposed ward, an incapacitated person, or an unborn person in a
2-9 guardianship proceeding.
2-10 (2) "Authorized corporate surety" means a domestic or
2-11 foreign corporation authorized to do business in this state to
2-12 issue surety, guaranty, or indemnity bonds guaranteeing the
2-13 fidelity of guardians.
2-14 (3) "Child" includes a biological or adopted child,
2-15 whether adopted by a parent under a statutory procedure or by acts
2-16 of estoppel.
2-17 (4) "Claims" includes a liability against the estate
2-18 of a minor or an incapacitated person and debts due to the estate
2-19 of a minor or an incapacitated person.
2-20 (5) "Community administrator" means a spouse who is
2-21 authorized to manage, control, and dispose of the entire community
2-22 estate on the judicial declaration of incapacity of the other
2-23 spouse, including the part of the community estate that the other
2-24 spouse legally has the power to manage in the absence of the
2-25 incapacity.
2-26 (6) "Corporate fiduciary" means a financial
2-27 institution as defined by Section 201.101, Finance Code, having
3-1 trust powers, existing or doing business under the laws of this
3-2 state, another state, or the United States, that is authorized by
3-3 law to act under the order or appointment of any court of record,
3-4 without giving bond, as a guardian, receiver, trustee, executor, or
3-5 administrator, or, although without general depository powers, as a
3-6 depository for any money paid into court, or to become sole
3-7 guarantor or surety in or on any bond required to be given under
3-8 the laws of this state.
3-9 (7) [(6)] "Court investigator" means a person
3-10 appointed by a statutory probate court under Section 25.0025,
3-11 Government Code.
3-12 (8) [(7)] "Court" or "probate court" means a county
3-13 court in the exercise of its probate jurisdiction, a court created
3-14 by statute and authorized to exercise original probate
3-15 jurisdiction, or a district court exercising original probate
3-16 jurisdiction in contested matters.
3-17 (9) [(8)] "Estate" or "guardianship estate" means the
3-18 real and personal property of a ward or deceased ward, both as the
3-19 property originally existed and as has from time to time changed in
3-20 form by sale, reinvestment, or otherwise, and as augmented by any
3-21 accretions and additions to (including any property to be
3-22 distributed to the representative of the deceased ward by the
3-23 trustee of a trust that terminates on the ward's death) or
3-24 substitutions for the property, and as diminished by any decreases
3-25 to or distributions from the property.
3-26 (10) [(9)] "Exempt property" refers to that property
3-27 of a deceased ward's estate that is exempt from execution or forced
4-1 sale by the constitution or laws of this state, and to the
4-2 allowance in lieu of the property.
4-3 (11) [(10)] "Guardian" means a person who is appointed
4-4 guardian under Section 693 of this code, or a temporary or
4-5 successor guardian. Except as expressly provided otherwise,
4-6 "guardian" includes the guardian of the estate and the guardian of
4-7 the person of an incapacitated person.
4-8 (12) [(11)] "Guardian ad litem" means a person who is
4-9 appointed by a court to represent the best interests of an
4-10 incapacitated person in a guardianship proceeding.
4-11 (13) [(12)] "Guardianship program" means a local,
4-12 county, or regional program that provides guardianship and related
4-13 services to an incapacitated person or other person who needs
4-14 assistance in making decisions concerning the person's own welfare
4-15 or financial affairs.
4-16 (14) [(13)] "Incapacitated person" means:
4-17 (A) a minor;
4-18 (B) an adult individual who, because of a
4-19 physical or mental condition, is substantially unable to provide
4-20 food, clothing, or shelter for himself or herself, to care for the
4-21 individual's own physical health, or to manage the individual's own
4-22 financial affairs; or
4-23 (C) a person who must have a guardian appointed
4-24 to receive funds due the person from any governmental source.
4-25 (15) [(14)] "Interested persons" or "persons
4-26 interested" means an heir, devisee, spouse, creditor, or any other
4-27 person having a property right in, or claim against, the estate
5-1 being administered or a person interested in the welfare of an
5-2 incapacitated person, including a minor.
5-3 (16) [(15)] "Minor" means a person who is younger than
5-4 18 years of age and who has never been married or who has not had
5-5 the person's disabilities of minority removed for general purposes.
5-6 (17) [(16)] "Minutes" means the guardianship minutes.
5-7 (18) [(17)] "Mortgage" or "lien" includes a deed of
5-8 trust; vendor's lien; chattel mortgage; mechanic's,
5-9 materialman's, or laborer's lien; judgment, attachment, or
5-10 garnishment lien; pledge by hypothecation; and a federal or state
5-11 tax lien.
5-12 (19) [(18)] "Next of kin" includes an adopted child,
5-13 the descendants of an adopted child, and the adoptive parent of an
5-14 adopted child.
5-15 (20) [(19)] "Parent" means the mother of a child, a
5-16 man presumed to be the biological father of a child, a man who has
5-17 been adjudicated to be the biological father of a child by a court
5-18 of competent jurisdiction, or an adoptive mother or father of a
5-19 child, but does not include a parent as to whom the parent-child
5-20 relationship has been terminated.
5-21 (21) [(20)] "Person" includes natural persons,
5-22 corporations, and guardianship programs.
5-23 (22) [(21)] "Personal property" includes an interest
5-24 in goods, money, choses in action, evidence of debts, and chattels
5-25 real.
5-26 (23) [(22)] "Personal representative" or
5-27 "representative" includes a guardian, and a successor guardian.
6-1 (24) [(23)] "Private professional guardian" means a
6-2 person, other than an attorney or a corporate fiduciary, who is
6-3 engaged in the business of providing guardianship services.
6-4 (25) [(24)] "Proceedings in guardianship,"
6-5 "guardianship matter," "guardianship matters," "guardianship
6-6 proceeding," and "proceedings for guardianship" are synonymous and
6-7 include a matter or proceeding relating to a guardianship or any
6-8 other matter addressed by this chapter.
6-9 (26) [(25)] "Property" includes both real and personal
6-10 property.
6-11 (27) [(26)] "Proposed ward" means a person alleged to
6-12 be incapacitated in a guardianship proceeding.
6-13 (28) [(27)] "Real property" includes estates and
6-14 interests in lands, corporeal or incorporeal, legal or equitable,
6-15 other than chattels real.
6-16 (29) [(28)] "Statutory probate court" means a
6-17 statutory court designated as a statutory probate court under
6-18 Chapter 25, Government Code. A county court at law exercising
6-19 probate jurisdiction is not a statutory probate court under this
6-20 chapter unless the court is designated a statutory probate court
6-21 under Chapter 25, Government Code.
6-22 (30) [(29)] "Surety" includes a personal and a
6-23 corporate surety.
6-24 (31) [(30)] "Ward" is a person for whom a guardian has
6-25 been appointed.
6-26 (32) [(31)] The singular number includes the plural;
6-27 the plural number includes the singular.
7-1 (33) [(32)] The masculine gender includes the feminine
7-2 and neuter.
7-3 SECTION 3. Section 665(a), Texas Probate Code, is amended to
7-4 read as follows:
7-5 (a) The court may authorize compensation for a guardian or a
7-6 temporary guardian serving as a guardian of the person alone from
7-7 available funds of the ward's estate or other funds available for
7-8 that purpose. The court shall set the compensation in an amount
7-9 not exceeding five percent of the ward's gross income. In
7-10 determining whether to authorize compensation for a guardian under
7-11 this section, the court shall consider the ward's monthly income
7-12 from all sources and whether the ward receives medical assistance
7-13 under the state Medicaid program.
7-14 SECTION 4. Section 676, Texas Probate Code, is amended by
7-15 amending Subsection (d) and adding Subsections (e)-(g) to read as
7-16 follows:
7-17 (d) Notwithstanding Subsection (b) of this section and
7-18 Section 690 of this code, the [The] surviving parent of a minor may
7-19 by will or written declaration appoint any eligible person to be
7-20 guardian of the person of the parent's minor children after the
7-21 death of the parent or in the event of the parent's incapacity.
7-22 (e) After the death of the surviving parent of a minor or if
7-23 the court finds the surviving parent is an incapacitated person, as
7-24 appropriate [Unless the court finds that the person designated in
7-25 the will or declaration to serve as guardian of the person of the
7-26 parent's minor children is disqualified, is dead, refuses to serve,
7-27 or would not serve the best interests of the minor children], the
8-1 court shall appoint the person designated in the will or
8-2 declaration to serve as guardian of the person of the parent's
8-3 minor children in preference to those otherwise entitled to serve
8-4 as guardian under this chapter unless the court finds that the
8-5 designated guardian is disqualified, is dead, refuses to serve, or
8-6 would not serve the best interests of the minor children.
8-7 (f) On compliance with this code, an eligible person is also
8-8 entitled to be appointed guardian of the children's estates after
8-9 the death of the parent or in the event of the parent's incapacity.
8-10 (g) The powers of a person appointed to serve as the
8-11 designated guardian of the person or estate, or both, of a minor
8-12 child solely because of the incapacity of the minor's surviving
8-13 parent and in accordance with this section and Section 677A of this
8-14 code terminate when a probate court enters an order finding that
8-15 the surviving parent is no longer an incapacitated person.
8-16 SECTION 5. Section 677, Texas Probate Code, is amended by
8-17 amending Subsection (b) and adding Subsections (c)-(e) to read as
8-18 follows:
8-19 (b) The surviving parent of an adult individual who is an
8-20 incapacitated person[, because of a physical or mental condition,
8-21 is substantially unable to provide food, clothing, or shelter for
8-22 himself or herself, to care for the individual's own physical
8-23 health, or to manage the individual's own financial affairs,] may
8-24 by will or written declaration appoint an eligible person to be
8-25 guardian of the person of the adult individual after the parent's
8-26 death or in the event of the parent's incapacity if the parent is
8-27 the guardian of the person of the adult individual.
9-1 (c) After the death of the surviving parent of an adult
9-2 individual who is an incapacitated person or if the court finds the
9-3 surviving parent becomes an incapacitated person after being
9-4 appointed the individual's guardian, as appropriate [Unless the
9-5 court finds that the person designated in the will or declaration
9-6 to serve as guardian is disqualified, is dead, refuses to serve, or
9-7 would not serve the best interests of the adult individual], the
9-8 court shall appoint the person designated in the will or
9-9 declaration to serve as guardian in preference to those otherwise
9-10 entitled to serve as guardian under this chapter unless the court
9-11 finds that the designated guardian is disqualified, is dead,
9-12 refuses to serve, or would not serve the best interests of the
9-13 adult individual.
9-14 (d) On compliance with this code, the eligible person
9-15 appointed under this subsection is also entitled to be appointed
9-16 guardian of the adult individual's estate after the death of the
9-17 individual's parent or in the event of the parent's incapacity if
9-18 the individual's parent is the guardian of the individual's estate.
9-19 (e) The powers of a person appointed to serve as the
9-20 designated guardian of the person or estate, or both, of an adult
9-21 individual solely because of the incapacity of the individual's
9-22 surviving parent and in accordance with this section and Section
9-23 677A of this code terminate when a probate court enters an order
9-24 finding that the surviving parent is no longer an incapacitated
9-25 person and reappointing the surviving parent as the individual's
9-26 guardian.
9-27 SECTION 6. Section 677A, Texas Probate Code, is amended to
10-1 read as follows:
10-2 Sec. 677A. WRITTEN DECLARATIONS BY CERTAIN PARENTS TO
10-3 APPOINT GUARDIANS FOR THEIR CHILDREN. (a) A written declaration
10-4 appointing an eligible person to be guardian of the person of the
10-5 parent's child under Section 676(d) or 677(b) of this code must be
10-6 signed by the declarant and be:
10-7 (1) written wholly in the handwriting of the
10-8 declarant; or
10-9 (2) attested to in the presence of the declarant by at
10-10 least two credible witnesses 14 years of age or older who are not
10-11 named as guardian or alternate guardian in the declaration.
10-12 (b) A declaration that is not written wholly in the
10-13 handwriting of the declarant may be signed by another person for
10-14 the declarant under the direction of and in the presence of the
10-15 declarant.
10-16 (c) A declaration described by Subsection (a)(2) of this
10-17 section may [The declaration must] have attached a self-proving
10-18 affidavit signed by the declarant and the witnesses attesting to
10-19 the competence of the declarant and the execution of the
10-20 declaration. [A properly executed and witnessed declaration and
10-21 affidavit are prima facie evidence that the declarant was competent
10-22 at the time the declarant executed the declaration and that the
10-23 guardian named in the declaration would serve the best interests of
10-24 the ward.]
10-25 (d) [(c)] The declaration and any self-proving affidavit may
10-26 be filed with the court at any time after the application for
10-27 appointment of a guardian is filed and before a guardian is
11-1 appointed.
11-2 (e) If the designated guardian does not qualify, is dead,
11-3 refuses to serve, resigns, or dies after being appointed guardian,
11-4 or is otherwise unavailable to serve as guardian, the court shall
11-5 appoint the next eligible designated alternate guardian named in
11-6 the declaration. If the guardian and all alternate guardians do
11-7 not qualify, are dead, refuse to serve, or later die or resign, the
11-8 court shall appoint another person to serve as otherwise provided
11-9 by this code.
11-10 (f) [(d)] The declarant may revoke a declaration in any
11-11 manner provided for the revocation of a will under Section 63 of
11-12 this code, including the subsequent reexecution of the declaration
11-13 in the manner required for the original declaration.
11-14 (g) [(e)] A declaration and affidavit may be in any form
11-15 adequate to clearly indicate the declarant's intention to designate
11-16 a guardian for the declarant's child. The following form may, but
11-17 need not, be used:
11-18 DECLARATION OF APPOINTMENT OF GUARDIAN FOR MY CHILDREN IN THE EVENT
11-19 OF MY DEATH OR INCAPACITY
11-20 I, __________, make this Declaration to appoint as guardian
11-21 for my child or children, listed as follows, in the event of my
11-22 death or incapacity:
11-23 ______________________________ ______________________________
11-24 ______________________________ ______________________________
11-25 ______________________________ ______________________________
11-26 (add blanks as appropriate)
11-27 I designate __________ to serve as guardian of the person of
12-1 my (child or children), __________ as first alternate guardian of
12-2 the person of my (child or children), __________ as second
12-3 alternate guardian of the person of my (child or children), and
12-4 __________ as third alternate guardian of the person of my (child
12-5 or children).
12-6 I direct that the guardian of the person of my (child or
12-7 children) serve (with or without) bond.
12-8 (If applicable) I designate __________ to serve as guardian
12-9 of the estate of my (child or children), __________ as first
12-10 alternate guardian of the estate of my (child or children),
12-11 __________ as second alternate guardian of the estate of my (child
12-12 or children), and __________ as third alternate guardian of the
12-13 estate of my (child or children).
12-14 If any guardian or alternate guardian dies, does not qualify,
12-15 or resigns, the next named alternate guardian becomes guardian of
12-16 my (child or children).
12-17 Signed this __________ day of __________, 20__[19___].
12-18 ______________________________
12-19 Declarant
12-20 ______________________________ ______________________________
12-21 Witness Witness
12-22 SELF-PROVING AFFIDAVIT
12-23 Before me, the undersigned authority, on this date personally
12-24 appeared the declarant, and __________ and __________ as witnesses,
12-25 and all being duly sworn, the declarant said that the above
12-26 instrument was his or her Declaration of Appointment of Guardian
12-27 for the Declarant's Children in the Event of Declarant's Death or
13-1 Incapacity and that the declarant had made and executed it for the
13-2 purposes expressed in the declaration. The witnesses declared to
13-3 me that they are each 14 years of age or older, that they saw the
13-4 declarant sign the declaration, that they signed the declaration as
13-5 witnesses, and that the declarant appeared to them to be of sound
13-6 mind.
13-7 ______________________________
13-8 Declarant
13-9 ______________________________ ______________________________
13-10 Affiant Affiant
13-11 Subscribed and sworn to before me by the above named
13-12 declarant and affiants on this ___ day of __________, 20__ [19___].
13-13 ______________________________
13-14 Notary Public in and for the
13-15 State of Texas
13-16 My Commission expires:
13-17 ______________________________
13-18 (h) In this section, "self-proving affidavit" means an
13-19 affidavit the form and content of which substantially complies with
13-20 the requirements of Subsection (g) of this section.
13-21 SECTION 7. Subpart A, Part 3, Chapter XIII, Texas Probate
13-22 Code, is amended by adding Section 677B to read as follows:
13-23 Sec. 677B. PROOF OF WRITTEN DECLARATION OF CERTAIN PARENTS
13-24 TO DESIGNATE CHILDRENS' GUARDIAN. (a) In this section:
13-25 (1) "Declaration" means a written declaration of a
13-26 person that:
13-27 (A) appoints a guardian for the person's child
14-1 under Section 676(d) or 677(b) of this code; and
14-2 (B) satisfies the requirements of Section 677A
14-3 of this code.
14-4 (2) "Self-proving affidavit" means an affidavit the
14-5 form and content of which substantially complies with the
14-6 requirements of Section 677A(g) of this code.
14-7 (3) "Self-proving declaration" includes a self-proving
14-8 affidavit that is attached or annexed to a declaration.
14-9 (b) If a declaration is self-proved, the court may admit the
14-10 declaration into evidence without the testimony of witnesses
14-11 attesting to the competency of the declarant and the execution of
14-12 the declaration. Additional proof of the execution of the
14-13 declaration with the formalities and solemnities and under the
14-14 circumstances required to make it a valid declaration is not
14-15 necessary.
14-16 (c) At any time during the declarant's lifetime, a written
14-17 declaration described by Section 677A(a)(1) of this code may be
14-18 made self-proved in the same form and manner a will written wholly
14-19 in the handwriting of a testator is made self-proved under Section
14-20 60 of this code.
14-21 (d) A properly executed and witnessed self-proving
14-22 declaration and affidavit, including a declaration and affidavit
14-23 described by Section 677A(c) of this code, are prima facie evidence
14-24 that the declarant was competent at the time the declarant executed
14-25 the declaration and that the guardian named in the declaration
14-26 would serve the best interests of the ward.
14-27 (e) A written declaration described by Section 677A(a)(1) of
15-1 this code that is not self-proved may be proved in the same manner
15-2 a will written wholly in the handwriting of the testator is proved
15-3 under Section 84 of this code.
15-4 (f) A written declaration described by Section 677A(a)(2) of
15-5 this code that is not self-proved may be proved in the same manner
15-6 an attested written will produced in court is proved under Section
15-7 84 of this code.
15-8 SECTION 8. Section 679, Texas Probate Code, is amended to
15-9 read as follows:
15-10 Sec. 679. DESIGNATION OF GUARDIAN BEFORE NEED ARISES. (a)
15-11 A person other than an incapacitated person may designate by a
15-12 written declaration persons to serve as guardian of the person of
15-13 the declarant or the estate of the declarant if the declarant
15-14 becomes incapacitated. The declaration must be signed by the
15-15 declarant and be:
15-16 (1) written wholly in the handwriting of the
15-17 declarant; or
15-18 (2) attested to in the presence of the declarant by at
15-19 least two credible witnesses 14 years of age or older who are not
15-20 named as guardian or alternate guardian in the declaration.
15-21 (b) A declarant may, in the declaration, disqualify named
15-22 persons from serving as guardian of the declarant's person or
15-23 estate, and the persons named may not be appointed guardian under
15-24 any circumstances.
15-25 (c) A declaration that is not written wholly in the
15-26 handwriting of a declarant may be signed by another person for the
15-27 declarant under the direction of and in the presence of the
16-1 declarant.
16-2 (d) A declaration described by Subsection (a)(2) of this
16-3 section may [The declaration must] have attached a self-proving
16-4 affidavit signed by the declarant and the witnesses attesting to
16-5 the competence of the declarant and the execution of the
16-6 declaration. [A properly executed and witnessed declaration and
16-7 affidavit are prima facie evidence that the declarant was competent
16-8 at the time the declarant executed the declaration and that the
16-9 guardian named in the declaration would serve the best interests of
16-10 the ward.]
16-11 (e) [(d)] The declaration and any self-proving affidavit may
16-12 be filed with the court at any time after the application for
16-13 appointment of a guardian is filed and before a guardian is
16-14 appointed.
16-15 (f) Unless the court finds that the person designated in the
16-16 declaration to serve as guardian is disqualified or would not serve
16-17 the best interests of the ward, the court shall appoint the person
16-18 as guardian in preference to those otherwise entitled to serve as
16-19 guardian under this code. If the designated guardian does not
16-20 qualify, is dead, refuses to serve, resigns, or dies after being
16-21 appointed guardian, or is otherwise unavailable to serve as
16-22 guardian, the court shall appoint the next eligible designated
16-23 alternate guardian named in the declaration. If the guardian and
16-24 all alternate guardians do not qualify, are dead, refuse to serve,
16-25 or later die or resign, the court shall appoint another person to
16-26 serve as otherwise provided by this code.
16-27 (g) [(e)] The declarant may revoke a declaration in any
17-1 manner provided for the revocation of a will under Section 63 of
17-2 this code, including the subsequent reexecution of the declaration
17-3 in the manner required for the original declaration.
17-4 (h) [(f)] If a declarant designates the declarant's spouse
17-5 to serve as guardian under this section, and the declarant is
17-6 subsequently divorced from that spouse before a guardian is
17-7 appointed, the provision of the declaration designating the spouse
17-8 has no effect.
17-9 (i) [(g)] A declaration and affidavit may be in any form
17-10 adequate to clearly indicate the declarant's intention to designate
17-11 a guardian. The following form [forms] may, but need not, be used:
17-12 DECLARATION OF GUARDIAN IN THE EVENT OF LATER
17-13 INCAPACITY OR NEED OF GUARDIAN
17-14 I, __________, make this Declaration of Guardian, to operate
17-15 if the need for a guardian for me later arises.
17-16 1. I designate __________ to serve as guardian of my person,
17-17 __________ as first alternate guardian of my person, __________ as
17-18 second alternate guardian of my person, and __________ as third
17-19 alternate guardian of my person.
17-20 2. I designate __________ to serve as guardian of my estate,
17-21 __________ as first alternate guardian of my estate, __________ as
17-22 second alternate guardian of my estate, and __________ as third
17-23 alternate guardian of my estate.
17-24 3. If any guardian or alternate guardian dies, does not
17-25 qualify, or resigns, the next named alternate guardian becomes my
17-26 guardian.
17-27 4. I expressly disqualify the following persons from serving
18-1 as guardian of my person: __________, __________, and __________.
18-2 5. I expressly disqualify the following persons from serving
18-3 as guardian of my estate: __________, __________, and __________.
18-4 Signed this ___ day of __________, 20__ [19___].
18-5 ______________________________
18-6 Declarant
18-7 ______________________________ ______________________________
18-8 Witness Witness
18-9 SELF-PROVING AFFIDAVIT
18-10 Before me, the undersigned authority, on this date personally
18-11 appeared the declarant, and ____________ and ____________ as
18-12 witnesses, and all being duly sworn, the declarant said that the
18-13 above instrument was his or her Declaration of Guardian and that
18-14 the declarant had made and executed it for the purposes expressed
18-15 in the declaration. The witnesses declared to me that they are
18-16 each 14 years of age or older, that they saw the declarant sign the
18-17 declaration, that they signed the declaration as witnesses, and
18-18 that the declarant appeared to them to be of sound mind.
18-19 ______________________________
18-20 Declarant
18-21 ______________________________ ______________________________
18-22 Affiant Affiant
18-23 Subscribed and sworn to before me by the above named
18-24 declarant and affiants on this ____ day of __________, 20__ [19__].
18-25 _________________________
18-26 Notary Public in and for
18-27 the State of Texas
19-1 My Commission expires:
19-2 _________________________
19-3 (j) In this section, "self-proving affidavit" means an
19-4 affidavit the form and content of which substantially complies with
19-5 the requirements of Subsection (i) of this section.
19-6 SECTION 9. Subpart A, Part 3, Chapter XIII, Texas Probate
19-7 Code, is amended by adding Section 679A to read as follows:
19-8 Sec. 679A. PROOF OF WRITTEN DECLARATION TO DESIGNATE
19-9 GUARDIAN BEFORE NEED ARISES. (a) In this section:
19-10 (1) "Declaration" means a written declaration of a
19-11 person that:
19-12 (A) designates another person to serve as a
19-13 guardian of the person or estate of the declarant; and
19-14 (B) satisfies the requirements of Section 679 of
19-15 this code.
19-16 (2) "Self-proving affidavit" means an affidavit the
19-17 form and content of which substantially complies with the
19-18 requirements of Section 679(i) of this code.
19-19 (3) "Self-proving declaration" includes a self-proving
19-20 affidavit that is attached or annexed to a declaration.
19-21 (b) If a declaration is self-proved, the court may admit the
19-22 declaration into evidence without the testimony of witnesses
19-23 attesting to the competency of the declarant and the execution of
19-24 the declaration. Additional proof of the execution of the
19-25 declaration with the formalities and solemnities and under the
19-26 circumstances required to make it a valid declaration is not
19-27 necessary.
20-1 (c) At any time during the declarant's lifetime, a written
20-2 declaration described by Section 679(a)(1) of this code may be
20-3 made self-proved in the same form and manner a will written wholly
20-4 in the handwriting of a testator is made self-proved under Section
20-5 60 of this code.
20-6 (d) A properly executed and witnessed self-proving
20-7 declaration and affidavit, including a declaration and affidavit
20-8 described by Section 679(d) of this code, are prima facie evidence
20-9 that the declarant was competent at the time the declarant executed
20-10 the declaration and that the guardian named in the declaration
20-11 would serve the best interests of the ward.
20-12 (e) A written declaration described by Section 679(a)(1) of
20-13 this code that is not self-proved may be proved in the same manner
20-14 a will written wholly in the handwriting of the testator is proved
20-15 under Section 84 of this code.
20-16 (f) A written declaration described by Section 679(a)(2) of
20-17 this code that is not self-proved may be proved in the same manner
20-18 an attested written will produced in court is proved under Section
20-19 84 of this code.
20-20 SECTION 10. Section 702(b), Texas Probate Code, is amended
20-21 to read as follows:
20-22 (b) A bond is not required to be given by a guardian that
20-23 is:
20-24 (1) a corporate fiduciary, as defined by Section 601
20-25 [601(5)] of this code; or
20-26 (2) a guardianship program operated by a county.
20-27 SECTION 11. Section 745(c), Texas Probate Code, is amended
21-1 to read as follows:
21-2 (c) When the estate of a minor ward consists only of cash or
21-3 cash equivalents in an amount of $50,000 [$25,000] or less, the
21-4 guardianship of the estate may be terminated and the assets paid to
21-5 the county clerk of the county in which the guardianship
21-6 proceeding is pending, and the clerk shall manage the funds as
21-7 provided by Section 887 of this code.
21-8 SECTION 12. Subpart D, Part 4, Chapter XIII, Texas Probate
21-9 Code, is amended by adding Sections 760A and 760B to read as
21-10 follows:
21-11 Sec. 760A. CHANGE OF RESIDENT AGENT. (a) A guardian may
21-12 change its resident agent to accept service of process in a
21-13 guardianship proceeding or other matter relating to the
21-14 guardianship by filing a statement of the change entitled
21-15 "Designation of Successor Resident Agent" with the court in which
21-16 the guardianship proceeding is pending. The statement must contain
21-17 the names and addresses of the:
21-18 (1) guardian;
21-19 (2) resident agent; and
21-20 (3) successor resident agent.
21-21 (b) The designation of a successor resident agent made in a
21-22 statement filed under this section takes effect on the date on
21-23 which the statement is filed with the court.
21-24 Sec. 760B. RESIGNATION OF RESIDENT AGENT. (a) A resident
21-25 agent of a guardian may resign as the resident agent by giving
21-26 notice to the guardian and filing with the court in which the
21-27 guardianship proceeding is pending a statement entitled
22-1 "Resignation of Resident Agent" that:
22-2 (1) contains the name of the guardian;
22-3 (2) contains the address of the guardian most recently
22-4 known by the resident agent;
22-5 (3) states that notice of the resignation has been
22-6 given to the guardian and that the guardian does not have a
22-7 resident agent; and
22-8 (4) contains the date on which the notice of the
22-9 resignation was given to the guardian.
22-10 (b) The resident agent shall send, by certified mail, return
22-11 receipt requested, a copy of a resignation statement filed under
22-12 Subsection (a) of this section to:
22-13 (1) the guardian at the address most recently known by
22-14 the agent; and
22-15 (2) each party in the case or the party's attorney or
22-16 other designated representative of record.
22-17 (c) The resignation of a resident agent takes effect on the
22-18 date on which the court enters an order accepting the agent's
22-19 resignation. A court may not enter an order accepting the agent's
22-20 resignation unless the agent complies with the requirements of this
22-21 section.
22-22 SECTION 13. Section 761, Texas Probate Code, is amended to
22-23 read as follows:
22-24 Sec. 761. REMOVAL. (a) The court, on its own motion or on
22-25 motion of any interested person, including the ward, and without
22-26 notice, may remove any guardian, appointed under this chapter, who:
22-27 (1) neglects to qualify in the manner and time
23-1 required by law;
23-2 (2) fails to return within 90 days after
23-3 qualification, unless the time is extended by order of the court,
23-4 an inventory of the property of the guardianship estate and list of
23-5 claims that have come to the guardian's knowledge;
23-6 (3) having been required to give a new bond, fails to
23-7 do so within the time prescribed;
23-8 (4) absents himself from the state for a period of
23-9 three months at one time without permission of the court, or
23-10 removes from the state;
23-11 (5) cannot be served with notices or other processes
23-12 because of the fact that:
23-13 (A) the guardian's whereabouts are unknown;
23-14 (B) [, or because] the guardian is eluding
23-15 service; or
23-16 (C) the guardian is a nonresident of this state
23-17 who does not have a resident agent to accept service of process in
23-18 any guardianship proceeding or other matter relating to the
23-19 guardianship;
23-20 (6) has misapplied, embezzled, or removed from the
23-21 state, or is about to misapply, embezzle, or remove from the state,
23-22 all or any part of the property committed to the guardian's care;
23-23 or
23-24 (7) has cruelly treated a ward, or has neglected to
23-25 educate or maintain the ward as liberally as the means of the ward
23-26 and the condition of the ward's estate permit.
23-27 (b) The court may remove a personal representative under
24-1 Subsection (a)(6) or (7) of this section only on the presentation
24-2 of clear and convincing evidence given under oath.
24-3 (c) The court may remove a guardian on its own motion, or on
24-4 the complaint of an interested person, after the guardian has been
24-5 cited by personal service to answer at a time and place set in the
24-6 notice, when:
24-7 (1) sufficient grounds appear to support belief that
24-8 the guardian has misapplied, embezzled, or removed from the state,
24-9 or that the guardian is about to misapply, embezzle, or remove from
24-10 the state, all or any part of the property committed to the care of
24-11 the guardian;
24-12 (2) the guardian fails to return any account or report
24-13 that is required by law to be made;
24-14 (3) the guardian fails to obey any proper order of the
24-15 court having jurisdiction with respect to the performance of the
24-16 guardian's duties;
24-17 (4) the guardian is proved to have been guilty of
24-18 gross misconduct or mismanagement in the performance of the duties
24-19 of the guardian;
24-20 (5) the guardian becomes incapacitated, or is
24-21 sentenced to the penitentiary, or from any other cause becomes
24-22 incapable of properly performing the duties of the guardian's
24-23 trust;
24-24 (6) as guardian of the person, the guardian cruelly
24-25 treats the ward, or neglects to educate or maintain the ward as
24-26 liberally as the means of the ward's estate and the ward's ability
24-27 or condition permit;
25-1 (7) the guardian interferes with the ward's progress
25-2 or participation in programs in the community; [or]
25-3 (8) the guardian fails to comply with the requirements
25-4 of Section 697 of this code; or
25-5 (9) the court determines that, because of the
25-6 dissolution of the joint guardians' marriage, the termination of
25-7 the guardians' joint appointment and the continuation of only one
25-8 of the joint guardians as the sole guardian is in the best interest
25-9 of the ward.
25-10 (d) The order of removal shall state the cause of the
25-11 removal. It must require that any letters issued to the person who
25-12 is removed shall, if the removed person has been personally served
25-13 with citation, be surrendered and that all those letters be
25-14 cancelled of record, whether or not delivered. It must further
25-15 require, as to all the estate remaining in the hands of a removed
25-16 person, delivery of the estate to the person or persons entitled to
25-17 the estate, or to one who has been appointed and has qualified as
25-18 successor guardian, and as to the person of a ward, that control be
25-19 relinquished as required in the order.
25-20 (e) If a joint guardian is removed under Subsection (c)(9)
25-21 of this section, the other joint guardian is entitled to continue
25-22 to serve as the sole guardian unless removed for a reason other
25-23 than the dissolution of the joint guardians' marriage.
25-24 (f) If the necessity exists, the court may immediately
25-25 appoint a successor but may not discharge the person removed as
25-26 guardian of the estate or release the person or the sureties on the
25-27 person's bond until final order or judgment is rendered on the
26-1 final account of the guardian.
26-2 (g) [(f)] The court at any time may order a person removed
26-3 as guardian under this section who has all or part of the estate of
26-4 a ward to deliver all or part of the ward's estate to a person who
26-5 has been appointed and has qualified as successor guardian.
26-6 SECTION 14. Subpart M, Part 4, Chapter XIII, Texas Probate
26-7 Code, is amended by adding Section 865A to read as follows:
26-8 Sec. 865A. INSPECTION OF CERTAIN INSTRUMENT FOR ESTATE
26-9 PLANNING PURPOSES. (a) On the filing of an application under
26-10 Section 865 of this code, the guardian of the ward's estate may
26-11 apply to the court for an order to seek an in camera inspection of
26-12 a true copy of a will, codicil, trust, or other estate planning
26-13 instrument of the ward as a means of obtaining access to the
26-14 instrument for purposes of establishing an estate plan under
26-15 Section 865 of this code.
26-16 (b) An application filed under this section must:
26-17 (1) be sworn to by the guardian;
26-18 (2) list all of the instruments requested for
26-19 inspection; and
26-20 (3) state one or more reasons supporting the necessity
26-21 to inspect each requested instrument for the purpose described by
26-22 Subsection (a) of this section.
26-23 (c) A person who files an application under this section
26-24 shall send a copy of the application to:
26-25 (1) each person who has custody of an instrument
26-26 listed in the application;
26-27 (2) the ward's spouse;
27-1 (3) the ward's dependents;
27-2 (4) all devisees under a will, trust, or other
27-3 beneficial instrument relating to the ward's estate; and
27-4 (5) any other person as directed by the court.
27-5 (d) Notice required by Subsection (c) of this section must
27-6 be delivered by certified mail to a person described by Subsection
27-7 (c)(2), (3), (4), or (5) of this section and by registered or
27-8 certified mail to a person described by Subsection (c)(1) of this
27-9 section. After the 10th day after the date on which the applicant
27-10 complies with the notice requirement, the applicant may request
27-11 that a hearing be held on the application. Notice of the date,
27-12 time, and place of the hearing must be given by the applicant to
27-13 each person described by Subsection (c)(1) of this section when the
27-14 court sets a date for a hearing on the application.
27-15 (e) After the conclusion of a hearing on the application and
27-16 on a finding that there is good cause for an in camera inspection
27-17 of a requested instrument, the court shall direct the person that
27-18 has custody of the requested will, codicil, trust, or other estate
27-19 planning instrument to deliver a true copy of the instrument to the
27-20 court for in camera inspection only. After conducting an in camera
27-21 review of the instrument, the court, if good cause exists, shall
27-22 release all or part of the instrument to the applicant only for the
27-23 purpose described by Subsection (a) of this section.
27-24 (f) The court may appoint a guardian ad litem for the ward
27-25 or an interested party at any stage of the proceedings if it is
27-26 considered advisable for the protection of the ward or the
27-27 interested party.
28-1 (g) An attorney does not violate the attorney-client
28-2 privilege solely by complying with a court order to release an
28-3 instrument subject to this section. Notwithstanding Section
28-4 22.004, Government Code, the supreme court may not amend or adopt
28-5 rules in conflict with this subsection.
28-6 SECTION 15. Section 875(c), Texas Probate Code, is amended to
28-7 read as follows:
28-8 (c) A sworn, written application for the appointment of a
28-9 temporary guardian may be filed before the court appoints a
28-10 temporary guardian. The application must be filed not later than
28-11 the end of the next business day of the court after the date of
28-12 appointment of the temporary guardian. The application must state:
28-13 (1) the name and address of the person who is the
28-14 subject of the guardianship proceeding;
28-15 (2) the danger to the person or property alleged to be
28-16 imminent;
28-17 (3) the type of appointment and the particular
28-18 protection and assistance being requested;
28-19 (4) the facts and reasons supporting the allegations
28-20 and requests;
28-21 (5) the name, address, and qualification of the
28-22 proposed temporary guardian;
28-23 (6) the name, address, and interest of the applicant;
28-24 and
28-25 (7) [the social security numbers of the applicant and
28-26 proposed ward; and]
28-27 [(8)] if applicable, that the proposed temporary
29-1 guardian is a private professional guardian who has complied with
29-2 the requirements of Section 697 of this code.
29-3 SECTION 16. Section 883, Texas Probate Code, is amended to
29-4 read as follows:
29-5 Sec. 883. INCAPACITATED SPOUSE. (a) Except as provided by
29-6 Subsection (c) of this section, when [When] a husband or wife is
29-7 judicially declared to be incapacitated:
29-8 (1) [,] the other spouse, in the capacity of surviving
29-9 partner of the marital partnership, acquires full power to manage,
29-10 control, and dispose of the entire community estate as community
29-11 administrator, including the part of the community estate that the
29-12 incapacitated spouse legally has the power to manage in the absence
29-13 of the incapacity, without an administration; and
29-14 (2) if the incapacitated spouse owns separate
29-15 property, the court shall appoint the other spouse or another
29-16 person or entity, in the order of precedence established under
29-17 Section 677 of this code, as guardian of the estate to administer
29-18 only the separate property of the incapacitated spouse.
29-19 (b) The spouse who is not incapacitated is presumed to be
29-20 suitable and qualified to serve as community administrator. [If
29-21 the court finds that it is in the best interest of the
29-22 incapacitated spouse and that the other spouse would not be
29-23 disqualified to serve as guardian under Section 681 of this code,
29-24 guardianship of the estate of the incapacitated spouse may not be
29-25 necessary when the other spouse is not incapacitated unless the
29-26 incapacitated spouse owns separate property, and the guardianship
29-27 will be of the separate property only.] The qualification of a
30-1 guardian of the estate of the separate property of an incapacitated
30-2 spouse as required under Subsection (a) of this section does not
30-3 deprive the competent spouse of the right to manage, control, and
30-4 dispose of the entire community estate as provided in this chapter.
30-5 (c) If a spouse who is not incapacitated is removed as
30-6 community administrator or if the court finds that the spouse who
30-7 is not incapacitated would be disqualified to serve as guardian
30-8 under Section 681 of this code or is not suitable to serve as
30-9 community administrator for any other reason, the court:
30-10 (1) shall appoint a guardian of the estate for the
30-11 incapacitated spouse if the court:
30-12 (A) has not appointed a guardian of the estate
30-13 under Subsection (a)(2) of this section; or
30-14 (B) has appointed the spouse who is not
30-15 incapacitated as guardian of the estate under Subsection (a)(2) of
30-16 this section;
30-17 (2) after taking into consideration the financial
30-18 circumstances of the spouses and any other relevant factors, may
30-19 order the spouse who is not incapacitated to deliver to the
30-20 guardian of the estate of the incapacitated spouse a portion, not
30-21 to exceed one-half, of the community property that is subject to
30-22 the spouses' joint management, control, and disposition under
30-23 Section 3.102, Family Code; and
30-24 (3) shall authorize the guardian of the estate of the
30-25 incapacitated spouse to administer:
30-26 (A) any separate property of the incapacitated
30-27 spouse;
31-1 (B) any community property that is subject to
31-2 the incapacitated spouse's sole management, control, and
31-3 disposition under Section 3.102, Family Code;
31-4 (C) any community property delivered to the
31-5 guardian of the estate under Subdivision (2) of this subsection;
31-6 and
31-7 (D) any income earned on property described in
31-8 this subsection.
31-9 (d) On a person's removal as community administrator or on
31-10 qualification of a guardian of the estate of the person's
31-11 incapacitated spouse under Subsection (c) of this section, as
31-12 appropriate, a spouse who is not incapacitated shall continue to
31-13 administer:
31-14 (1) the person's own separate property;
31-15 (2) any community property that is subject to the
31-16 person's sole management, control, and disposition under Section
31-17 3.102, Family Code;
31-18 (3) any community property subject to the spouses'
31-19 joint management, control, and disposition under Section 3.102,
31-20 Family Code, unless the person is required to deliver a portion of
31-21 that community property to the guardian of the estate of the
31-22 person's incapacitated spouse under Subsection (c)(2) of this
31-23 section, in which event, the person shall continue to administer
31-24 only the portion of the community property remaining after
31-25 delivery; and
31-26 (4) any income earned on property described in this
31-27 subsection the person is authorized to administer.
32-1 (e) The duties and obligations between spouses, including
32-2 the duty to support the other spouse, and the rights of any
32-3 creditor of either spouse are not affected by the manner in which
32-4 community property is administered under this section.
32-5 SECTION 17. Section 883A, Texas Probate Code, is amended to
32-6 read as follows:
32-7 Sec. 883A. RECOVERY OF CAPACITY. The special powers of
32-8 management, control, and disposition vested in the community
32-9 administrator [same spouse] by this chapter [code] shall terminate
32-10 when the decree of a court of competent jurisdiction finds that the
32-11 mental capacity of the incapacitated [other] spouse has been
32-12 recovered.
32-13 SECTION 18. Subpart C, Part 5, Chapter XIII, Texas Probate
32-14 Code, is amended by adding Sections 883B, 883C, and 883D to read as
32-15 follows:
32-16 Sec. 883B. ACCOUNTING, INVENTORY, AND APPRAISEMENT BY
32-17 COMMUNITY ADMINISTRATOR. (a) On its own motion or on the motion of
32-18 an interested person for good cause shown, the court may order a
32-19 community administrator to file a verified, full, and detailed
32-20 inventory and appraisement of:
32-21 (1) any community property that is subject to the
32-22 incapacitated spouse's sole management, control, and disposition
32-23 under Section 3.102, Family Code;
32-24 (2) any community property subject to the spouses'
32-25 joint management, control, and disposition under Section 3.102,
32-26 Family Code; and
32-27 (3) any income earned on property described in this
33-1 subsection.
33-2 (b) At any time after the expiration of 15 months after the
33-3 date that a community administrator's spouse is judicially declared
33-4 to be incapacitated, the court, on its own motion or on the motion
33-5 of an interested person for good cause shown, may order the
33-6 community administrator to prepare and file an accounting of:
33-7 (1) any community property that is subject to the
33-8 incapacitated spouse's sole management, control, and disposition
33-9 under Section 3.102, Family Code;
33-10 (2) any community property subject to the spouses'
33-11 joint management, control, and disposition under Section 3.102,
33-12 Family Code; and
33-13 (3) any income earned on property described in this
33-14 subsection.
33-15 (c) An inventory and appraisement ordered under Subsection
33-16 (a) of this section must:
33-17 (1) be prepared in the same form and manner that is
33-18 required of a guardian under Section 729 of this code; and
33-19 (2) be filed not later than the 90th day after the
33-20 date on which the order is issued.
33-21 (d) An accounting ordered under Subsection (b) of this
33-22 section must:
33-23 (1) be prepared in the same form and manner that is
33-24 required of a guardian under Section 741 of this code, except that
33-25 the requirement that an accounting be filed annually with the
33-26 county clerk does not apply; and
33-27 (2) be filed not later than the 60th day after the
34-1 date on which the order is issued.
34-2 (e) After an initial accounting has been filed by a
34-3 community administrator under this section, the court, on the
34-4 motion of an interested person for good cause shown, may order the
34-5 community administrator to file subsequent periodic accountings at
34-6 intervals of not less than 12 months.
34-7 Sec. 883C. REMOVAL OF COMMUNITY ADMINISTRATOR. (a) A court,
34-8 on its own motion or on the motion of an interested person and
34-9 after the community administrator has been cited by personal
34-10 service to answer at a time and place specified in the notice, may
34-11 remove a community administrator if:
34-12 (1) the community administrator fails to comply with a
34-13 court order for an inventory and appraisement, accounting, or
34-14 subsequent accounting under Section 883B of this code;
34-15 (2) sufficient grounds appear to support belief that
34-16 the community administrator has misapplied or embezzled, or that
34-17 the community administrator is about to misapply or embezzle, all
34-18 or any part of the property committed to the care of the community
34-19 administrator;
34-20 (3) the community administrator is proved to have been
34-21 guilty of gross misconduct or gross mismanagement in the
34-22 performance of duties as community administrator; or
34-23 (4) the community administrator becomes an
34-24 incapacitated person, is sentenced to the penitentiary, or for any
34-25 other reason becomes legally incapacitated from properly performing
34-26 the community administrator's fiduciary duties.
34-27 (b) The order of removal must state the cause of removal and
35-1 shall direct by order the disposition of the assets remaining in
35-2 the name or under the control of the removed community
35-3 administrator.
35-4 (c) A community administrator who defends an action for the
35-5 removal of the community administrator in good faith, regardless of
35-6 whether successful, is entitled to recover from the incapacitated
35-7 spouse's part of the community estate the community administrator's
35-8 necessary expenses and disbursements in the removal proceedings,
35-9 including reasonable attorney's fees.
35-10 Sec. 883D. APPOINTMENT OF ATTORNEY AD LITEM FOR
35-11 INCAPACITATED SPOUSE. (a) The court shall appoint an attorney ad
35-12 litem to represent the interests of an incapacitated spouse in a
35-13 proceeding to remove a community administrator or other proceeding
35-14 brought under this subpart.
35-15 (b) The attorney ad litem may demand from the community
35-16 administrator an accounting or inventory and appraisement of the
35-17 incapacitated spouse's part of the community estate being managed
35-18 by the community administrator.
35-19 (c) A community administrator shall comply with a demand
35-20 made under this section not later than the 60th day after the date
35-21 on which the community administrator receives the demand.
35-22 (d) An accounting or inventory and appraisement returned
35-23 under this subsection must be prepared in the form and manner
35-24 required by the attorney ad litem, and the attorney ad litem may
35-25 require the community administrator to file the accounting and
35-26 inventory and appraisement with the court.
35-27 SECTION 19. Section 884, Texas Probate Code, is amended to
36-1 read as follows:
36-2 Sec. 884. DELIVERY TO SPOUSE. A guardian of the estate of an
36-3 incapacitated married person who, as guardian, is administering
36-4 community property as part of the estate of the ward, shall deliver
36-5 on demand the community property to the spouse who is not
36-6 incapacitated if the spouse becomes community administrator under
36-7 Section 883 of this code.
36-8 SECTION 20. Subpart C, Part 5, Chapter XIII, Texas Probate
36-9 Code, is amended by adding Section 884A to read as follows:
36-10 Sec. 884A. LAWSUIT INFORMATION. A person whose spouse is
36-11 judicially declared to be incapacitated and who acquires the power
36-12 to manage, control, and dispose of the entire community estate
36-13 under Section 883 of this code shall inform the court in writing of
36-14 any suit filed by or on behalf of the person that:
36-15 (1) is a suit for dissolution of the marriage of the
36-16 person and the person's incapacitated spouse; or
36-17 (2) names the incapacitated spouse as a defendant.
36-18 SECTION 21. Section 3.301, Family Code, is amended to read as
36-19 follows:
36-20 Sec. 3.301. [INCAPACITATED,] MISSING, ABANDONED, OR
36-21 SEPARATED SPOUSE. (a) A spouse may file a sworn petition stating
36-22 the facts that make it desirable for the petitioning spouse to
36-23 manage, control, and dispose of community property described or
36-24 defined in the petition that would otherwise be subject to the sole
36-25 or joint management, control, and disposition of the other spouse
36-26 if:
36-27 (1) [because of physical or mental incapacity, the
37-1 other spouse is unable to manage, control, or dispose of the
37-2 community property subject to that spouse's sole or joint
37-3 management, control, and disposition;]
37-4 [(2)] the other spouse has disappeared and that
37-5 spouse's location remains unknown to the petitioning spouse, unless
37-6 the spouse is reported to be a prisoner of war or missing on public
37-7 service;
37-8 (2) [(3)] the other spouse has permanently abandoned
37-9 the petitioning spouse; or
37-10 (3) [(4)] the spouses are permanently separated.
37-11 (b) The petition may be filed in a court in the county in
37-12 which the petitioner resided at the time the [incapacity or]
37-13 separation began, or the abandonment or disappearance occurred, not
37-14 earlier than the 60th day after the date of the occurrence of the
37-15 event. If both spouses are nonresidents of this state at the time
37-16 the petition is filed, the petition may be filed in a court in a
37-17 county in which any part of the described or defined community
37-18 property is located.
37-19 SECTION 22. Section 3.307(b), Family Code, is amended to read
37-20 as follows:
37-21 (b) On the motion of either spouse, the court shall amend or
37-22 vacate the original order after notice and hearing if:
37-23 (1) [the incapacitated spouse's capacity is restored;]
37-24 [(2)] the spouse who disappeared reappears;
37-25 (2) [(3)] the abandonment or permanent separation
37-26 ends; or
37-27 (3) [(4)] the spouse who was reported to be a prisoner
38-1 of war or missing on public service returns.
38-2 SECTION 23. Section 5.002, Family Code, is amended to read as
38-3 follows:
38-4 Sec. 5.002. SALE OF SEPARATE HOMESTEAD AFTER [FOR
38-5 INCAPACITATED] SPOUSE JUDICIALLY DECLARED INCAPACITATED. If the
38-6 homestead is the separate property of a spouse and the other spouse
38-7 has been judicially declared incapacitated by a court exercising
38-8 original jurisdiction over guardianship and other matters under
38-9 Chapter XIII, Texas Probate Code, the owner may sell, convey, or
38-10 encumber the homestead without the joinder of the other spouse.
38-11 SECTION 24. Section 5.101, Family Code, is amended to read as
38-12 follows:
38-13 Sec. 5.101. SALE OF SEPARATE HOMESTEAD UNDER UNUSUAL
38-14 CIRCUMSTANCES. If the homestead is the separate property of a
38-15 spouse, that spouse may file a sworn petition that gives a
38-16 description of the property, states the facts that make it
38-17 desirable for the spouse to sell, convey, or encumber the homestead
38-18 without the joinder of the other spouse, and alleges that the other
38-19 spouse:
38-20 (1) [is incapacitated, whether judicially declared
38-21 incapacitated or not;]
38-22 [(2)] has disappeared and that the location of the
38-23 spouse remains unknown to the petitioning spouse;
38-24 (2) [(3)] has permanently abandoned the homestead and
38-25 the petitioning spouse;
38-26 (3) [(4)] has permanently abandoned the homestead and
38-27 the spouses are permanently separated; or
39-1 (4) [(5)] has been reported by an executive department
39-2 of the United States to be a prisoner of war or missing on public
39-3 service of the United States.
39-4 SECTION 25. Section 5.102, Family Code, is amended to read as
39-5 follows:
39-6 Sec. 5.102. SALE OF COMMUNITY HOMESTEAD UNDER UNUSUAL
39-7 CIRCUMSTANCES. If the homestead is the community property of the
39-8 spouses, one spouse may file a sworn petition that gives a
39-9 description of the property, states the facts that make it
39-10 desirable for the petitioning spouse to sell, convey, or encumber
39-11 the homestead without the joinder of the other spouse, and alleges
39-12 that the other spouse:
39-13 (1) [is incapacitated, whether judicially declared
39-14 incapacitated or not;]
39-15 [(2)] has disappeared and that the location of the
39-16 spouse remains unknown to the petitioning spouse;
39-17 (2) [(3)] has permanently abandoned the homestead and
39-18 the petitioning spouse;
39-19 (3) [(4)] has permanently abandoned the homestead and
39-20 the spouses are permanently separated; or
39-21 (4) [(5)] has been reported by an executive department
39-22 of the United States to be a prisoner of war or missing on public
39-23 service of the United States.
39-24 SECTION 26. Section 5.103, Family Code, is amended to read as
39-25 follows:
39-26 Sec. 5.103. TIME FOR FILING PETITION. The petitioning spouse
39-27 may file the petition in a court of the county in which any portion
40-1 of the property is located not earlier than the 60th day after the
40-2 date of the occurrence of an event described by Sections
40-3 5.101(1)-(3) [5.101(1)-(4)] and 5.102(1)-(3) [5.102(1)-(4)] or not
40-4 less than six months after the date the other spouse had been
40-5 reported to be a prisoner of war or missing on public service.
40-6 SECTION 27. Section 5.107, Family Code, is redesignated as
40-7 Section 5.003, Family Code, and amended to read as follows:
40-8 Sec. 5.003 [5.107]. SALE OF COMMUNITY HOMESTEAD AFTER [FOR]
40-9 SPOUSE JUDICIALLY DECLARED INCAPACITATED. If the homestead is the
40-10 community property of the spouses and one spouse has been
40-11 judicially declared incapacitated by a court exercising original
40-12 jurisdiction over guardianship and other matters under Chapter
40-13 XIII, Texas Probate Code, the competent spouse may sell, convey, or
40-14 encumber the homestead without the joinder of the other spouse.
40-15 SECTION 28. The change in law made by this Act to Sections
40-16 3.301, 3.307(b), 5.101, 5.102, and 5.103, Family Code, applies only
40-17 to a proceeding in which an original petition is filed on or after
40-18 the effective date of this Act. A proceeding in which the original
40-19 petition was filed before the effective date of this Act is
40-20 governed by the law in effect on the date the petition was filed,
40-21 and the former law is continued in effect for that purpose.
40-22 SECTION 29. The changes in law made by this Act to Section
40-23 485, Texas Probate Code, apply only to a durable power of attorney
40-24 or statutory durable power of attorney that is executed on or after
40-25 the effective date of this Act. A durable power of attorney or
40-26 statutory durable power of attorney that is executed before the
40-27 effective date of this Act is governed by the law in effect on the
41-1 date the power of attorney was executed, and the former law is
41-2 continued in effect for that purpose.
41-3 SECTION 30. The changes in law made by this Act to Sections
41-4 676 and 677, Texas Probate Code, apply only to a will or written
41-5 declaration for the appointment of a guardian that is executed on
41-6 or after the effective date of this Act. A will or written
41-7 declaration for the appointment of a guardian that is executed
41-8 before the effective date of this Act is governed by the law in
41-9 effect on the date the will or declaration was executed, and the
41-10 former law is continued in effect for that purpose.
41-11 SECTION 31. The changes in law made by this Act to Sections
41-12 677A and 679, Texas Probate Code, and Sections 677B and 679A, Texas
41-13 Probate Code, as added by this Act, apply only to a written
41-14 declaration for the appointment of a guardian that is executed on
41-15 or after the effective date of this Act. A written declaration for
41-16 the appointment of a guardian that is executed before the effective
41-17 date of this Act is governed by the law in effect on the date the
41-18 declaration was executed, and the former law is continued in effect
41-19 for that purpose.
41-20 SECTION 32. Sections 760A and 760B, Texas Probate Code, as
41-21 added by this Act, apply only to a change in designation of or a
41-22 resignation of a resident agent made on or after the effective date
41-23 of this Act. A change in designation of or the resignation of a
41-24 resident agent made before the effective date of this Act is
41-25 governed by the law in effect when the change in designation of or
41-26 the resignation of the resident agent occurred, and the former law
41-27 is continued in effect for that purpose.
42-1 SECTION 33. The changes in law made by this Act to Section
42-2 761, Texas Probate Code, apply only to a motion or complaint for
42-3 the removal of a guardian made or filed on or after the effective
42-4 date of this Act. A motion or complaint for the removal of a
42-5 guardian made or filed before the effective date of this Act is
42-6 governed by the law in effect on the date the motion or complaint
42-7 was made or filed, and the former law is continued in effect for
42-8 that purpose.
42-9 SECTION 34. The changes in law made by Sections 2, 10, 16,
42-10 17, and 19 of this Act and Sections 883B, 883C, and 883D, Texas
42-11 Probate Code, as added by this Act, apply only to the estate of a
42-12 person for which a motion to judicially declare the person
42-13 incapacitated is filed on or after the effective date of this Act.
42-14 The estate of a person for which a motion to judicially declare the
42-15 person incapacitated is filed before the effective date of this Act
42-16 is governed by the law in effect when the motion was filed, and the
42-17 former law is continued in effect for that purpose.
42-18 SECTION 35. The change in law made by this Act to Section
42-19 745(c), Texas Probate Code, applies only to an application to close
42-20 a guardianship that is filed on or after the effective date of this
42-21 Act. An application to close a guardianship that is filed before
42-22 the effective date of this Act is governed by the law in effect on
42-23 the date the application was filed, and the former law is continued
42-24 in effect for that purpose.
42-25 SECTION 36. The change in law made by this Act to Section
42-26 875(c), Texas Probate Code, applies only to an application for the
42-27 appointment of a temporary guardian that is filed on or after the
43-1 effective date of this Act. An application for the appointment of
43-2 a temporary guardian that is filed before the effective date of
43-3 this Act is governed by the law in effect on the date the
43-4 application was filed, and the former law is continued in effect
43-5 for that purpose.
43-6 SECTION 37. This Act takes effect September 1, 2001.