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 chapter [code], an eligible
8-8 person is also entitled to be appointed guardian of the children's
8-9 estates after the death of the parent or in the event of the
8-10 parent's incapacity.
8-11 (g) The powers of a person appointed to serve as the
8-12 designated guardian of the person or estate, or both, of a minor
8-13 child solely because of the incapacity of the minor's surviving
8-14 parent and in accordance with this section and Section 677A of this
8-15 code terminate when a probate court enters an order finding that
8-16 the surviving parent is no longer an incapacitated person.
8-17 SECTION 5. Section 677, Texas Probate Code, is amended by
8-18 amending Subsection (b) and adding Subsections (c)-(e) to read as
8-19 follows:
8-20 (b) The surviving parent of an adult individual who is an
8-21 incapacitated person[, because of a physical or mental condition,
8-22 is substantially unable to provide food, clothing, or shelter for
8-23 himself or herself, to care for the individual's own physical
8-24 health, or to manage the individual's own financial affairs,] may
8-25 by will or written declaration appoint an eligible person to be
8-26 guardian of the person of the adult individual after the parent's
8-27 death or in the event of the parent's incapacity if the parent is
9-1 the guardian of the person of the adult individual.
9-2 (c) After the death of the surviving parent of an adult
9-3 individual who is an incapacitated person or if the court finds the
9-4 surviving parent becomes an incapacitated person after being
9-5 appointed the individual's guardian, as appropriate [Unless the
9-6 court finds that the person designated in the will or declaration
9-7 to serve as guardian is disqualified, is dead, refuses to serve, or
9-8 would not serve the best interests of the adult individual], the
9-9 court shall appoint the person designated in the will or
9-10 declaration to serve as guardian in preference to those otherwise
9-11 entitled to serve as guardian under this chapter unless the court
9-12 finds that the designated guardian is disqualified, is dead,
9-13 refuses to serve, or would not serve the best interests of the
9-14 adult individual.
9-15 (d) On compliance with this chapter [code], the eligible
9-16 person appointed under Subsection (c) of this section [this
9-17 subsection] is also entitled to be appointed guardian of the adult
9-18 individual's estate after the death of the individual's parent or
9-19 in the event of the parent's incapacity if the individual's parent
9-20 is the guardian of the individual's estate.
9-21 (e) The powers of a person appointed to serve as the
9-22 designated guardian of the person or estate, or both, of an adult
9-23 individual solely because of the incapacity of the individual's
9-24 surviving parent and in accordance with this section and Section
9-25 677A of this code terminate when a probate court enters an order
9-26 finding that the surviving parent is no longer an incapacitated
9-27 person and reappointing the surviving parent as the individual's
10-1 guardian.
10-2 SECTION 6. Section 677A, Texas Probate Code, is amended to
10-3 read as follows:
10-4 Sec. 677A. WRITTEN DECLARATIONS BY CERTAIN PARENTS TO
10-5 APPOINT GUARDIANS FOR THEIR CHILDREN. (a) A written declaration
10-6 appointing an eligible person to be guardian of the person of the
10-7 parent's child under Section 676(d) or 677(b) of this code must be
10-8 signed by the declarant and be:
10-9 (1) written wholly in the handwriting of the
10-10 declarant; or
10-11 (2) attested to in the presence of the declarant by at
10-12 least two credible witnesses 14 years of age or older who are not
10-13 named as guardian or alternate guardian in the declaration.
10-14 (b) A declaration that is not written wholly in the
10-15 handwriting of the declarant may be signed by another person for
10-16 the declarant under the direction of and in the presence of the
10-17 declarant.
10-18 (c) A declaration described by Subsection (a)(2) of this
10-19 section may [The declaration must] have attached a self-proving
10-20 affidavit signed by the declarant and the witnesses attesting to
10-21 the competence of the declarant and the execution of the
10-22 declaration. [A properly executed and witnessed declaration and
10-23 affidavit are prima facie evidence that the declarant was competent
10-24 at the time the declarant executed the declaration and that the
10-25 guardian named in the declaration would serve the best interests of
10-26 the ward.]
10-27 (d) [(c)] The declaration and any self-proving affidavit may
11-1 be filed with the court at any time after the application for
11-2 appointment of a guardian is filed and before a guardian is
11-3 appointed.
11-4 (e) If the designated guardian does not qualify, is dead,
11-5 refuses to serve, resigns, or dies after being appointed guardian,
11-6 or is otherwise unavailable to serve as guardian, the court shall
11-7 appoint the next eligible designated alternate guardian named in
11-8 the declaration. If the guardian and all alternate guardians do
11-9 not qualify, are dead, refuse to serve, or later die or resign, the
11-10 court shall appoint another person to serve as otherwise provided
11-11 by this code.
11-12 (f) [(d)] The declarant may revoke a declaration in any
11-13 manner provided for the revocation of a will under Section 63 of
11-14 this code, including the subsequent reexecution of the declaration
11-15 in the manner required for the original declaration.
11-16 (g) [(e)] A declaration and affidavit may be in any form
11-17 adequate to clearly indicate the declarant's intention to designate
11-18 a guardian for the declarant's child. The following form may, but
11-19 need not, be used:
11-20 DECLARATION OF APPOINTMENT OF GUARDIAN FOR MY CHILDREN IN THE EVENT
11-21 OF MY DEATH OR INCAPACITY
11-22 I, __________, make this Declaration to appoint as guardian
11-23 for my child or children, listed as follows, in the event of my
11-24 death or incapacity:
11-25 ______________________________ ______________________________
11-26 ______________________________ ______________________________
11-27 ______________________________ ______________________________
12-1 (add blanks as appropriate)
12-2 I designate __________ to serve as guardian of the person of
12-3 my (child or children), __________ as first alternate guardian of
12-4 the person of my (child or children), __________ as second
12-5 alternate guardian of the person of my (child or children), and
12-6 __________ as third alternate guardian of the person of my (child
12-7 or children).
12-8 I direct that the guardian of the person of my (child or
12-9 children) serve (with or without) bond.
12-10 (If applicable) I designate __________ to serve as guardian
12-11 of the estate of my (child or children), __________ as first
12-12 alternate guardian of the estate of my (child or children),
12-13 __________ as second alternate guardian of the estate of my (child
12-14 or children), and __________ as third alternate guardian of the
12-15 estate of my (child or children).
12-16 If any guardian or alternate guardian dies, does not qualify,
12-17 or resigns, the next named alternate guardian becomes guardian of
12-18 my (child or children).
12-19 Signed this __________ day of __________, 20__[19___].
12-20 ______________________________
12-21 Declarant
12-22 ______________________________ ______________________________
12-23 Witness Witness
12-24 SELF-PROVING AFFIDAVIT
12-25 Before me, the undersigned authority, on this date personally
12-26 appeared the declarant, and __________ and __________ as witnesses,
12-27 and all being duly sworn, the declarant said that the above
13-1 instrument was his or her Declaration of Appointment of Guardian
13-2 for the Declarant's Children in the Event of Declarant's Death or
13-3 Incapacity and that the declarant had made and executed it for the
13-4 purposes expressed in the declaration. The witnesses declared to
13-5 me that they are each 14 years of age or older, that they saw the
13-6 declarant sign the declaration, that they signed the declaration as
13-7 witnesses, and that the declarant appeared to them to be of sound
13-8 mind.
13-9 ______________________________
13-10 Declarant
13-11 ______________________________ ______________________________
13-12 Affiant Affiant
13-13 Subscribed and sworn to before me by the above named
13-14 declarant and affiants on this ___ day of __________, 20__ [19___].
13-15 ______________________________
13-16 Notary Public in and for the
13-17 State of Texas
13-18 My Commission expires:
13-19 ______________________________
13-20 (h) In this section, "self-proving affidavit" means an
13-21 affidavit the form and content of which substantially complies with
13-22 the requirements of Subsection (g) of this section.
13-23 SECTION 7. Subpart A, Part 3, Chapter XIII, Texas Probate
13-24 Code, is amended by adding Section 677B to read as follows:
13-25 Sec. 677B. PROOF OF WRITTEN DECLARATION OF CERTAIN PARENTS
13-26 TO DESIGNATE CHILDRENS' GUARDIAN. (a) In this section:
13-27 (1) "Declaration" means a written declaration of a
14-1 person that:
14-2 (A) appoints a guardian for the person's child
14-3 under Section 676(d) or 677(b) of this code; and
14-4 (B) satisfies the requirements of Section 677A
14-5 of this code.
14-6 (2) "Self-proving affidavit" means an affidavit the
14-7 form and content of which substantially complies with the
14-8 requirements of Section 677A(g) of this code.
14-9 (3) "Self-proving declaration" includes a self-proving
14-10 affidavit that is attached or annexed to a declaration.
14-11 (b) If a declaration is self-proved, the court may admit the
14-12 declaration into evidence without the testimony of witnesses
14-13 attesting to the competency of the declarant and the execution of
14-14 the declaration. Additional proof of the execution of the
14-15 declaration with the formalities and solemnities and under the
14-16 circumstances required to make it a valid declaration is not
14-17 necessary.
14-18 (c) At any time during the declarant's lifetime, a written
14-19 declaration described by Section 677A(a)(1) of this code may be
14-20 made self-proved in the same form and manner a will written wholly
14-21 in the handwriting of a testator is made self-proved under Section
14-22 60 of this code.
14-23 (d) A properly executed and witnessed self-proving
14-24 declaration and affidavit, including a declaration and affidavit
14-25 described by Section 677A(c) of this code, are prima facie evidence
14-26 that the declarant was competent at the time the declarant executed
14-27 the declaration and that the guardian named in the declaration
15-1 would serve the best interests of the ward.
15-2 (e) A written declaration described by Section 677A(a)(1) of
15-3 this code that is not self-proved may be proved in the same manner
15-4 a will written wholly in the handwriting of the testator is proved
15-5 under Section 84 of this code.
15-6 (f) A written declaration described by Section 677A(a)(2) of
15-7 this code that is not self-proved may be proved in the same manner
15-8 an attested written will produced in court is proved under Section
15-9 84 of this code.
15-10 SECTION 8. Section 679, Texas Probate Code, is amended to
15-11 read as follows:
15-12 Sec. 679. DESIGNATION OF GUARDIAN BEFORE NEED ARISES. (a)
15-13 A person other than an incapacitated person may designate by a
15-14 written declaration persons to serve as guardian of the person of
15-15 the declarant or the estate of the declarant if the declarant
15-16 becomes incapacitated. The declaration must be signed by the
15-17 declarant and be:
15-18 (1) written wholly in the handwriting of the
15-19 declarant; or
15-20 (2) attested to in the presence of the declarant by at
15-21 least two credible witnesses 14 years of age or older who are not
15-22 named as guardian or alternate guardian in the declaration.
15-23 (b) A declarant may, in the declaration, disqualify named
15-24 persons from serving as guardian of the declarant's person or
15-25 estate, and the persons named may not be appointed guardian under
15-26 any circumstances.
15-27 (c) A declaration that is not written wholly in the
16-1 handwriting of a declarant may be signed by another person for the
16-2 declarant under the direction of and in the presence of the
16-3 declarant.
16-4 (d) A declaration described by Subsection (a)(2) of this
16-5 section may [The declaration must] have attached a self-proving
16-6 affidavit signed by the declarant and the witnesses attesting to
16-7 the competence of the declarant and the execution of the
16-8 declaration. [A properly executed and witnessed declaration and
16-9 affidavit are prima facie evidence that the declarant was competent
16-10 at the time the declarant executed the declaration and that the
16-11 guardian named in the declaration would serve the best interests of
16-12 the ward.]
16-13 (e) [(d)] The declaration and any self-proving affidavit may
16-14 be filed with the court at any time after the application for
16-15 appointment of a guardian is filed and before a guardian is
16-16 appointed.
16-17 (f) Unless the court finds that the person designated in the
16-18 declaration to serve as guardian is disqualified or would not serve
16-19 the best interests of the ward, the court shall appoint the person
16-20 as guardian in preference to those otherwise entitled to serve as
16-21 guardian under this code. If the designated guardian does not
16-22 qualify, is dead, refuses to serve, resigns, or dies after being
16-23 appointed guardian, or is otherwise unavailable to serve as
16-24 guardian, the court shall appoint the next eligible designated
16-25 alternate guardian named in the declaration. If the guardian and
16-26 all alternate guardians do not qualify, are dead, refuse to serve,
16-27 or later die or resign, the court shall appoint another person to
17-1 serve as otherwise provided by this code.
17-2 (g) [(e)] The declarant may revoke a declaration in any
17-3 manner provided for the revocation of a will under Section 63 of
17-4 this code, including the subsequent reexecution of the declaration
17-5 in the manner required for the original declaration.
17-6 (h) [(f)] If a declarant designates the declarant's spouse
17-7 to serve as guardian under this section, and the declarant is
17-8 subsequently divorced from that spouse before a guardian is
17-9 appointed, the provision of the declaration designating the spouse
17-10 has no effect.
17-11 (i) [(g)] A declaration and affidavit may be in any form
17-12 adequate to clearly indicate the declarant's intention to designate
17-13 a guardian. The following form [forms] may, but need not, be used:
17-14 DECLARATION OF GUARDIAN IN THE EVENT OF LATER
17-15 INCAPACITY OR NEED OF GUARDIAN
17-16 I, __________, make this Declaration of Guardian, to operate
17-17 if the need for a guardian for me later arises.
17-18 1. I designate __________ to serve as guardian of my person,
17-19 __________ as first alternate guardian of my person, __________ as
17-20 second alternate guardian of my person, and __________ as third
17-21 alternate guardian of my person.
17-22 2. I designate __________ to serve as guardian of my estate,
17-23 __________ as first alternate guardian of my estate, __________ as
17-24 second alternate guardian of my estate, and __________ as third
17-25 alternate guardian of my estate.
17-26 3. If any guardian or alternate guardian dies, does not
17-27 qualify, or resigns, the next named alternate guardian becomes my
18-1 guardian.
18-2 4. I expressly disqualify the following persons from serving
18-3 as guardian of my person: __________, __________, and __________.
18-4 5. I expressly disqualify the following persons from serving
18-5 as guardian of my estate: __________, __________, and __________.
18-6 Signed this ___ day of __________, 20__ [19___].
18-7 ______________________________
18-8 Declarant
18-9 ______________________________ ______________________________
18-10 Witness Witness
18-11 SELF-PROVING AFFIDAVIT
18-12 Before me, the undersigned authority, on this date personally
18-13 appeared the declarant, and ____________ and ____________ as
18-14 witnesses, and all being duly sworn, the declarant said that the
18-15 above instrument was his or her Declaration of Guardian and that
18-16 the declarant had made and executed it for the purposes expressed
18-17 in the declaration. The witnesses declared to me that they are
18-18 each 14 years of age or older, that they saw the declarant sign the
18-19 declaration, that they signed the declaration as witnesses, and
18-20 that the declarant appeared to them to be of sound mind.
18-21 ______________________________
18-22 Declarant
18-23 ______________________________ ______________________________
18-24 Affiant Affiant
18-25 Subscribed and sworn to before me by the above named
18-26 declarant and affiants on this ____ day of __________, 20__ [19__].
18-27 _________________________
19-1 Notary Public in and for
19-2 the State of Texas
19-3 My Commission expires:
19-4 _________________________
19-5 (j) In this section, "self-proving affidavit" means an
19-6 affidavit the form and content of which substantially complies with
19-7 the requirements of Subsection (i) of this section.
19-8 SECTION 9. Subpart A, Part 3, Chapter XIII, Texas Probate
19-9 Code, is amended by adding Section 679A to read as follows:
19-10 Sec. 679A. PROOF OF WRITTEN DECLARATION TO DESIGNATE
19-11 GUARDIAN BEFORE NEED ARISES. (a) In this section:
19-12 (1) "Declaration" means a written declaration of a
19-13 person that:
19-14 (A) designates another person to serve as a
19-15 guardian of the person or estate of the declarant; and
19-16 (B) satisfies the requirements of Section 679 of
19-17 this code.
19-18 (2) "Self-proving affidavit" means an affidavit the
19-19 form and content of which substantially complies with the
19-20 requirements of Section 679(i) of this code.
19-21 (3) "Self-proving declaration" includes a self-proving
19-22 affidavit that is attached or annexed to a declaration.
19-23 (b) If a declaration is self-proved, the court may admit the
19-24 declaration into evidence without the testimony of witnesses
19-25 attesting to the competency of the declarant and the execution of
19-26 the declaration. Additional proof of the execution of the
19-27 declaration with the formalities and solemnities and under the
20-1 circumstances required to make it a valid declaration is not
20-2 necessary.
20-3 (c) At any time during the declarant's lifetime, a written
20-4 declaration described by Section 679(a)(1) of this code may be
20-5 made self-proved in the same form and manner a will written wholly
20-6 in the handwriting of a testator is made self-proved under Section
20-7 60 of this code.
20-8 (d) A properly executed and witnessed self-proving
20-9 declaration and affidavit, including a declaration and affidavit
20-10 described by Section 679(d) of this code, are prima facie evidence
20-11 that the declarant was competent at the time the declarant executed
20-12 the declaration and that the guardian named in the declaration
20-13 would serve the best interests of the ward.
20-14 (e) A written declaration described by Section 679(a)(1) of
20-15 this code that is not self-proved may be proved in the same manner
20-16 a will written wholly in the handwriting of the testator is proved
20-17 under Section 84 of this code.
20-18 (f) A written declaration described by Section 679(a)(2) of
20-19 this code that is not self-proved may be proved in the same manner
20-20 an attested written will produced in court is proved under Section
20-21 84 of this code.
20-22 SECTION 10. Section 682A(a), Texas Probate Code, is amended
20-23 to read as follows:
20-24 (a) If a minor is a person who, because of incapacity, will
20-25 require a guardianship after the ward is no longer a minor, a
20-26 person may file an application under Section 682 of this code for
20-27 the appointment of a guardian of the person or [and/or] the estate,
21-1 or both, of the proposed ward not earlier than the 180th [60th] day
21-2 before the proposed ward's 18th birthday. If the application is
21-3 heard before the proposed ward's 18th birthday, a guardianship
21-4 created under this section may not take effect and the person
21-5 appointed guardian may not give a bond or take the oath as required
21-6 under Section 700 or 702 of this code until the proposed ward's
21-7 18th birthday.
21-8 SECTION 11. Section 701, Texas Probate Code, is amended to
21-9 read as follows:
21-10 Sec. 701. TIME FOR TAKING OATH AND GIVING BOND. Except as
21-11 provided by Section 682A(a) of this code, the [The] oath of a
21-12 guardian may be taken and subscribed, or the bond of a guardian may
21-13 be given and approved, at any time before the expiration of the
21-14 20th day after the date of the order granting letters of
21-15 guardianship, or before the letters have been revoked for a failure
21-16 to qualify within the time allowed. An oath may be taken before
21-17 any person authorized to administer oaths under the laws of this
21-18 state.
21-19 SECTION 12. Section 702(b), Texas Probate Code, is amended
21-20 to read as follows:
21-21 (b) A bond is not required to be given by a guardian that
21-22 is:
21-23 (1) a corporate fiduciary, as defined by Section 601
21-24 [601(5)] of this code; or
21-25 (2) a guardianship program operated by a county.
21-26 SECTION 13. Section 745(c), Texas Probate Code, is amended
21-27 to read as follows:
22-1 (c) When the estate of a minor ward consists only of cash or
22-2 cash equivalents in an amount of $50,000 [$25,000] or less, the
22-3 guardianship of the estate may be terminated and the assets paid to
22-4 the county clerk of the county in which the guardianship
22-5 proceeding is pending, and the clerk shall manage the funds as
22-6 provided by Section 887 of this code.
22-7 SECTION 14. Subpart D, Part 4, Chapter XIII, Texas Probate
22-8 Code, is amended by adding Sections 760A and 760B to read as
22-9 follows:
22-10 Sec. 760A. CHANGE OF RESIDENT AGENT. (a) A guardian may
22-11 change its resident agent to accept service of process in a
22-12 guardianship proceeding or other matter relating to the
22-13 guardianship by filing a statement of the change entitled
22-14 "Designation of Successor Resident Agent" with the court in which
22-15 the guardianship proceeding is pending. The statement must contain
22-16 the names and addresses of the:
22-17 (1) guardian;
22-18 (2) resident agent; and
22-19 (3) successor resident agent.
22-20 (b) The designation of a successor resident agent made in a
22-21 statement filed under this section takes effect on the date on
22-22 which the statement is filed with the court.
22-23 Sec. 760B. RESIGNATION OF RESIDENT AGENT. (a) A resident
22-24 agent of a guardian may resign as the resident agent by giving
22-25 notice to the guardian and filing with the court in which the
22-26 guardianship proceeding is pending a statement entitled
22-27 "Resignation of Resident Agent" that:
23-1 (1) contains the name of the guardian;
23-2 (2) contains the address of the guardian most recently
23-3 known by the resident agent;
23-4 (3) states that notice of the resignation has been
23-5 given to the guardian and that the guardian does not have a
23-6 resident agent; and
23-7 (4) contains the date on which the notice of the
23-8 resignation was given to the guardian.
23-9 (b) The resident agent shall send, by certified mail, return
23-10 receipt requested, a copy of a resignation statement filed under
23-11 Subsection (a) of this section to:
23-12 (1) the guardian at the address most recently known by
23-13 the agent; and
23-14 (2) each party in the case or the party's attorney or
23-15 other designated representative of record.
23-16 (c) The resignation of a resident agent takes effect on the
23-17 date on which the court enters an order accepting the agent's
23-18 resignation. A court may not enter an order accepting the agent's
23-19 resignation unless the agent complies with the requirements of this
23-20 section.
23-21 SECTION 15. Section 761, Texas Probate Code, is amended to
23-22 read as follows:
23-23 Sec. 761. REMOVAL. (a) The court, on its own motion or on
23-24 motion of any interested person, including the ward, and without
23-25 notice, may remove any guardian, appointed under this chapter, who:
23-26 (1) neglects to qualify in the manner and time
23-27 required by law;
24-1 (2) fails to return within 90 days after
24-2 qualification, unless the time is extended by order of the court,
24-3 an inventory of the property of the guardianship estate and list of
24-4 claims that have come to the guardian's knowledge;
24-5 (3) having been required to give a new bond, fails to
24-6 do so within the time prescribed;
24-7 (4) absents himself from the state for a period of
24-8 three months at one time without permission of the court, or
24-9 removes from the state;
24-10 (5) cannot be served with notices or other processes
24-11 because of the fact that:
24-12 (A) the guardian's whereabouts are unknown;
24-13 (B) [, or because] the guardian is eluding
24-14 service; or
24-15 (C) the guardian is a nonresident of this state
24-16 who does not have a resident agent to accept service of process in
24-17 any guardianship proceeding or other matter relating to the
24-18 guardianship;
24-19 (6) has misapplied, embezzled, or removed from the
24-20 state, or is about to misapply, embezzle, or remove from the state,
24-21 all or any part of the property committed to the guardian's care;
24-22 or
24-23 (7) has cruelly treated a ward, or has neglected to
24-24 educate or maintain the ward as liberally as the means of the ward
24-25 and the condition of the ward's estate permit.
24-26 (b) The court may remove a personal representative under
24-27 Subsection (a)(6) or (7) of this section only on the presentation
25-1 of clear and convincing evidence given under oath.
25-2 (c) The court may remove a guardian on its own motion, or on
25-3 the complaint of an interested person, after the guardian has been
25-4 cited by personal service to answer at a time and place set in the
25-5 notice, when:
25-6 (1) sufficient grounds appear to support belief that
25-7 the guardian has misapplied, embezzled, or removed from the state,
25-8 or that the guardian is about to misapply, embezzle, or remove from
25-9 the state, all or any part of the property committed to the care of
25-10 the guardian;
25-11 (2) the guardian fails to return any account or report
25-12 that is required by law to be made;
25-13 (3) the guardian fails to obey any proper order of the
25-14 court having jurisdiction with respect to the performance of the
25-15 guardian's duties;
25-16 (4) the guardian is proved to have been guilty of
25-17 gross misconduct or mismanagement in the performance of the duties
25-18 of the guardian;
25-19 (5) the guardian becomes incapacitated, or is
25-20 sentenced to the penitentiary, or from any other cause becomes
25-21 incapable of properly performing the duties of the guardian's
25-22 trust;
25-23 (6) as guardian of the person, the guardian cruelly
25-24 treats the ward, or neglects to educate or maintain the ward as
25-25 liberally as the means of the ward's estate and the ward's ability
25-26 or condition permit;
25-27 (7) the guardian interferes with the ward's progress
26-1 or participation in programs in the community; [or]
26-2 (8) the guardian fails to comply with the requirements
26-3 of Section 697 of this code; or
26-4 (9) the court determines that, because of the
26-5 dissolution of the joint guardians' marriage, the termination of
26-6 the guardians' joint appointment and the continuation of only one
26-7 of the joint guardians as the sole guardian is in the best interest
26-8 of the ward.
26-9 (d) The order of removal shall state the cause of the
26-10 removal. It must require that any letters issued to the person who
26-11 is removed shall, if the removed person has been personally served
26-12 with citation, be surrendered and that all those letters be
26-13 cancelled of record, whether or not delivered. It must further
26-14 require, as to all the estate remaining in the hands of a removed
26-15 person, delivery of the estate to the person or persons entitled to
26-16 the estate, or to one who has been appointed and has qualified as
26-17 successor guardian, and as to the person of a ward, that control be
26-18 relinquished as required in the order.
26-19 (e) If a joint guardian is removed under Subsection (c)(9)
26-20 of this section, the other joint guardian is entitled to continue
26-21 to serve as the sole guardian unless removed for a reason other
26-22 than the dissolution of the joint guardians' marriage.
26-23 (f) If the necessity exists, the court may immediately
26-24 appoint a successor but may not discharge the person removed as
26-25 guardian of the estate or release the person or the sureties on the
26-26 person's bond until final order or judgment is rendered on the
26-27 final account of the guardian.
27-1 (g) [(f)] The court at any time may order a person removed
27-2 as guardian under this section who has all or part of the estate of
27-3 a ward to deliver all or part of the ward's estate to a person who
27-4 has been appointed and has qualified as successor guardian.
27-5 SECTION 16. Subpart M, Part 4, Chapter XIII, Texas Probate
27-6 Code, is amended by adding Section 865A to read as follows:
27-7 Sec. 865A. INSPECTION OF CERTAIN INSTRUMENT FOR ESTATE
27-8 PLANNING PURPOSES. (a) On the filing of an application under
27-9 Section 865 of this code, the guardian of the ward's estate may
27-10 apply to the court for an order to seek an in camera inspection of
27-11 a true copy of a will, codicil, trust, or other estate planning
27-12 instrument of the ward as a means of obtaining access to the
27-13 instrument for purposes of establishing an estate plan under
27-14 Section 865 of this code.
27-15 (b) An application filed under this section must:
27-16 (1) be sworn to by the guardian;
27-17 (2) list all of the instruments requested for
27-18 inspection; and
27-19 (3) state one or more reasons supporting the necessity
27-20 to inspect each requested instrument for the purpose described by
27-21 Subsection (a) of this section.
27-22 (c) A person who files an application under this section
27-23 shall send a copy of the application to:
27-24 (1) each person who has custody of an instrument
27-25 listed in the application;
27-26 (2) the ward's spouse;
27-27 (3) the ward's dependents;
28-1 (4) all devisees under a will, trust, or other
28-2 beneficial instrument relating to the ward's estate; and
28-3 (5) any other person as directed by the court.
28-4 (d) Notice required by Subsection (c) of this section must
28-5 be delivered by certified mail to a person described by Subsection
28-6 (c)(2), (3), (4), or (5) of this section and by registered or
28-7 certified mail to a person described by Subsection (c)(1) of this
28-8 section. After the 10th day after the date on which the applicant
28-9 complies with the notice requirement, the applicant may request
28-10 that a hearing be held on the application. Notice of the date,
28-11 time, and place of the hearing must be given by the applicant to
28-12 each person described by Subsection (c)(1) of this section when the
28-13 court sets a date for a hearing on the application.
28-14 (e) After the conclusion of a hearing on the application and
28-15 on a finding that there is good cause for an in camera inspection
28-16 of a requested instrument, the court shall direct the person that
28-17 has custody of the requested will, codicil, trust, or other estate
28-18 planning instrument to deliver a true copy of the instrument to the
28-19 court for in camera inspection only. After conducting an in camera
28-20 review of the instrument, the court, if good cause exists, shall
28-21 release all or part of the instrument to the applicant only for the
28-22 purpose described by Subsection (a) of this section.
28-23 (f) The court may appoint a guardian ad litem for the ward
28-24 or an interested party at any stage of the proceedings if it is
28-25 considered advisable for the protection of the ward or the
28-26 interested party.
28-27 (g) An attorney does not violate the attorney-client
29-1 privilege solely by complying with a court order to release an
29-2 instrument subject to this section. Notwithstanding Section
29-3 22.004, Government Code, the supreme court may not amend or adopt
29-4 rules in conflict with this subsection.
29-5 SECTION 17. Section 875(c), Texas Probate Code, is amended to
29-6 read as follows:
29-7 (c) A sworn, written application for the appointment of a
29-8 temporary guardian may be filed before the court appoints a
29-9 temporary guardian. The application must be filed not later than
29-10 the end of the next business day of the court after the date of
29-11 appointment of the temporary guardian. The application must state:
29-12 (1) the name and address of the person who is the
29-13 subject of the guardianship proceeding;
29-14 (2) the danger to the person or property alleged to be
29-15 imminent;
29-16 (3) the type of appointment and the particular
29-17 protection and assistance being requested;
29-18 (4) the facts and reasons supporting the allegations
29-19 and requests;
29-20 (5) the name, address, and qualification of the
29-21 proposed temporary guardian;
29-22 (6) the name, address, and interest of the applicant;
29-23 and
29-24 (7) [the social security numbers of the applicant and
29-25 proposed ward; and]
29-26 [(8)] if applicable, that the proposed temporary
29-27 guardian is a private professional guardian who has complied with
30-1 the requirements of Section 697 of this code.
30-2 SECTION 18. Section 883, Texas Probate Code, is amended to
30-3 read as follows:
30-4 Sec. 883. INCAPACITATED SPOUSE. (a) Except as provided by
30-5 Subsection (c) of this section, when [When] a husband or wife is
30-6 judicially declared to be incapacitated:
30-7 (1) [,] the other spouse, in the capacity of surviving
30-8 partner of the marital partnership, acquires full power to manage,
30-9 control, and dispose of the entire community estate as community
30-10 administrator, including the part of the community estate that the
30-11 incapacitated spouse legally has the power to manage in the absence
30-12 of the incapacity, without an administration; and
30-13 (2) if the incapacitated spouse owns separate
30-14 property, the court shall appoint the other spouse or another
30-15 person or entity, in the order of precedence established under
30-16 Section 677 of this code, as guardian of the estate to administer
30-17 only the separate property of the incapacitated spouse.
30-18 (b) The spouse who is not incapacitated is presumed to be
30-19 suitable and qualified to serve as community administrator. [If
30-20 the court finds that it is in the best interest of the
30-21 incapacitated spouse and that the other spouse would not be
30-22 disqualified to serve as guardian under Section 681 of this code,
30-23 guardianship of the estate of the incapacitated spouse may not be
30-24 necessary when the other spouse is not incapacitated unless the
30-25 incapacitated spouse owns separate property, and the guardianship
30-26 will be of the separate property only.] The qualification of a
30-27 guardian of the estate of the separate property of an incapacitated
31-1 spouse as required under Subsection (a) of this section does not
31-2 deprive the competent spouse of the right to manage, control, and
31-3 dispose of the entire community estate as provided in this chapter.
31-4 (c) If a spouse who is not incapacitated is removed as
31-5 community administrator or if the court finds that the spouse who
31-6 is not incapacitated would be disqualified to serve as guardian
31-7 under Section 681 of this code or is not suitable to serve as
31-8 community administrator for any other reason, the court:
31-9 (1) shall appoint a guardian of the estate for the
31-10 incapacitated spouse if the court:
31-11 (A) has not appointed a guardian of the estate
31-12 under Subsection (a)(2) of this section; or
31-13 (B) has appointed the spouse who is not
31-14 incapacitated as guardian of the estate under Subsection (a)(2) of
31-15 this section;
31-16 (2) after taking into consideration the financial
31-17 circumstances of the spouses and any other relevant factors, may
31-18 order the spouse who is not incapacitated to deliver to the
31-19 guardian of the estate of the incapacitated spouse a portion, not
31-20 to exceed one-half, of the community property that is subject to
31-21 the spouses' joint management, control, and disposition under
31-22 Section 3.102, Family Code; and
31-23 (3) shall authorize the guardian of the estate of the
31-24 incapacitated spouse to administer:
31-25 (A) any separate property of the incapacitated
31-26 spouse;
31-27 (B) any community property that is subject to
32-1 the incapacitated spouse's sole management, control, and
32-2 disposition under Section 3.102, Family Code;
32-3 (C) any community property delivered to the
32-4 guardian of the estate under Subdivision (2) of this subsection;
32-5 and
32-6 (D) any income earned on property described in
32-7 this subsection.
32-8 (d) On a person's removal as community administrator or on
32-9 qualification of a guardian of the estate of the person's
32-10 incapacitated spouse under Subsection (c) of this section, as
32-11 appropriate, a spouse who is not incapacitated shall continue to
32-12 administer:
32-13 (1) the person's own separate property;
32-14 (2) any community property that is subject to the
32-15 person's sole management, control, and disposition under Section
32-16 3.102, Family Code;
32-17 (3) any community property subject to the spouses'
32-18 joint management, control, and disposition under Section 3.102,
32-19 Family Code, unless the person is required to deliver a portion of
32-20 that community property to the guardian of the estate of the
32-21 person's incapacitated spouse under Subsection (c)(2) of this
32-22 section, in which event, the person shall continue to administer
32-23 only the portion of the community property remaining after
32-24 delivery; and
32-25 (4) any income earned on property described in this
32-26 subsection the person is authorized to administer.
32-27 (e) The duties and obligations between spouses, including
33-1 the duty to support the other spouse, and the rights of any
33-2 creditor of either spouse are not affected by the manner in which
33-3 community property is administered under this section.
33-4 SECTION 19. Section 883A, Texas Probate Code, is amended to
33-5 read as follows:
33-6 Sec. 883A. RECOVERY OF CAPACITY. The special powers of
33-7 management, control, and disposition vested in the community
33-8 administrator [same spouse] by this chapter [code] shall terminate
33-9 when the decree of a court of competent jurisdiction finds that the
33-10 mental capacity of the incapacitated [other] spouse has been
33-11 recovered.
33-12 SECTION 20. Subpart C, Part 5, Chapter XIII, Texas Probate
33-13 Code, is amended by adding Sections 883B, 883C, and 883D to read as
33-14 follows:
33-15 Sec. 883B. ACCOUNTING, INVENTORY, AND APPRAISEMENT BY
33-16 COMMUNITY ADMINISTRATOR. (a) On its own motion or on the motion of
33-17 an interested person for good cause shown, the court may order a
33-18 community administrator to file a verified, full, and detailed
33-19 inventory and appraisement of:
33-20 (1) any community property that is subject to the
33-21 incapacitated spouse's sole management, control, and disposition
33-22 under Section 3.102, Family Code;
33-23 (2) any community property subject to the spouses'
33-24 joint management, control, and disposition under Section 3.102,
33-25 Family Code; and
33-26 (3) any income earned on property described in this
33-27 subsection.
34-1 (b) At any time after the expiration of 15 months after the
34-2 date that a community administrator's spouse is judicially declared
34-3 to be incapacitated, the court, on its own motion or on the motion
34-4 of an interested person for good cause shown, may order the
34-5 community administrator to prepare and file an accounting of:
34-6 (1) any community property that is subject to the
34-7 incapacitated spouse's sole management, control, and disposition
34-8 under Section 3.102, Family Code;
34-9 (2) any community property subject to the spouses'
34-10 joint management, control, and disposition under Section 3.102,
34-11 Family Code; and
34-12 (3) any income earned on property described in this
34-13 subsection.
34-14 (c) An inventory and appraisement ordered under Subsection
34-15 (a) of this section must:
34-16 (1) be prepared in the same form and manner that is
34-17 required of a guardian under Section 729 of this code; and
34-18 (2) be filed not later than the 90th day after the
34-19 date on which the order is issued.
34-20 (d) An accounting ordered under Subsection (b) of this
34-21 section must:
34-22 (1) be prepared in the same form and manner that is
34-23 required of a guardian under Section 741 of this code, except that
34-24 the requirement that an accounting be filed annually with the
34-25 county clerk does not apply; and
34-26 (2) be filed not later than the 60th day after the
34-27 date on which the order is issued.
35-1 (e) After an initial accounting has been filed by a
35-2 community administrator under this section, the court, on the
35-3 motion of an interested person for good cause shown, may order the
35-4 community administrator to file subsequent periodic accountings at
35-5 intervals of not less than 12 months.
35-6 Sec. 883C. REMOVAL OF COMMUNITY ADMINISTRATOR. (a) A court,
35-7 on its own motion or on the motion of an interested person and
35-8 after the community administrator has been cited by personal
35-9 service to answer at a time and place specified in the notice, may
35-10 remove a community administrator if:
35-11 (1) the community administrator fails to comply with a
35-12 court order for an inventory and appraisement, accounting, or
35-13 subsequent accounting under Section 883B of this code;
35-14 (2) sufficient grounds appear to support belief that
35-15 the community administrator has misapplied or embezzled, or that
35-16 the community administrator is about to misapply or embezzle, all
35-17 or any part of the property committed to the care of the community
35-18 administrator;
35-19 (3) the community administrator is proved to have been
35-20 guilty of gross misconduct or gross mismanagement in the
35-21 performance of duties as community administrator; or
35-22 (4) the community administrator becomes an
35-23 incapacitated person, is sentenced to the penitentiary, or for any
35-24 other reason becomes legally incapacitated from properly performing
35-25 the community administrator's fiduciary duties.
35-26 (b) The order of removal must state the cause of removal and
35-27 shall direct by order the disposition of the assets remaining in
36-1 the name or under the control of the removed community
36-2 administrator.
36-3 (c) A community administrator who defends an action for the
36-4 removal of the community administrator in good faith, regardless of
36-5 whether successful, is entitled to recover from the incapacitated
36-6 spouse's part of the community estate the community administrator's
36-7 necessary expenses and disbursements in the removal proceedings,
36-8 including reasonable attorney's fees.
36-9 Sec. 883D. APPOINTMENT OF ATTORNEY AD LITEM FOR
36-10 INCAPACITATED SPOUSE. (a) The court shall appoint an attorney ad
36-11 litem to represent the interests of an incapacitated spouse in a
36-12 proceeding to remove a community administrator or other proceeding
36-13 brought under this subpart.
36-14 (b) The attorney ad litem may demand from the community
36-15 administrator an accounting or inventory and appraisement of the
36-16 incapacitated spouse's part of the community estate being managed
36-17 by the community administrator.
36-18 (c) A community administrator shall comply with a demand
36-19 made under this section not later than the 60th day after the date
36-20 on which the community administrator receives the demand.
36-21 (d) An accounting or inventory and appraisement returned
36-22 under this section must be prepared in the form and manner required
36-23 by the attorney ad litem, and the attorney ad litem may require the
36-24 community administrator to file the accounting and inventory and
36-25 appraisement with the court.
36-26 SECTION 21. Section 884, Texas Probate Code, is amended to
36-27 read as follows:
37-1 Sec. 884. DELIVERY TO SPOUSE. A guardian of the estate of an
37-2 incapacitated married person who, as guardian, is administering
37-3 community property as part of the estate of the ward, shall deliver
37-4 on demand the community property to the spouse who is not
37-5 incapacitated if the spouse becomes community administrator under
37-6 Section 883 of this code.
37-7 SECTION 22. Subpart C, Part 5, Chapter XIII, Texas Probate
37-8 Code, is amended by adding Section 884A to read as follows:
37-9 Sec. 884A. LAWSUIT INFORMATION. A person whose spouse is
37-10 judicially declared to be incapacitated and who acquires the power
37-11 to manage, control, and dispose of the entire community estate
37-12 under Section 883 of this code shall inform the court in writing of
37-13 any suit filed by or on behalf of the person that:
37-14 (1) is a suit for dissolution of the marriage of the
37-15 person and the person's incapacitated spouse; or
37-16 (2) names the incapacitated spouse as a defendant.
37-17 SECTION 23. Section 3.301, Family Code, is amended to read as
37-18 follows:
37-19 Sec. 3.301. [INCAPACITATED,] MISSING, ABANDONED, OR
37-20 SEPARATED SPOUSE. (a) A spouse may file a sworn petition stating
37-21 the facts that make it desirable for the petitioning spouse to
37-22 manage, control, and dispose of community property described or
37-23 defined in the petition that would otherwise be subject to the sole
37-24 or joint management, control, and disposition of the other spouse
37-25 if:
37-26 (1) [because of physical or mental incapacity, the
37-27 other spouse is unable to manage, control, or dispose of the
38-1 community property subject to that spouse's sole or joint
38-2 management, control, and disposition;]
38-3 [(2)] the other spouse has disappeared and that
38-4 spouse's location remains unknown to the petitioning spouse, unless
38-5 the spouse is reported to be a prisoner of war or missing on public
38-6 service;
38-7 (2) [(3)] the other spouse has permanently abandoned
38-8 the petitioning spouse; or
38-9 (3) [(4)] the spouses are permanently separated.
38-10 (b) The petition may be filed in a court in the county in
38-11 which the petitioner resided at the time the [incapacity or]
38-12 separation began, or the abandonment or disappearance occurred, not
38-13 earlier than the 60th day after the date of the occurrence of the
38-14 event. If both spouses are nonresidents of this state at the time
38-15 the petition is filed, the petition may be filed in a court in a
38-16 county in which any part of the described or defined community
38-17 property is located.
38-18 SECTION 24. Section 3.307(b), Family Code, is amended to read
38-19 as follows:
38-20 (b) On the motion of either spouse, the court shall amend or
38-21 vacate the original order after notice and hearing if:
38-22 (1) [the incapacitated spouse's capacity is restored;]
38-23 [(2)] the spouse who disappeared reappears;
38-24 (2) [(3)] the abandonment or permanent separation
38-25 ends; or
38-26 (3) [(4)] the spouse who was reported to be a prisoner
38-27 of war or missing on public service returns.
39-1 SECTION 25. Section 5.002, Family Code, is amended to read as
39-2 follows:
39-3 Sec. 5.002. SALE OF SEPARATE HOMESTEAD AFTER [FOR
39-4 INCAPACITATED] SPOUSE JUDICIALLY DECLARED INCAPACITATED. If the
39-5 homestead is the separate property of a spouse and the other spouse
39-6 has been judicially declared incapacitated by a court exercising
39-7 original jurisdiction over guardianship and other matters under
39-8 Chapter XIII, Texas Probate Code, the owner may sell, convey, or
39-9 encumber the homestead without the joinder of the other spouse.
39-10 SECTION 26. Section 5.101, Family Code, is amended to read as
39-11 follows:
39-12 Sec. 5.101. SALE OF SEPARATE HOMESTEAD UNDER UNUSUAL
39-13 CIRCUMSTANCES. If the homestead is the separate property of a
39-14 spouse, that spouse may file a sworn petition that gives a
39-15 description of the property, states the facts that make it
39-16 desirable for the spouse to sell, convey, or encumber the homestead
39-17 without the joinder of the other spouse, and alleges that the other
39-18 spouse:
39-19 (1) [is incapacitated, whether judicially declared
39-20 incapacitated or not;]
39-21 [(2)] has disappeared and that the location of the
39-22 spouse remains unknown to the petitioning spouse;
39-23 (2) [(3)] has permanently abandoned the homestead and
39-24 the petitioning spouse;
39-25 (3) [(4)] has permanently abandoned the homestead and
39-26 the spouses are permanently separated; or
39-27 (4) [(5)] has been reported by an executive department
40-1 of the United States to be a prisoner of war or missing on public
40-2 service of the United States.
40-3 SECTION 27. Section 5.102, Family Code, is amended to read as
40-4 follows:
40-5 Sec. 5.102. SALE OF COMMUNITY HOMESTEAD UNDER UNUSUAL
40-6 CIRCUMSTANCES. If the homestead is the community property of the
40-7 spouses, one spouse may file a sworn petition that gives a
40-8 description of the property, states the facts that make it
40-9 desirable for the petitioning spouse to sell, convey, or encumber
40-10 the homestead without the joinder of the other spouse, and alleges
40-11 that the other spouse:
40-12 (1) [is incapacitated, whether judicially declared
40-13 incapacitated or not;]
40-14 [(2)] has disappeared and that the location of the
40-15 spouse remains unknown to the petitioning spouse;
40-16 (2) [(3)] has permanently abandoned the homestead and
40-17 the petitioning spouse;
40-18 (3) [(4)] has permanently abandoned the homestead and
40-19 the spouses are permanently separated; or
40-20 (4) [(5)] has been reported by an executive department
40-21 of the United States to be a prisoner of war or missing on public
40-22 service of the United States.
40-23 SECTION 28. Section 5.103, Family Code, is amended to read as
40-24 follows:
40-25 Sec. 5.103. TIME FOR FILING PETITION. The petitioning spouse
40-26 may file the petition in a court of the county in which any portion
40-27 of the property is located not earlier than the 60th day after the
41-1 date of the occurrence of an event described by Sections
41-2 5.101(1)-(3) [5.101(1)-(4)] and 5.102(1)-(3) [5.102(1)-(4)] or not
41-3 less than six months after the date the other spouse has been
41-4 reported to be a prisoner of war or missing on public service.
41-5 SECTION 29. Section 5.107, Family Code, is redesignated as
41-6 Section 5.003, Family Code, and amended to read as follows:
41-7 Sec. 5.003 [5.107]. SALE OF COMMUNITY HOMESTEAD AFTER [FOR]
41-8 SPOUSE JUDICIALLY DECLARED INCAPACITATED. If the homestead is the
41-9 community property of the spouses and one spouse has been
41-10 judicially declared incapacitated by a court exercising original
41-11 jurisdiction over guardianship and other matters under Chapter
41-12 XIII, Texas Probate Code, the competent spouse may sell, convey, or
41-13 encumber the homestead without the joinder of the other spouse.
41-14 SECTION 30. The change in law made by this Act to Sections
41-15 3.301, 3.307(b), 5.101, 5.102, and 5.103, Family Code, applies only
41-16 to a proceeding in which an original petition is filed on or after
41-17 the effective date of this Act. A proceeding in which the original
41-18 petition was filed before the effective date of this Act is
41-19 governed by the law in effect on the date the petition was filed,
41-20 and the former law is continued in effect for that purpose.
41-21 SECTION 31. The changes in law made by this Act to Section
41-22 485, Texas Probate Code, apply only to a durable power of attorney
41-23 or statutory durable power of attorney executed by a principal for
41-24 whom an application for the appointment of a permanent guardian or
41-25 temporary guardian is filed on or after the effective date of this
41-26 Act. A durable power of attorney or statutory durable power of
41-27 attorney executed by a principal for whom an application for the
42-1 appointment of a permanent guardian or temporary guardian is filed
42-2 before the effective date of this Act is governed by the law in
42-3 effect on the date the application for the appointment of a
42-4 permanent or temporary guardian was filed, and the former law is
42-5 continued in effect for that purpose.
42-6 SECTION 32. The changes in law made by this Act to Sections
42-7 676 and 677, Texas Probate Code, apply only to a will or written
42-8 declaration for the appointment of a guardian that is executed on
42-9 or after the effective date of this Act. A will or written
42-10 declaration for the appointment of a guardian that is executed
42-11 before the effective date of this Act is governed by the law in
42-12 effect on the date the will or declaration was executed, and the
42-13 former law is continued in effect for that purpose.
42-14 SECTION 33. The changes in law made by this Act to Sections
42-15 677A and 679, Texas Probate Code, and Sections 677B and 679A, Texas
42-16 Probate Code, as added by this Act, apply only to a written
42-17 declaration for the appointment of a guardian that is executed on
42-18 or after the effective date of this Act. A written declaration for
42-19 the appointment of a guardian that is executed before the effective
42-20 date of this Act is governed by the law in effect on the date the
42-21 declaration was executed, and the former law is continued in effect
42-22 for that purpose.
42-23 SECTION 34. The changes in law made by this Act to Sections
42-24 682A(a) and 701, Texas Probate Code, apply only to an application
42-25 for the appointment of a guardian filed on or after the effective
42-26 date of this Act. An application for the appointment of a guardian
42-27 filed before the effective date of this Act is governed by the law
43-1 in effect on the date the application was filed, and the former law
43-2 is continued in effect for that purpose.
43-3 SECTION 35. Sections 760A and 760B, Texas Probate Code, as
43-4 added by this Act, apply only to a change in designation of or a
43-5 resignation of a resident agent made on or after the effective date
43-6 of this Act. A change in designation of or the resignation of a
43-7 resident agent made before the effective date of this Act is
43-8 governed by the law in effect when the change in designation of or
43-9 the resignation of the resident agent occurred, and the former law
43-10 is continued in effect for that purpose.
43-11 SECTION 36. The changes in law made by this Act to Section
43-12 761, Texas Probate Code, apply only to a motion or complaint for
43-13 the removal of a guardian made or filed on or after the effective
43-14 date of this Act. A motion or complaint for the removal of a
43-15 guardian made or filed before the effective date of this Act is
43-16 governed by the law in effect on the date the motion or complaint
43-17 was made or filed, and the former law is continued in effect for
43-18 that purpose.
43-19 SECTION 37. The changes in law made by Sections 2, 12, 18,
43-20 19, and 21 of this Act and Sections 883B, 883C, and 883D, Texas
43-21 Probate Code, as added by this Act, apply only to the estate of a
43-22 person for which a motion to judicially declare the person
43-23 incapacitated is filed on or after the effective date of this Act.
43-24 The estate of a person for which a motion to judicially declare the
43-25 person incapacitated is filed before the effective date of this Act
43-26 is governed by the law in effect when the motion was filed, and the
43-27 former law is continued in effect for that purpose.
44-1 SECTION 38. The change in law made by this Act to Section
44-2 745(c), Texas Probate Code, applies only to an application to close
44-3 a guardianship that is filed on or after the effective date of this
44-4 Act. An application to close a guardianship that is filed before
44-5 the effective date of this Act is governed by the law in effect on
44-6 the date the application was filed, and the former law is continued
44-7 in effect for that purpose.
44-8 SECTION 39. The change in law made by this Act to Section
44-9 875(c), Texas Probate Code, applies only to an application for the
44-10 appointment of a temporary guardian that is filed on or after the
44-11 effective date of this Act. An application for the appointment of
44-12 a temporary guardian that is filed before the effective date of
44-13 this Act is governed by the law in effect on the date the
44-14 application was filed, and the former law is continued in effect
44-15 for that purpose.
44-16 SECTION 40. This Act takes effect September 1, 2001.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 1132 was passed by the House on March
22, 2001, by a non-record vote; and that the House concurred in
Senate amendments to H.B. No. 1132 on May 9, 2001, by a non-record
vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 1132 was passed by the Senate, with
amendments, on May 3, 2001, by the following vote: Yeas 30, Nays
0, 1 present, not voting.
_______________________________
Secretary of the Senate
APPROVED: __________________________
Date
__________________________
Governor