By Thompson H.B. No. 1132
77R3285 CLG-D
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(d), Texas Probate Code, is amended to
7-15 read as follows:
7-16 (d) The surviving parent of a minor may by will or written
7-17 declaration appoint any eligible person to be guardian of the
7-18 person of the parent's minor children after the death of the parent
7-19 or in the event of the parent's incapacity. Unless the court finds
7-20 that the person designated in the will or declaration to serve as
7-21 guardian of the person of the parent's minor children is
7-22 disqualified, is dead, refuses to serve, or would not serve the
7-23 best interests of the minor children, the court shall appoint the
7-24 person as guardian in preference to those otherwise entitled to
7-25 serve as guardian under this chapter. On compliance with this
7-26 code, an eligible person is also entitled to be appointed guardian
7-27 of the children's estates after the death of the parent or in the
8-1 event of the parent's incapacity.
8-2 SECTION 5. Section 677(b), Texas Probate Code, is amended to
8-3 read as follows:
8-4 (b) The surviving parent of an adult individual who is an
8-5 incapacitated person[, because of a physical or mental condition,
8-6 is substantially unable to provide food, clothing, or shelter for
8-7 himself or herself, to care for the individual's own physical
8-8 health, or to manage the individual's own financial affairs,] may
8-9 by will or written declaration appoint an eligible person to be
8-10 guardian of the person of the adult individual after the parent's
8-11 death or in the event of the parent's incapacity if the parent is
8-12 the guardian of the person of the adult individual. Unless the
8-13 court finds that the person designated in the will or declaration
8-14 to serve as guardian is disqualified, is dead, refuses to serve, or
8-15 would not serve the best interests of the adult individual, the
8-16 court shall appoint the person as guardian in preference to those
8-17 otherwise entitled to serve as guardian under this chapter. On
8-18 compliance with this code, the eligible person appointed under this
8-19 subsection is also entitled to be appointed guardian of the adult
8-20 individual's estate after the death of the individual's parent or
8-21 in the event of the parent's incapacity if the individual's parent
8-22 is the guardian of the individual's estate.
8-23 SECTION 6. Section 677A, Texas Probate Code, is amended to
8-24 read as follows:
8-25 Sec. 677A. WRITTEN DECLARATIONS BY CERTAIN PARENTS TO
8-26 APPOINT GUARDIANS FOR THEIR CHILDREN. (a) A written declaration
8-27 appointing an eligible person to be guardian of the person of the
9-1 parent's child under Section 676(d) or 677(b) of this code must be
9-2 signed by the declarant and be:
9-3 (1) written wholly in the handwriting of the
9-4 declarant; or
9-5 (2) attested to in the presence of the declarant by at
9-6 least two credible witnesses 14 years of age or older who are not
9-7 named as guardian or alternate guardian in the declaration.
9-8 (b) A declaration that is not written wholly in the
9-9 handwriting of the declarant may be signed by another person for
9-10 the declarant under the direction of and in the presence of the
9-11 declarant.
9-12 (c) A declaration described by Subsection (a)(2) of this
9-13 section may [The declaration must] have attached a self-proving
9-14 affidavit signed by the declarant and the witnesses attesting to
9-15 the competence of the declarant and the execution of the
9-16 declaration. [A properly executed and witnessed declaration and
9-17 affidavit are prima facie evidence that the declarant was competent
9-18 at the time the declarant executed the declaration and that the
9-19 guardian named in the declaration would serve the best interests of
9-20 the ward.]
9-21 (d) [(c)] The declaration and any self-proving affidavit may
9-22 be filed with the court at any time after the application for
9-23 appointment of a guardian is filed and before a guardian is
9-24 appointed.
9-25 (e) If the designated guardian does not qualify, is dead,
9-26 refuses to serve, resigns, or dies after being appointed guardian,
9-27 or is otherwise unavailable to serve as guardian, the court shall
10-1 appoint the next eligible designated alternate guardian named in
10-2 the declaration. If the guardian and all alternate guardians do
10-3 not qualify, are dead, refuse to serve, or later die or resign, the
10-4 court shall appoint another person to serve as otherwise provided
10-5 by this code.
10-6 (f) [(d)] The declarant may revoke a declaration in any
10-7 manner provided for the revocation of a will under Section 63 of
10-8 this code, including the subsequent reexecution of the declaration
10-9 in the manner required for the original declaration.
10-10 (g) [(e)] A declaration and affidavit may be in any form
10-11 adequate to clearly indicate the declarant's intention to designate
10-12 a guardian for the declarant's child. The following form may, but
10-13 need not, be used:
10-14 DECLARATION OF APPOINTMENT OF GUARDIAN FOR MY CHILDREN IN THE EVENT
10-15 OF MY DEATH OR INCAPACITY
10-16 I, __________, make this Declaration to appoint as guardian
10-17 for my child or children, listed as follows, in the event of my
10-18 death or incapacity:
10-19 ______________________________ ______________________________
10-20 ______________________________ ______________________________
10-21 ______________________________ ______________________________
10-22 (add blanks as appropriate)
10-23 I designate __________ to serve as guardian of the person of
10-24 my (child or children), __________ as first alternate guardian of
10-25 the person of my (child or children), __________ as second
10-26 alternate guardian of the person of my (child or children), and
10-27 __________ as third alternate guardian of the person of my (child
11-1 or children).
11-2 I direct that the guardian of the person of my (child or
11-3 children) serve (with or without) bond.
11-4 (If applicable) I designate __________ to serve as guardian
11-5 of the estate of my (child or children), __________ as first
11-6 alternate guardian of the estate of my (child or children),
11-7 __________ as second alternate guardian of the estate of my (child
11-8 or children), and __________ as third alternate guardian of the
11-9 estate of my (child or children).
11-10 If any guardian or alternate guardian dies, does not qualify,
11-11 or resigns, the next named alternate guardian becomes guardian of
11-12 my (child or children).
11-13 Signed this __________ day of __________, 20__[19___].
11-14 ______________________________
11-15 Declarant
11-16 ______________________________ ______________________________
11-17 Witness Witness
11-18 SELF-PROVING AFFIDAVIT
11-19 Before me, the undersigned authority, on this date personally
11-20 appeared the declarant, and __________ and __________ as witnesses,
11-21 and all being duly sworn, the declarant said that the above
11-22 instrument was his or her Declaration of Appointment of Guardian
11-23 for the Declarant's Children in the Event of Declarant's Death or
11-24 Incapacity and that the declarant had made and executed it for the
11-25 purposes expressed in the declaration. The witnesses declared to
11-26 me that they are each 14 years of age or older, that they saw the
11-27 declarant sign the declaration, that they signed the declaration as
12-1 witnesses, and that the declarant appeared to them to be of sound
12-2 mind.
12-3 ______________________________
12-4 Declarant
12-5 ______________________________ ______________________________
12-6 Affiant Affiant
12-7 Subscribed and sworn to before me by the above named
12-8 declarant and affiants on this ___ day of __________, 20__ [19___].
12-9 ______________________________
12-10 Notary Public in and for the
12-11 State of Texas
12-12 My Commission expires:
12-13 ______________________________
12-14 (h) In this section, "self-proving affidavit" means an
12-15 affidavit the form and content of which substantially complies with
12-16 the requirements of Subsection (g) of this section.
12-17 SECTION 7. Subpart A, Part 3, Chapter XIII, Texas Probate
12-18 Code, is amended by adding Section 677B to read as follows:
12-19 Sec. 677B. PROOF OF WRITTEN DECLARATION OF CERTAIN PARENTS
12-20 TO DESIGNATE CHILDRENS' GUARDIAN. (a) In this section:
12-21 (1) "Declaration" means a written declaration of a
12-22 person that:
12-23 (A) appoints a guardian for the person's child
12-24 under Section 676(d) or 677(b) of this code; and
12-25 (B) satisfies the requirements of Section 677A
12-26 of this code.
12-27 (2) "Self-proving affidavit" means an affidavit the
13-1 form and content of which substantially complies with the
13-2 requirements of Section 677A(g) of this code.
13-3 (3) "Self-proving declaration" includes a self-proving
13-4 affidavit that is attached or annexed to a declaration.
13-5 (b) If a declaration is self-proved, the court may admit the
13-6 declaration into evidence without the testimony of witnesses
13-7 attesting to the competency of the declarant and the execution of
13-8 the declaration. Additional proof of the execution of the
13-9 declaration with the formalities and solemnities and under the
13-10 circumstances required to make it a valid declaration is not
13-11 necessary.
13-12 (c) At any time during the declarant's lifetime, a written
13-13 declaration described by Section 677A(a)(1) of this code may be
13-14 made self-proved in the same form and manner a will written wholly
13-15 in the handwriting of a testator is made self-proved under Section
13-16 60 of this code.
13-17 (d) A properly executed and witnessed self-proving
13-18 declaration and affidavit, including a declaration and affidavit
13-19 described by Section 677A(c) of this code, are prima facie evidence
13-20 that the declarant was competent at the time the declarant executed
13-21 the declaration and that the guardian named in the declaration
13-22 would serve the best interests of the ward.
13-23 (e) A written declaration described by Section 677A(a)(1) of
13-24 this code that is not self-proved may be proved in the same manner
13-25 a will written wholly in the handwriting of the testator is proved
13-26 under Section 84 of this code.
13-27 (f) A written declaration described by Section 677A(a)(2) of
14-1 this code that is not self-proved may be proved in the same manner
14-2 an attested written will produced in court is proved under Section
14-3 84 of this code.
14-4 SECTION 8. Section 679, Texas Probate Code, is amended to
14-5 read as follows:
14-6 Sec. 679. DESIGNATION OF GUARDIAN BEFORE NEED ARISES. (a)
14-7 A person other than an incapacitated person may designate by a
14-8 written declaration persons to serve as guardian of the person of
14-9 the declarant or the estate of the declarant if the declarant
14-10 becomes incapacitated. The declaration must be signed by the
14-11 declarant and be:
14-12 (1) written wholly in the handwriting of the
14-13 declarant; or
14-14 (2) attested to in the presence of the declarant by at
14-15 least two credible witnesses 14 years of age or older who are not
14-16 named as guardian or alternate guardian in the declaration.
14-17 (b) A declarant may, in the declaration, disqualify named
14-18 persons from serving as guardian of the declarant's person or
14-19 estate, and the persons named may not be appointed guardian under
14-20 any circumstances.
14-21 (c) A declaration that is not written wholly in the
14-22 handwriting of a declarant may be signed by another person for the
14-23 declarant under the direction of and in the presence of the
14-24 declarant.
14-25 (d) A declaration described by Subsection (a)(2) of this
14-26 section may [The declaration must] have attached a self-proving
14-27 affidavit signed by the declarant and the witnesses attesting to
15-1 the competence of the declarant and the execution of the
15-2 declaration. [A properly executed and witnessed declaration and
15-3 affidavit are prima facie evidence that the declarant was competent
15-4 at the time the declarant executed the declaration and that the
15-5 guardian named in the declaration would serve the best interests of
15-6 the ward.]
15-7 (e) [(d)] The declaration and any self-proving affidavit may
15-8 be filed with the court at any time after the application for
15-9 appointment of a guardian is filed and before a guardian is
15-10 appointed.
15-11 (f) Unless the court finds that the person designated in the
15-12 declaration to serve as guardian is disqualified or would not serve
15-13 the best interests of the ward, the court shall appoint the person
15-14 as guardian in preference to those otherwise entitled to serve as
15-15 guardian under this code. If the designated guardian does not
15-16 qualify, is dead, refuses to serve, resigns, or dies after being
15-17 appointed guardian, or is otherwise unavailable to serve as
15-18 guardian, the court shall appoint the next eligible designated
15-19 alternate guardian named in the declaration. If the guardian and
15-20 all alternate guardians do not qualify, are dead, refuse to serve,
15-21 or later die or resign, the court shall appoint another person to
15-22 serve as otherwise provided by this code.
15-23 (g) [(e)] The declarant may revoke a declaration in any
15-24 manner provided for the revocation of a will under Section 63 of
15-25 this code, including the subsequent reexecution of the declaration
15-26 in the manner required for the original declaration.
15-27 (h) [(f)] If a declarant designates the declarant's spouse
16-1 to serve as guardian under this section, and the declarant is
16-2 subsequently divorced from that spouse before a guardian is
16-3 appointed, the provision of the declaration designating the spouse
16-4 has no effect.
16-5 (i) [(g)] A declaration and affidavit may be in any form
16-6 adequate to clearly indicate the declarant's intention to designate
16-7 a guardian. The following form [forms] may, but need not, be used:
16-8 DECLARATION OF GUARDIAN IN THE EVENT OF LATER
16-9 INCAPACITY OR NEED OF GUARDIAN
16-10 I, __________, make this Declaration of Guardian, to operate
16-11 if the need for a guardian for me later arises.
16-12 1. I designate __________ to serve as guardian of my person,
16-13 __________ as first alternate guardian of my person, __________ as
16-14 second alternate guardian of my person, and __________ as third
16-15 alternate guardian of my person.
16-16 2. I designate __________ to serve as guardian of my estate,
16-17 __________ as first alternate guardian of my estate, __________ as
16-18 second alternate guardian of my estate, and __________ as third
16-19 alternate guardian of my estate.
16-20 3. If any guardian or alternate guardian dies, does not
16-21 qualify, or resigns, the next named alternate guardian becomes my
16-22 guardian.
16-23 4. I expressly disqualify the following persons from serving
16-24 as guardian of my person: __________, __________, and __________.
16-25 5. I expressly disqualify the following persons from serving
16-26 as guardian of my estate: __________, __________, and __________.
16-27 Signed this ___ day of __________, 20__ [19___].
17-1 ______________________________
17-2 Declarant
17-3 ______________________________ ______________________________
17-4 Witness Witness
17-5 SELF-PROVING AFFIDAVIT
17-6 Before me, the undersigned authority, on this date personally
17-7 appeared the declarant, and ____________ and ____________ as
17-8 witnesses, and all being duly sworn, the declarant said that the
17-9 above instrument was his or her Declaration of Guardian and that
17-10 the declarant had made and executed it for the purposes expressed
17-11 in the declaration. The witnesses declared to me that they are
17-12 each 14 years of age or older, that they saw the declarant sign the
17-13 declaration, that they signed the declaration as witnesses, and
17-14 that the declarant appeared to them to be of sound mind.
17-15 ______________________________
17-16 Declarant
17-17 ______________________________ ______________________________
17-18 Affiant Affiant
17-19 Subscribed and sworn to before me by the above named
17-20 declarant and affiants on this ____ day of __________, 20__ [19__].
17-21 _________________________
17-22 Notary Public in and for
17-23 the State of Texas
17-24 My Commission expires:
17-25 _________________________
17-26 (j) In this section, "self-proving affidavit" means an
17-27 affidavit the form and content of which substantially complies with
18-1 the requirements of Subsection (i) of this section.
18-2 SECTION 9. Subpart A, Part 3, Chapter XIII, Texas Probate
18-3 Code, is amended by adding Section 679A to read as follows:
18-4 Sec. 679A. PROOF OF WRITTEN DECLARATION TO DESIGNATE
18-5 GUARDIAN BEFORE NEED ARISES. (a) In this section:
18-6 (1) "Declaration" means a written declaration of a
18-7 person that:
18-8 (A) designates another person to serve as a
18-9 guardian of the person or estate of the declarant; and
18-10 (B) satisfies the requirements of Section 679 of
18-11 this code.
18-12 (2) "Self-proving affidavit" means an affidavit the
18-13 form and content of which substantially complies with the
18-14 requirements of Section 679(i) of this code.
18-15 (3) "Self-proving declaration" includes a self-proving
18-16 affidavit that is attached or annexed to a declaration.
18-17 (b) If a declaration is self-proved, the court may admit the
18-18 declaration into evidence without the testimony of witnesses
18-19 attesting to the competency of the declarant and the execution of
18-20 the declaration. Additional proof of the execution of the
18-21 declaration with the formalities and solemnities and under the
18-22 circumstances required to make it a valid declaration is not
18-23 necessary.
18-24 (c) At any time during the declarant's lifetime, a written
18-25 declaration described by Section 679(a)(1) of this code may be
18-26 made self-proved in the same form and manner a will written wholly
18-27 in the handwriting of a testator is made self-proved under Section
19-1 60 of this code.
19-2 (d) A properly executed and witnessed self-proving
19-3 declaration and affidavit, including a declaration and affidavit
19-4 described by Section 679(d) of this code, are prima facie evidence
19-5 that the declarant was competent at the time the declarant executed
19-6 the declaration and that the guardian named in the declaration
19-7 would serve the best interests of the ward.
19-8 (e) A written declaration described by Section 679(a)(1) of
19-9 this code that is not self-proved may be proved in the same manner
19-10 a will written wholly in the handwriting of the testator is proved
19-11 under Section 84 of this code.
19-12 (f) A written declaration described by Section 679(a)(2) of
19-13 this code that is not self-proved may be proved in the same manner
19-14 an attested written will produced in court is proved under Section
19-15 84 of this code.
19-16 SECTION 10. Section 702(b), Texas Probate Code, is amended
19-17 to read as follows:
19-18 (b) A bond is not required to be given by a guardian that
19-19 is:
19-20 (1) a corporate fiduciary, as defined by Section 601
19-21 [601(5)] of this code; or
19-22 (2) a guardianship program operated by a county.
19-23 SECTION 11. Section 745(c), Texas Probate Code, is amended
19-24 to read as follows:
19-25 (c) When the estate of a minor ward consists only of cash or
19-26 cash equivalents in an amount of $50,000 [$25,000] or less, the
19-27 guardianship of the estate may be terminated and the assets paid to
20-1 the county clerk of the county in which the guardianship
20-2 proceeding is pending, and the clerk shall manage the funds as
20-3 provided by Section 887 of this code.
20-4 SECTION 12. Subpart D, Part 4, Chapter XIII, Texas Probate
20-5 Code, is amended by adding Sections 760A and 760B to read as
20-6 follows:
20-7 Sec. 760A. CHANGE OF RESIDENT AGENT. (a) A guardian may
20-8 change its resident agent to accept service of process in a
20-9 guardianship proceeding or other matter relating to the
20-10 guardianship by filing a statement of the change entitled
20-11 "Designation of Successor Resident Agent" with the court in which
20-12 the guardianship proceeding is pending. The statement must contain
20-13 the names and addresses of the:
20-14 (1) guardian;
20-15 (2) resident agent; and
20-16 (3) successor resident agent.
20-17 (b) The designation of a successor resident agent made in a
20-18 statement filed under this section takes effect on the date on
20-19 which the statement is filed with the court.
20-20 Sec. 760B. RESIGNATION OF RESIDENT AGENT. (a) A resident
20-21 agent of a guardian may resign as the resident agent by giving
20-22 notice to the guardian and filing with the court in which the
20-23 guardianship proceeding is pending a statement entitled
20-24 "Resignation of Resident Agent" that:
20-25 (1) contains the name of the guardian;
20-26 (2) contains the address of the guardian most recently
20-27 known by the resident agent;
21-1 (3) states that notice of the resignation has been
21-2 given to the guardian and that the guardian does not have a
21-3 resident agent; and
21-4 (4) contains the date on which the notice of the
21-5 resignation was given to the guardian.
21-6 (b) The resident agent shall send, by certified mail, return
21-7 receipt requested, a copy of a resignation statement filed under
21-8 Subsection (a) of this section to:
21-9 (1) the guardian at the address most recently known by
21-10 the agent; and
21-11 (2) each party in the case or the party's attorney or
21-12 other designated representative of record.
21-13 (c) The resignation of a resident agent takes effect on the
21-14 date on which the court enters an order accepting the agent's
21-15 resignation. A court may not enter an order accepting the agent's
21-16 resignation unless the agent complies with the requirements of this
21-17 section.
21-18 SECTION 13. Section 761, Texas Probate Code, is amended to
21-19 read as follows:
21-20 Sec. 761. REMOVAL. (a) The court, on its own motion or on
21-21 motion of any interested person, including the ward, and without
21-22 notice, may remove any guardian, appointed under this chapter, who:
21-23 (1) neglects to qualify in the manner and time
21-24 required by law;
21-25 (2) fails to return within 90 days after
21-26 qualification, unless the time is extended by order of the court,
21-27 an inventory of the property of the guardianship estate and list of
22-1 claims that have come to the guardian's knowledge;
22-2 (3) having been required to give a new bond, fails to
22-3 do so within the time prescribed;
22-4 (4) absents himself from the state for a period of
22-5 three months at one time without permission of the court, or
22-6 removes from the state;
22-7 (5) cannot be served with notices or other processes
22-8 because of the fact that:
22-9 (A) the guardian's whereabouts are unknown;
22-10 (B) [, or because] the guardian is eluding
22-11 service; or
22-12 (C) the guardian is a nonresident of this state
22-13 who does not have a resident agent to accept service of process in
22-14 any guardianship proceeding or other matter relating to the
22-15 guardianship;
22-16 (6) has misapplied, embezzled, or removed from the
22-17 state, or is about to misapply, embezzle, or remove from the state,
22-18 all or any part of the property committed to the guardian's care;
22-19 or
22-20 (7) has cruelly treated a ward, or has neglected to
22-21 educate or maintain the ward as liberally as the means of the ward
22-22 and the condition of the ward's estate permit.
22-23 (b) The court may remove a personal representative under
22-24 Subsection (a)(6) or (7) of this section only on the presentation
22-25 of clear and convincing evidence given under oath.
22-26 (c) The court may remove a guardian on its own motion, or on
22-27 the complaint of an interested person, after the guardian has been
23-1 cited by personal service to answer at a time and place set in the
23-2 notice, when:
23-3 (1) sufficient grounds appear to support belief that
23-4 the guardian has misapplied, embezzled, or removed from the state,
23-5 or that the guardian is about to misapply, embezzle, or remove from
23-6 the state, all or any part of the property committed to the care of
23-7 the guardian;
23-8 (2) the guardian fails to return any account or report
23-9 that is required by law to be made;
23-10 (3) the guardian fails to obey any proper order of the
23-11 court having jurisdiction with respect to the performance of the
23-12 guardian's duties;
23-13 (4) the guardian is proved to have been guilty of
23-14 gross misconduct or mismanagement in the performance of the duties
23-15 of the guardian;
23-16 (5) the guardian becomes incapacitated, or is
23-17 sentenced to the penitentiary, or from any other cause becomes
23-18 incapable of properly performing the duties of the guardian's
23-19 trust;
23-20 (6) as guardian of the person, the guardian cruelly
23-21 treats the ward, or neglects to educate or maintain the ward as
23-22 liberally as the means of the ward's estate and the ward's ability
23-23 or condition permit;
23-24 (7) the guardian interferes with the ward's progress
23-25 or participation in programs in the community; [or]
23-26 (8) the guardian fails to comply with the requirements
23-27 of Section 697 of this code; or
24-1 (9) the court determines that, because of the
24-2 dissolution of the joint guardians' marriage, the termination of
24-3 the guardians' joint appointment and the continuation of only one
24-4 of the joint guardians as the sole guardian is in the best interest
24-5 of the ward.
24-6 (d) The order of removal shall state the cause of the
24-7 removal. It must require that any letters issued to the person who
24-8 is removed shall, if the removed person has been personally served
24-9 with citation, be surrendered and that all those letters be
24-10 cancelled of record, whether or not delivered. It must further
24-11 require, as to all the estate remaining in the hands of a removed
24-12 person, delivery of the estate to the person or persons entitled to
24-13 the estate, or to one who has been appointed and has qualified as
24-14 successor guardian, and as to the person of a ward, that control be
24-15 relinquished as required in the order.
24-16 (e) If a joint guardian is removed under Subsection (c)(9)
24-17 of this section, the other joint guardian is entitled to continue
24-18 to serve as the sole guardian unless removed for a reason other
24-19 than the dissolution of the joint guardians' marriage.
24-20 (f) If the necessity exists, the court may immediately
24-21 appoint a successor but may not discharge the person removed as
24-22 guardian of the estate or release the person or the sureties on the
24-23 person's bond until final order or judgment is rendered on the
24-24 final account of the guardian.
24-25 (g) [(f)] The court at any time may order a person removed
24-26 as guardian under this section who has all or part of the estate of
24-27 a ward to deliver all or part of the ward's estate to a person who
25-1 has been appointed and has qualified as successor guardian.
25-2 SECTION 14. Subpart M, Part 4, Chapter XIII, Texas Probate
25-3 Code, is amended by adding Section 865A to read as follows:
25-4 Sec. 865A. INSPECTION OF CERTAIN INSTRUMENT FOR ESTATE
25-5 PLANNING PURPOSES. (a) On the filing of an application under
25-6 Section 865 of this code, the guardian of the ward's estate may
25-7 apply to the court for an order to seek an in camera inspection of
25-8 a true copy of a will, codicil, trust, or other estate planning
25-9 instrument of the ward as a means of obtaining access to the
25-10 instrument for purposes of establishing an estate plan under
25-11 Section 865 of this code.
25-12 (b) An application filed under this section must:
25-13 (1) be sworn to by the guardian;
25-14 (2) list all of the instruments requested for
25-15 inspection; and
25-16 (3) state one or more reasons supporting the necessity
25-17 to inspect each requested instrument for the purpose described by
25-18 Subsection (a) of this section.
25-19 (c) A person who files an application under this section
25-20 shall send a copy of the application to:
25-21 (1) each person who has custody of an instrument
25-22 listed in the application;
25-23 (2) the ward's spouse;
25-24 (3) the ward's dependents;
25-25 (4) all devisees under a will, trust, or other
25-26 beneficial instrument relating to the ward's estate; and
25-27 (5) any other person as directed by the court.
26-1 (d) Notice required by Subsection (c) of this section must
26-2 be delivered by certified mail to a person described by Subsection
26-3 (c)(2), (3), (4), or (5) of this section and by registered or
26-4 certified mail to a person described by Subsection (c)(1) of this
26-5 section. After the 10th day after the date on which the applicant
26-6 complies with the notice requirement, the applicant may request
26-7 that a hearing be held on the application. Notice of the date,
26-8 time, and place of the hearing must be given by the applicant to
26-9 each person described by Subsection (c)(1) of this section when the
26-10 court sets a date for a hearing on the application.
26-11 (e) After the conclusion of a hearing on the application and
26-12 on a finding that there is good cause for an in camera inspection
26-13 of a requested instrument, the court shall direct the person that
26-14 has custody of the requested will, codicil, trust, or other estate
26-15 planning instrument to deliver a true copy of the instrument to the
26-16 court for in camera inspection only. After conducting an in camera
26-17 review of the instrument, the court, if good cause exists, shall
26-18 release all or part of the instrument to the applicant only for the
26-19 purpose described by Subsection (a) of this section.
26-20 (f) The court may appoint a guardian ad litem for the ward
26-21 or an interested party at any stage of the proceedings if it is
26-22 considered advisable for the protection of the ward or the
26-23 interested party.
26-24 (g) An attorney does not violate the attorney-client
26-25 privilege solely by complying with a court order to release an
26-26 instrument subject to this section. Notwithstanding Section
26-27 22.004, Government Code, the supreme court may not amend or adopt
27-1 rules in conflict with this subsection.
27-2 SECTION 15. Section 875(c), Texas Probate Code, is amended to
27-3 read as follows:
27-4 (c) A sworn, written application for the appointment of a
27-5 temporary guardian may be filed before the court appoints a
27-6 temporary guardian. The application must be filed not later than
27-7 the end of the next business day of the court after the date of
27-8 appointment of the temporary guardian. The application must state:
27-9 (1) the name and address of the person who is the
27-10 subject of the guardianship proceeding;
27-11 (2) the danger to the person or property alleged to be
27-12 imminent;
27-13 (3) the type of appointment and the particular
27-14 protection and assistance being requested;
27-15 (4) the facts and reasons supporting the allegations
27-16 and requests;
27-17 (5) the name, address, and qualification of the
27-18 proposed temporary guardian;
27-19 (6) the name, address, and interest of the applicant;
27-20 and
27-21 (7) [the social security numbers of the applicant and
27-22 proposed ward; and]
27-23 [(8)] if applicable, that the proposed temporary
27-24 guardian is a private professional guardian who has complied with
27-25 the requirements of Section 697 of this code.
27-26 SECTION 16. Section 883, Texas Probate Code, is amended to
27-27 read as follows:
28-1 Sec. 883. INCAPACITATED SPOUSE. (a) Except as provided by
28-2 Subsection (c) of this section, when [When] a husband or wife is
28-3 judicially declared to be incapacitated:
28-4 (1) [,] the other spouse, in the capacity of surviving
28-5 partner of the marital partnership, acquires full power to manage,
28-6 control, and dispose of the entire community estate as community
28-7 administrator, including the part of the community estate that the
28-8 incapacitated spouse legally has the power to manage in the absence
28-9 of the incapacity, without an administration; and
28-10 (2) if the incapacitated spouse owns separate
28-11 property, the court shall appoint the other spouse or another
28-12 person or entity, in the order of precedence established under
28-13 Section 677 of this code, as guardian of the estate to administer
28-14 only the separate property of the incapacitated spouse.
28-15 (b) The spouse who is not incapacitated is presumed to be
28-16 suitable and qualified to serve as community administrator. [If
28-17 the court finds that it is in the best interest of the
28-18 incapacitated spouse and that the other spouse would not be
28-19 disqualified to serve as guardian under Section 681 of this code,
28-20 guardianship of the estate of the incapacitated spouse may not be
28-21 necessary when the other spouse is not incapacitated unless the
28-22 incapacitated spouse owns separate property, and the guardianship
28-23 will be of the separate property only.] The qualification of a
28-24 guardian of the estate of the separate property of an incapacitated
28-25 spouse as required under Subsection (a) of this section does not
28-26 deprive the competent spouse of the right to manage, control, and
28-27 dispose of the entire community estate as provided in this chapter.
29-1 (c) If a spouse who is not incapacitated is removed as
29-2 community administrator or if the court finds that the spouse who
29-3 is not incapacitated would be disqualified to serve as guardian
29-4 under Section 681 of this code or is not suitable to serve as
29-5 community administrator for any other reason, the court:
29-6 (1) shall appoint a guardian of the estate for the
29-7 incapacitated spouse if the court:
29-8 (A) has not appointed a guardian of the estate
29-9 under Subsection (a)(2) of this section; or
29-10 (B) has appointed the spouse who is not
29-11 incapacitated as guardian of the estate under Subsection (a)(2) of
29-12 this section;
29-13 (2) after taking into consideration the financial
29-14 circumstances of the spouses and any other relevant factors, may
29-15 order the spouse who is not incapacitated to deliver to the
29-16 guardian of the estate of the incapacitated spouse a portion, not
29-17 to exceed one-half, of the community property that is subject to
29-18 the spouses' joint management, control, and disposition under
29-19 Section 3.102, Family Code; and
29-20 (3) shall authorize the guardian of the estate of the
29-21 incapacitated spouse to administer:
29-22 (A) any separate property of the incapacitated
29-23 spouse;
29-24 (B) any community property that is subject to
29-25 the incapacitated spouse's sole management, control, and
29-26 disposition under Section 3.102, Family Code;
29-27 (C) any community property delivered to the
30-1 guardian of the estate under Subdivision (2) of this subsection;
30-2 and
30-3 (D) any income earned on property described in
30-4 this subsection.
30-5 (d) On a person's removal as community administrator or on
30-6 qualification of a guardian of the estate of the person's
30-7 incapacitated spouse under Subsection (c) of this section, as
30-8 appropriate, a spouse who is not incapacitated shall continue to
30-9 administer:
30-10 (1) the person's own separate property;
30-11 (2) any community property that is subject to the
30-12 person's sole management, control, and disposition under Section
30-13 3.102, Family Code;
30-14 (3) any community property subject to the spouses'
30-15 joint management, control, and disposition under Section 3.102,
30-16 Family Code, unless the person is required to deliver a portion of
30-17 that community property to the guardian of the estate of the
30-18 person's incapacitated spouse under Subsection (c)(2) of this
30-19 section, in which event, the person shall continue to administer
30-20 only the portion of the community property remaining after
30-21 delivery; and
30-22 (4) any income earned on property described in this
30-23 subsection the person is authorized to administer.
30-24 (e) The duties and obligations between spouses, including
30-25 the duty to support the other spouse, and the rights of any
30-26 creditor of either spouse are not affected by the manner in which
30-27 community property is administered under this section.
31-1 SECTION 17. Section 883A, Texas Probate Code, is amended to
31-2 read as follows:
31-3 Sec. 883A. RECOVERY OF CAPACITY. The special powers of
31-4 management, control, and disposition vested in the community
31-5 administrator [same spouse] by this chapter [code] shall terminate
31-6 when the decree of a court of competent jurisdiction finds that the
31-7 mental capacity of the incapacitated [other] spouse has been
31-8 recovered.
31-9 SECTION 18. Subpart C, Part 5, Chapter XIII, Texas Probate
31-10 Code, is amended by adding Sections 883B, 883C, and 883D to read as
31-11 follows:
31-12 Sec. 883B. ACCOUNTING, INVENTORY, AND APPRAISEMENT BY
31-13 COMMUNITY ADMINISTRATOR. (a) On its own motion or on the motion of
31-14 an interested person for good cause shown, the court may order a
31-15 community administrator to file a verified, full, and detailed
31-16 inventory and appraisement of:
31-17 (1) any community property that is subject to the
31-18 incapacitated spouse's sole management, control, and disposition
31-19 under Section 3.102, Family Code;
31-20 (2) any community property subject to the spouses'
31-21 joint management, control, and disposition under Section 3.102,
31-22 Family Code; and
31-23 (3) any income earned on property described in this
31-24 subsection.
31-25 (b) At any time after the expiration of 15 months after the
31-26 date that a community administrator's spouse is judicially declared
31-27 to be incapacitated, the court, on its own motion or on the motion
32-1 of an interested person for good cause shown, may order the
32-2 community administrator to prepare and file an accounting of:
32-3 (1) any community property that is subject to the
32-4 incapacitated spouse's sole management, control, and disposition
32-5 under Section 3.102, Family Code;
32-6 (2) any community property subject to the spouses'
32-7 joint management, control, and disposition under Section 3.102,
32-8 Family Code; and
32-9 (3) any income earned on property described in this
32-10 subsection.
32-11 (c) An inventory and appraisement ordered under Subsection
32-12 (a) of this section must:
32-13 (1) be prepared in the same form and manner that is
32-14 required of a guardian under Section 729 of this code; and
32-15 (2) be filed not later than the 90th day after the
32-16 date on which the order is issued.
32-17 (d) An accounting ordered under Subsection (b) of this
32-18 section must:
32-19 (1) be prepared in the same form and manner that is
32-20 required of a guardian under Section 741 of this code, except that
32-21 the requirement that an accounting be filed annually with the
32-22 county clerk does not apply; and
32-23 (2) be filed not later than the 60th day after the
32-24 date on which the order is issued.
32-25 (e) After an initial accounting has been filed by a
32-26 community administrator under this section, the court, on the
32-27 motion of an interested person for good cause shown, may order the
33-1 community administrator to file subsequent periodic accountings at
33-2 intervals of not less than 12 months.
33-3 Sec. 883C. REMOVAL OF COMMUNITY ADMINISTRATOR. (a) A court,
33-4 on its own motion or on the motion of an interested person and
33-5 after the community administrator has been cited by personal
33-6 service to answer at a time and place specified in the notice, may
33-7 remove a community administrator if:
33-8 (1) the community administrator fails to comply with a
33-9 court order for an inventory and appraisement, accounting, or
33-10 subsequent accounting under Section 883B of this code;
33-11 (2) sufficient grounds appear to support belief that
33-12 the community administrator has misapplied or embezzled, or that
33-13 the community administrator is about to misapply or embezzle, all
33-14 or any part of the property committed to the care of the community
33-15 administrator;
33-16 (3) the community administrator is proved to have been
33-17 guilty of gross misconduct or gross mismanagement in the
33-18 performance of duties as community administrator; or
33-19 (4) the community administrator becomes an
33-20 incapacitated person, is sentenced to the penitentiary, or for any
33-21 other reason becomes legally incapacitated from properly performing
33-22 the community administrator's fiduciary duties.
33-23 (b) The order of removal must state the cause of removal and
33-24 shall direct by order the disposition of the assets remaining in
33-25 the name or under the control of the removed community
33-26 administrator.
33-27 (c) A community administrator who defends an action for the
34-1 removal of the community administrator in good faith, regardless of
34-2 whether successful, is entitled to recover from the incapacitated
34-3 spouse's part of the community estate the community administrator's
34-4 necessary expenses and disbursements in the removal proceedings,
34-5 including reasonable attorney's fees.
34-6 Sec. 883D. APPOINTMENT OF ATTORNEY AD LITEM FOR
34-7 INCAPACITATED SPOUSE. (a) The court shall appoint an attorney ad
34-8 litem to represent the interests of an incapacitated spouse in a
34-9 proceeding to remove a community administrator or other proceeding
34-10 brought under this subpart.
34-11 (b) The attorney ad litem may demand from the community
34-12 administrator an accounting or inventory and appraisement of the
34-13 incapacitated spouse's part of the community estate being managed
34-14 by the community administrator.
34-15 (c) A community administrator shall comply with a demand
34-16 made under this section not later than the 60th day after the date
34-17 on which the community administrator receives the demand.
34-18 (d) An accounting or inventory and appraisement returned
34-19 under this subsection must be prepared in the form and manner
34-20 required by the attorney ad litem, and the attorney ad litem may
34-21 require the community administrator to file the accounting and
34-22 inventory and appraisement with the court.
34-23 SECTION 19. Section 884, Texas Probate Code, is amended to
34-24 read as follows:
34-25 Sec. 884. DELIVERY TO SPOUSE. A guardian of the estate of an
34-26 incapacitated married person who, as guardian, is administering
34-27 community property as part of the estate of the ward, shall deliver
35-1 on demand the community property to the spouse who is not
35-2 incapacitated if the spouse becomes community administrator under
35-3 Section 883 of this code.
35-4 SECTION 20. Subpart C, Part 5, Chapter XIII, Texas Probate
35-5 Code, is amended by adding Section 884A to read as follows:
35-6 Sec. 884A. LAWSUIT INFORMATION. A person whose spouse is
35-7 judicially declared to be incapacitated and who acquires the power
35-8 to manage, control, and dispose of the entire community estate
35-9 under Section 883 of this code shall inform the court in writing of
35-10 any suit filed by or on behalf of the person that:
35-11 (1) is a suit for dissolution of the marriage of the
35-12 person and the person's incapacitated spouse; or
35-13 (2) names the incapacitated spouse as a defendant.
35-14 SECTION 21. The changes in law made by this Act to Section
35-15 485, Texas Probate Code, apply only to a durable power of attorney
35-16 or statutory durable power of attorney that is executed on or after
35-17 the effective date of this Act. A durable power of attorney or
35-18 statutory durable power of attorney that is executed before the
35-19 effective date of this Act is governed by the law in effect on the
35-20 date the power of attorney was executed, and the former law is
35-21 continued in effect for that purpose.
35-22 SECTION 22. The changes in law made by this Act to Sections
35-23 676(d) and 677(b), Texas Probate Code, apply only to a will or
35-24 written declaration for the appointment of a guardian that is
35-25 executed on or after the effective date of this Act. A will or
35-26 written declaration for the appointment of a guardian that is
35-27 executed before the effective date of this Act is governed by the
36-1 law in effect on the date the will or declaration was executed, and
36-2 the former law is continued in effect for that purpose.
36-3 SECTION 23. The changes in law made by this Act to Sections
36-4 677A and 679, Texas Probate Code, and Sections 677B and 679A, Texas
36-5 Probate Code, as added by this Act, apply only to a written
36-6 declaration for the appointment of a guardian that is executed on
36-7 or after the effective date of this Act. A written declaration for
36-8 the appointment of a guardian that is executed before the effective
36-9 date of this Act is governed by the law in effect on the date the
36-10 declaration was executed, and the former law is continued in effect
36-11 for that purpose.
36-12 SECTION 24. Sections 760A and 760B, Texas Probate Code, as
36-13 added by this Act, apply only to a change in designation of or a
36-14 resignation of a resident agent made on or after the effective date
36-15 of this Act. A change in designation of or the resignation of a
36-16 resident agent made before the effective date of this Act is
36-17 governed by the law in effect when the change in designation of or
36-18 the resignation of the resident agent occurred, and the former law
36-19 is continued in effect for that purpose.
36-20 SECTION 25. The changes in law made by this Act to Section
36-21 761, Texas Probate Code, apply only to a motion or complaint for
36-22 the removal of a guardian made or filed on or after the effective
36-23 date of this Act. A motion or complaint for the removal of a
36-24 guardian made or filed before the effective date of this Act is
36-25 governed by the law in effect on the date the motion or complaint
36-26 was made or filed, and the former law is continued in effect for
36-27 that purpose.
37-1 SECTION 26. The changes in law made by Sections 2, 10, 16,
37-2 17, and 19 of this Act and Sections 883B, 883C, and 883D, Texas
37-3 Probate Code, as added by this Act, apply only to the estate of a
37-4 person for which a motion to judicially declare the person
37-5 incapacitated is filed on or after the effective date of this Act.
37-6 The estate of a person for which a motion to judicially declare the
37-7 person incapacitated is filed before the effective date of this Act
37-8 is governed by the law in effect when the motion was filed, and the
37-9 former law is continued in effect for that purpose.
37-10 SECTION 27. The change in law made by this Act to Section
37-11 745(c), Texas Probate Code, applies only to an application to close
37-12 a guardianship that is filed on or after the effective date of this
37-13 Act. An application to close a guardianship that is filed before
37-14 the effective date of this Act is governed by the law in effect on
37-15 the date the application was filed, and the former law is continued
37-16 in effect for that purpose.
37-17 SECTION 28. The change in law made by this Act to Section
37-18 875(c), Texas Probate Code, applies only to an application for the
37-19 appointment of a temporary guardian that is filed on or after the
37-20 effective date of this Act. An application for the appointment of
37-21 a temporary guardian that is filed before the effective date of
37-22 this Act is governed by the law in effect on the date the
37-23 application was filed, and the former law is continued in effect
37-24 for that purpose.
37-25 SECTION 29. This Act takes effect September 1, 2001.
37-26 COMMITTEE AMENDMENT NO. 1
37-27 Amend H.B. 1132 by adding the following appropriately
38-1 numbered SECTIONS to the bill and renumbering the existing SECTIONS
38-2 of the bill appropriately:
38-3 SECTION 21. Section 3.301, Family Code, is amended to read as
38-4 follows:
38-5 Sec. 3.301. [INCAPACITATED,] MISSING, ABANDONED, OR
38-6 SEPARATED SPOUSE. (a) A spouse may file a sworn petition stating
38-7 the facts that make it desirable for the petitioning spouse to
38-8 manage, control, and dispose of community property described or
38-9 defined in the petition that would otherwise be subject to the sole
38-10 or joint management, control, and disposition of the other spouse
38-11 if:
38-12 (1) [because of physical or mental incapacity, the
38-13 other spouse is unable to manage, control, or dispose of the
38-14 community property subject to that spouse's sole or joint
38-15 management, control, and disposition;]
38-16 [(2)] the other spouse has disappeared and that
38-17 spouse's location remains unknown to the petitioning spouse, unless
38-18 the spouse is reported to be a prisoner of war or missing on public
38-19 service;
38-20 (2) [(3)] the other spouse has permanently abandoned
38-21 the petitioning spouse; or
38-22 (3) [(4)] the spouses are permanently separated.
38-23 (b) The petition may be filed in a court in the county in
38-24 which the petitioner resided at the time the [incapacity or]
38-25 separation began, or the abandonment or disappearance occurred, not
38-26 earlier than the 60th day after the date of the occurrence of the
38-27 event. If both spouses are nonresidents of this state at the time
39-1 the petition is filed, the petition may be filed in a court in a
39-2 county in which any part of the described or defined community
39-3 property is located.
39-4 SECTION 22. Section 3.307(b), Family Code, is amended to read
39-5 as follows:
39-6 (b) On the motion of either spouse, the court shall amend or
39-7 vacate the original order after notice and hearing if:
39-8 (1) [the incapacitated spouse's capacity is restored;]
39-9 [(2)] the spouse who disappeared reappears;
39-10 (2) [(3)] the abandonment or permanent separation
39-11 ends; or
39-12 (3) [(4)] the spouse who was reported to be a prisoner
39-13 of war or missing on public service returns.
39-14 SECTION 23. Section 5.002, Family Code, is amended to read as
39-15 follows:
39-16 Sec. 5.002. SALE OF SEPARATE HOMESTEAD AFTER [FOR
39-17 INCAPACITATED] SPOUSE JUDICIALLY DECLARED INCAPACITATED. If the
39-18 homestead is the separate property of a spouse and the other spouse
39-19 has been judicially declared incapacitated by a court exercising
39-20 original jurisdiction over guardianship and other matters under
39-21 Chapter XIII, Texas Probate Code, the owner may sell, convey, or
39-22 encumber the homestead without the joinder of the other spouse.
39-23 SECTION 24. Section 5.101, Family Code, is amended to read as
39-24 follows:
39-25 Sec. 5.101. SALE OF SEPARATE HOMESTEAD UNDER UNUSUAL
39-26 CIRCUMSTANCES. If the homestead is the separate property of a
39-27 spouse, that spouse may file a sworn petition that gives a
40-1 description of the property, states the facts that make it
40-2 desirable for the spouse to sell, convey, or encumber the homestead
40-3 without the joinder of the other spouse, and alleges that the other
40-4 spouse:
40-5 (1) [is incapacitated, whether judicially declared
40-6 incapacitated or not;]
40-7 [(2)] has disappeared and that the location of the
40-8 spouse remains unknown to the petitioning spouse;
40-9 (2) [(3)] has permanently abandoned the homestead and
40-10 the petitioning spouse;
40-11 (3) [(4)] has permanently abandoned the homestead and
40-12 the spouses are permanently separated; or
40-13 (4) [(5)] has been reported by an executive department
40-14 of the United States to be a prisoner of war or missing on public
40-15 service of the United States.
40-16 SECTION 25. Section 5.102, Family Code, is amended to read as
40-17 follows:
40-18 Sec. 5.102. SALE OF COMMUNITY HOMESTEAD UNDER UNUSUAL
40-19 CIRCUMSTANCES. If the homestead is the community property of the
40-20 spouses, one spouse may file a sworn petition that gives a
40-21 description of the property, states the facts that make it
40-22 desirable for the petitioning spouse to sell, convey, or encumber
40-23 the homestead without the joinder of the other spouse, and alleges
40-24 that the other spouse:
40-25 (1) [is incapacitated, whether judicially declared
40-26 incapacitated or not;]
40-27 [(2)] has disappeared and that the location of the
41-1 spouse remains unknown to the petitioning spouse;
41-2 (2) [(3)] has permanently abandoned the homestead and
41-3 the petitioning spouse;
41-4 (3) [(4)] has permanently abandoned the homestead and
41-5 the spouses are permanently separated; or
41-6 (4) [(5)] has been reported by an executive department
41-7 of the United States to be a prisoner of war or missing on public
41-8 service of the United States.
41-9 SECTION 26. Section 5.103, Family Code, is amended to read as
41-10 follows:
41-11 Sec. 5.103. TIME FOR FILING PETITION. The petitioning spouse
41-12 may file the petition in a court of the county in which any portion
41-13 of the property is located not earlier than the 60th day after the
41-14 date of the occurrence of an event described by Sections
41-15 5.101(1)-(3) [5.101(1)-(4)] and 5.102(1)-(3) [5.102(1)-(4)] or not
41-16 less than six months after the date the other spouse had been
41-17 reported to be a prisoner of war or missing on public service.
41-18 SECTION 27. Section 5.107, Family Code, is redesignated as
41-19 Section 5.003, Family Code, and amended to read as follows:
41-20 Sec. 5.003 [5.107]. SALE OF COMMUNITY HOMESTEAD AFTER [FOR]
41-21 SPOUSE JUDICIALLY DECLARED INCAPACITATED. If the homestead is the
41-22 community property of the spouses and one spouse has been
41-23 judicially declared incapacitated by a court exercising original
41-24 jurisdiction over guardianship and other matters under Chapter
41-25 XIII, Texas Probate Code, the competent spouse may sell, convey, or
41-26 encumber the homestead without the joinder of the other spouse.
41-27 SECTION 28. The change in law made by this Act to Sections
42-1 3.301, 3.307(b), 5.101, 5.102, and 5.103, Family Code, applies only
42-2 to a proceeding in which an original petition is filed on or after
42-3 the effective date of this Act. A proceeding in which the original
42-4 petition was filed before the effective date of this Act is
42-5 governed by the law in effect on the date the petition was filed,
42-6 and the former law is continued in effect for that purpose.
42-7 77R8892 CLG-D Deshotel