1-1 By: Thompson, Naishtat (Senate Sponsor - Bernsen) H.B. No. 1132
1-2 (In the Senate - Received from the House March 26, 2001;
1-3 March 27, 2001, read first time and referred to Committee on
1-4 Jurisprudence; April 24, 2001, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 7, Nays 0;
1-6 April 24, 2001, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR H.B. No. 1132 By: Bernsen
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to guardianships and other related matters concerning
1-11 incapacitated persons.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 485, Texas Probate Code, is amended to
1-14 read as follows:
1-15 Sec. 485. RELATION OF ATTORNEY IN FACT OR AGENT TO
1-16 COURT-APPOINTED GUARDIAN OF ESTATE. (a) If, after execution of a
1-17 durable power of attorney, a court of the principal's domicile
1-18 appoints a permanent guardian of the estate of the principal, the
1-19 powers of the attorney in fact or agent terminate on the
1-20 qualification of the guardian of the estate, and the attorney in
1-21 fact or agent shall deliver to the guardian of the estate all
1-22 assets of the estate of the ward in the attorney's or agent's
1-23 possession and shall account to the guardian of the estate as the
1-24 attorney or agent would to the principal had the principal
1-25 terminated his powers.
1-26 (b) If, after execution of a durable power of attorney, a
1-27 court of the principal's domicile appoints a temporary guardian of
1-28 the estate of the principal, the court may suspend the powers of
1-29 the attorney in fact or agent on the qualification of the temporary
1-30 guardian of the estate until the date on which the term of the
1-31 temporary guardian expires.
1-32 (c) Subsection (b) of this section may not be construed to
1-33 prohibit the application for or issuance of a temporary restraining
1-34 order under applicable law.
1-35 SECTION 2. Section 601, Texas Probate Code, is amended to
1-36 read as follows:
1-37 Sec. 601. DEFINITIONS. In this chapter:
1-38 (1) "Attorney ad litem" means an attorney who is
1-39 appointed by a court to represent and advocate on behalf of a
1-40 proposed ward, an incapacitated person, or an unborn person in a
1-41 guardianship proceeding.
1-42 (2) "Authorized corporate surety" means a domestic or
1-43 foreign corporation authorized to do business in this state to
1-44 issue surety, guaranty, or indemnity bonds guaranteeing the
1-45 fidelity of guardians.
1-46 (3) "Child" includes a biological or adopted child,
1-47 whether adopted by a parent under a statutory procedure or by acts
1-48 of estoppel.
1-49 (4) "Claims" includes a liability against the estate
1-50 of a minor or an incapacitated person and debts due to the estate
1-51 of a minor or an incapacitated person.
1-52 (5) "Community administrator" means a spouse who is
1-53 authorized to manage, control, and dispose of the entire community
1-54 estate on the judicial declaration of incapacity of the other
1-55 spouse, including the part of the community estate that the other
1-56 spouse legally has the power to manage in the absence of the
1-57 incapacity.
1-58 (6) "Corporate fiduciary" means a financial
1-59 institution as defined by Section 201.101, Finance Code, having
1-60 trust powers, existing or doing business under the laws of this
1-61 state, another state, or the United States, that is authorized by
1-62 law to act under the order or appointment of any court of record,
1-63 without giving bond, as a guardian, receiver, trustee, executor, or
1-64 administrator, or, although without general depository powers, as a
2-1 depository for any money paid into court, or to become sole
2-2 guarantor or surety in or on any bond required to be given under
2-3 the laws of this state.
2-4 (7) [(6)] "Court investigator" means a person
2-5 appointed by a statutory probate court under Section 25.0025,
2-6 Government Code.
2-7 (8) [(7)] "Court" or "probate court" means a county
2-8 court in the exercise of its probate jurisdiction, a court created
2-9 by statute and authorized to exercise original probate
2-10 jurisdiction, or a district court exercising original probate
2-11 jurisdiction in contested matters.
2-12 (9) [(8)] "Estate" or "guardianship estate" means the
2-13 real and personal property of a ward or deceased ward, both as the
2-14 property originally existed and as has from time to time changed in
2-15 form by sale, reinvestment, or otherwise, and as augmented by any
2-16 accretions and additions to (including any property to be
2-17 distributed to the representative of the deceased ward by the
2-18 trustee of a trust that terminates on the ward's death) or
2-19 substitutions for the property, and as diminished by any decreases
2-20 to or distributions from the property.
2-21 (10) [(9)] "Exempt property" refers to that property
2-22 of a deceased ward's estate that is exempt from execution or forced
2-23 sale by the constitution or laws of this state, and to the
2-24 allowance in lieu of the property.
2-25 (11) [(10)] "Guardian" means a person who is appointed
2-26 guardian under Section 693 of this code, or a temporary or
2-27 successor guardian. Except as expressly provided otherwise,
2-28 "guardian" includes the guardian of the estate and the guardian of
2-29 the person of an incapacitated person.
2-30 (12) [(11)] "Guardian ad litem" means a person who is
2-31 appointed by a court to represent the best interests of an
2-32 incapacitated person in a guardianship proceeding.
2-33 (13) [(12)] "Guardianship program" means a local,
2-34 county, or regional program that provides guardianship and related
2-35 services to an incapacitated person or other person who needs
2-36 assistance in making decisions concerning the person's own welfare
2-37 or financial affairs.
2-38 (14) [(13)] "Incapacitated person" means:
2-39 (A) a minor;
2-40 (B) an adult individual who, because of a
2-41 physical or mental condition, is substantially unable to provide
2-42 food, clothing, or shelter for himself or herself, to care for the
2-43 individual's own physical health, or to manage the individual's own
2-44 financial affairs; or
2-45 (C) a person who must have a guardian appointed
2-46 to receive funds due the person from any governmental source.
2-47 (15) [(14)] "Interested persons" or "persons
2-48 interested" means an heir, devisee, spouse, creditor, or any other
2-49 person having a property right in, or claim against, the estate
2-50 being administered or a person interested in the welfare of an
2-51 incapacitated person, including a minor.
2-52 (16) [(15)] "Minor" means a person who is younger than
2-53 18 years of age and who has never been married or who has not had
2-54 the person's disabilities of minority removed for general purposes.
2-55 (17) [(16)] "Minutes" means the guardianship minutes.
2-56 (18) [(17)] "Mortgage" or "lien" includes a deed of
2-57 trust; vendor's lien; chattel mortgage; mechanic's, materialman's,
2-58 or laborer's lien; judgment, attachment, or garnishment lien;
2-59 pledge by hypothecation; and a federal or state tax lien.
2-60 (19) [(18)] "Next of kin" includes an adopted child,
2-61 the descendants of an adopted child, and the adoptive parent of an
2-62 adopted child.
2-63 (20) [(19)] "Parent" means the mother of a child, a
2-64 man presumed to be the biological father of a child, a man who has
2-65 been adjudicated to be the biological father of a child by a court
2-66 of competent jurisdiction, or an adoptive mother or father of a
2-67 child, but does not include a parent as to whom the parent-child
2-68 relationship has been terminated.
2-69 (21) [(20)] "Person" includes natural persons,
3-1 corporations, and guardianship programs.
3-2 (22) [(21)] "Personal property" includes an interest
3-3 in goods, money, choses in action, evidence of debts, and chattels
3-4 real.
3-5 (23) [(22)] "Personal representative" or
3-6 "representative" includes a guardian, and a successor guardian.
3-7 (24) [(23)] "Private professional guardian" means a
3-8 person, other than an attorney or a corporate fiduciary, who is
3-9 engaged in the business of providing guardianship services.
3-10 (25) [(24)] "Proceedings in guardianship,"
3-11 "guardianship matter," "guardianship matters," "guardianship
3-12 proceeding," and "proceedings for guardianship" are synonymous and
3-13 include a matter or proceeding relating to a guardianship or any
3-14 other matter addressed by this chapter.
3-15 (26) [(25)] "Property" includes both real and personal
3-16 property.
3-17 (27) [(26)] "Proposed ward" means a person alleged to
3-18 be incapacitated in a guardianship proceeding.
3-19 (28) [(27)] "Real property" includes estates and
3-20 interests in lands, corporeal or incorporeal, legal or equitable,
3-21 other than chattels real.
3-22 (29) [(28)] "Statutory probate court" means a
3-23 statutory court designated as a statutory probate court under
3-24 Chapter 25, Government Code. A county court at law exercising
3-25 probate jurisdiction is not a statutory probate court under this
3-26 chapter unless the court is designated a statutory probate court
3-27 under Chapter 25, Government Code.
3-28 (30) [(29)] "Surety" includes a personal and a
3-29 corporate surety.
3-30 (31) [(30)] "Ward" is a person for whom a guardian has
3-31 been appointed.
3-32 (32) [(31)] The singular number includes the plural;
3-33 the plural number includes the singular.
3-34 (33) [(32)] The masculine gender includes the feminine
3-35 and neuter.
3-36 SECTION 3. Section 665(a), Texas Probate Code, is amended to
3-37 read as follows:
3-38 (a) The court may authorize compensation for a guardian or a
3-39 temporary guardian serving as a guardian of the person alone from
3-40 available funds of the ward's estate or other funds available for
3-41 that purpose. The court shall set the compensation in an amount
3-42 not exceeding five percent of the ward's gross income. In
3-43 determining whether to authorize compensation for a guardian under
3-44 this section, the court shall consider the ward's monthly income
3-45 from all sources and whether the ward receives medical assistance
3-46 under the state Medicaid program.
3-47 SECTION 4. Section 676, Texas Probate Code, is amended by
3-48 amending Subsection (d) and adding Subsections (e)-(g) to read as
3-49 follows:
3-50 (d) Notwithstanding Subsection (b) of this section and
3-51 Section 690 of this code, the [The] surviving parent of a minor may
3-52 by will or written declaration appoint any eligible person to be
3-53 guardian of the person of the parent's minor children after the
3-54 death of the parent or in the event of the parent's incapacity.
3-55 (e) After the death of the surviving parent of a minor or if
3-56 the court finds the surviving parent is an incapacitated person, as
3-57 appropriate [Unless the court finds that the person designated in
3-58 the will or declaration to serve as guardian of the person of the
3-59 parent's minor children is disqualified, is dead, refuses to serve,
3-60 or would not serve the best interests of the minor children], the
3-61 court shall appoint the person designated in the will or
3-62 declaration to serve as guardian of the person of the parent's
3-63 minor children in preference to those otherwise entitled to serve
3-64 as guardian under this chapter unless the court finds that the
3-65 designated guardian is disqualified, is dead, refuses to serve, or
3-66 would not serve the best interests of the minor children.
3-67 (f) On compliance with this chapter [code], an eligible
3-68 person is also entitled to be appointed guardian of the children's
3-69 estates after the death of the parent or in the event of the
4-1 parent's incapacity.
4-2 (g) The powers of a person appointed to serve as the
4-3 designated guardian of the person or estate, or both, of a minor
4-4 child solely because of the incapacity of the minor's surviving
4-5 parent and in accordance with this section and Section 677A of this
4-6 code terminate when a probate court enters an order finding that
4-7 the surviving parent is no longer an incapacitated person.
4-8 SECTION 5. Section 677, Texas Probate Code, is amended by
4-9 amending Subsection (b) and adding Subsections (c)-(e) to read as
4-10 follows:
4-11 (b) The surviving parent of an adult individual who is an
4-12 incapacitated person[, because of a physical or mental condition,
4-13 is substantially unable to provide food, clothing, or shelter for
4-14 himself or herself, to care for the individual's own physical
4-15 health, or to manage the individual's own financial affairs,] may
4-16 by will or written declaration appoint an eligible person to be
4-17 guardian of the person of the adult individual after the parent's
4-18 death or in the event of the parent's incapacity if the parent is
4-19 the guardian of the person of the adult individual.
4-20 (c) After the death of the surviving parent of an adult
4-21 individual who is an incapacitated person or if the court finds the
4-22 surviving parent becomes an incapacitated person after being
4-23 appointed the individual's guardian, as appropriate [Unless the
4-24 court finds that the person designated in the will or declaration
4-25 to serve as guardian is disqualified, is dead, refuses to serve, or
4-26 would not serve the best interests of the adult individual], the
4-27 court shall appoint the person designated in the will or
4-28 declaration to serve as guardian in preference to those otherwise
4-29 entitled to serve as guardian under this chapter unless the court
4-30 finds that the designated guardian is disqualified, is dead,
4-31 refuses to serve, or would not serve the best interests of the
4-32 adult individual.
4-33 (d) On compliance with this chapter [code], the eligible
4-34 person appointed under Subsection (c) of this section [this
4-35 subsection] is also entitled to be appointed guardian of the adult
4-36 individual's estate after the death of the individual's parent or
4-37 in the event of the parent's incapacity if the individual's parent
4-38 is the guardian of the individual's estate.
4-39 (e) The powers of a person appointed to serve as the
4-40 designated guardian of the person or estate, or both, of an adult
4-41 individual solely because of the incapacity of the individual's
4-42 surviving parent and in accordance with this section and Section
4-43 677A of this code terminate when a probate court enters an order
4-44 finding that the surviving parent is no longer an incapacitated
4-45 person and reappointing the surviving parent as the individual's
4-46 guardian.
4-47 SECTION 6. Section 677A, Texas Probate Code, is amended to
4-48 read as follows:
4-49 Sec. 677A. WRITTEN DECLARATIONS BY CERTAIN PARENTS TO
4-50 APPOINT GUARDIANS FOR THEIR CHILDREN. (a) A written declaration
4-51 appointing an eligible person to be guardian of the person of the
4-52 parent's child under Section 676(d) or 677(b) of this code must be
4-53 signed by the declarant and be:
4-54 (1) written wholly in the handwriting of the
4-55 declarant; or
4-56 (2) attested to in the presence of the declarant by at
4-57 least two credible witnesses 14 years of age or older who are not
4-58 named as guardian or alternate guardian in the declaration.
4-59 (b) A declaration that is not written wholly in the
4-60 handwriting of the declarant may be signed by another person for
4-61 the declarant under the direction of and in the presence of the
4-62 declarant.
4-63 (c) A declaration described by Subsection (a)(2) of this
4-64 section may [The declaration must] have attached a self-proving
4-65 affidavit signed by the declarant and the witnesses attesting to
4-66 the competence of the declarant and the execution of the
4-67 declaration. [A properly executed and witnessed declaration and
4-68 affidavit are prima facie evidence that the declarant was competent
4-69 at the time the declarant executed the declaration and that the
5-1 guardian named in the declaration would serve the best interests of
5-2 the ward.]
5-3 (d) [(c)] The declaration and any self-proving affidavit may
5-4 be filed with the court at any time after the application for
5-5 appointment of a guardian is filed and before a guardian is
5-6 appointed.
5-7 (e) If the designated guardian does not qualify, is dead,
5-8 refuses to serve, resigns, or dies after being appointed guardian,
5-9 or is otherwise unavailable to serve as guardian, the court shall
5-10 appoint the next eligible designated alternate guardian named in
5-11 the declaration. If the guardian and all alternate guardians do
5-12 not qualify, are dead, refuse to serve, or later die or resign, the
5-13 court shall appoint another person to serve as otherwise provided
5-14 by this code.
5-15 (f) [(d)] The declarant may revoke a declaration in any
5-16 manner provided for the revocation of a will under Section 63 of
5-17 this code, including the subsequent reexecution of the declaration
5-18 in the manner required for the original declaration.
5-19 (g) [(e)] A declaration and affidavit may be in any form
5-20 adequate to clearly indicate the declarant's intention to designate
5-21 a guardian for the declarant's child. The following form may, but
5-22 need not, be used:
5-23 DECLARATION OF APPOINTMENT OF GUARDIAN FOR MY CHILDREN IN THE EVENT
5-24 OF MY DEATH OR INCAPACITY
5-25 I, __________, make this Declaration to appoint as guardian
5-26 for my child or children, listed as follows, in the event of my
5-27 death or incapacity:
5-28 ______________________________ ______________________________
5-29 ______________________________ ______________________________
5-30 ______________________________ ______________________________
5-31 (add blanks as appropriate)
5-32 I designate __________ to serve as guardian of the person of
5-33 my (child or children), __________ as first alternate guardian of
5-34 the person of my (child or children), __________ as second
5-35 alternate guardian of the person of my (child or children), and
5-36 __________ as third alternate guardian of the person of my (child
5-37 or children).
5-38 I direct that the guardian of the person of my (child or
5-39 children) serve (with or without) bond.
5-40 (If applicable) I designate __________ to serve as guardian
5-41 of the estate of my (child or children), __________ as first
5-42 alternate guardian of the estate of my (child or children),
5-43 __________ as second alternate guardian of the estate of my (child
5-44 or children), and __________ as third alternate guardian of the
5-45 estate of my (child or children).
5-46 If any guardian or alternate guardian dies, does not qualify,
5-47 or resigns, the next named alternate guardian becomes guardian of
5-48 my (child or children).
5-49 Signed this __________ day of __________, 20__[19___].
5-50 ______________________________
5-51 Declarant
5-52 ______________________________ ______________________________
5-53 Witness Witness
5-54 SELF-PROVING AFFIDAVIT
5-55 Before me, the undersigned authority, on this date personally
5-56 appeared the declarant, and __________ and __________ as witnesses,
5-57 and all being duly sworn, the declarant said that the above
5-58 instrument was his or her Declaration of Appointment of Guardian
5-59 for the Declarant's Children in the Event of Declarant's Death or
5-60 Incapacity and that the declarant had made and executed it for the
5-61 purposes expressed in the declaration. The witnesses declared to
5-62 me that they are each 14 years of age or older, that they saw the
5-63 declarant sign the declaration, that they signed the declaration as
5-64 witnesses, and that the declarant appeared to them to be of sound
5-65 mind.
5-66 ______________________________
5-67 Declarant
5-68 ______________________________ ______________________________
5-69 Affiant Affiant
6-1 Subscribed and sworn to before me by the above named
6-2 declarant and affiants on this ___ day of __________, 20__ [19___].
6-3 ______________________________
6-4 Notary Public in and for the
6-5 State of Texas
6-6 My Commission expires:
6-7 ______________________________
6-8 (h) In this section, "self-proving affidavit" means an
6-9 affidavit the form and content of which substantially complies with
6-10 the requirements of Subsection (g) of this section.
6-11 SECTION 7. Subpart A, Part 3, Chapter XIII, Texas Probate
6-12 Code, is amended by adding Section 677B to read as follows:
6-13 Sec. 677B. PROOF OF WRITTEN DECLARATION OF CERTAIN PARENTS
6-14 TO DESIGNATE CHILDRENS' GUARDIAN. (a) In this section:
6-15 (1) "Declaration" means a written declaration of a
6-16 person that:
6-17 (A) appoints a guardian for the person's child
6-18 under Section 676(d) or 677(b) of this code; and
6-19 (B) satisfies the requirements of Section 677A
6-20 of this code.
6-21 (2) "Self-proving affidavit" means an affidavit the
6-22 form and content of which substantially complies with the
6-23 requirements of Section 677A(g) of this code.
6-24 (3) "Self-proving declaration" includes a self-proving
6-25 affidavit that is attached or annexed to a declaration.
6-26 (b) If a declaration is self-proved, the court may admit the
6-27 declaration into evidence without the testimony of witnesses
6-28 attesting to the competency of the declarant and the execution of
6-29 the declaration. Additional proof of the execution of the
6-30 declaration with the formalities and solemnities and under the
6-31 circumstances required to make it a valid declaration is not
6-32 necessary.
6-33 (c) At any time during the declarant's lifetime, a written
6-34 declaration described by Section 677A(a)(1) of this code may be
6-35 made self-proved in the same form and manner a will written wholly
6-36 in the handwriting of a testator is made self-proved under Section
6-37 60 of this code.
6-38 (d) A properly executed and witnessed self-proving
6-39 declaration and affidavit, including a declaration and affidavit
6-40 described by Section 677A(c) of this code, are prima facie evidence
6-41 that the declarant was competent at the time the declarant executed
6-42 the declaration and that the guardian named in the declaration
6-43 would serve the best interests of the ward.
6-44 (e) A written declaration described by Section 677A(a)(1) of
6-45 this code that is not self-proved may be proved in the same manner
6-46 a will written wholly in the handwriting of the testator is proved
6-47 under Section 84 of this code.
6-48 (f) A written declaration described by Section 677A(a)(2) of
6-49 this code that is not self-proved may be proved in the same manner
6-50 an attested written will produced in court is proved under Section
6-51 84 of this code.
6-52 SECTION 8. Section 679, Texas Probate Code, is amended to
6-53 read as follows:
6-54 Sec. 679. DESIGNATION OF GUARDIAN BEFORE NEED ARISES.
6-55 (a) A person other than an incapacitated person may designate by a
6-56 written declaration persons to serve as guardian of the person of
6-57 the declarant or the estate of the declarant if the declarant
6-58 becomes incapacitated. The declaration must be signed by the
6-59 declarant and be:
6-60 (1) written wholly in the handwriting of the
6-61 declarant; or
6-62 (2) attested to in the presence of the declarant by at
6-63 least two credible witnesses 14 years of age or older who are not
6-64 named as guardian or alternate guardian in the declaration.
6-65 (b) A declarant may, in the declaration, disqualify named
6-66 persons from serving as guardian of the declarant's person or
6-67 estate, and the persons named may not be appointed guardian under
6-68 any circumstances.
6-69 (c) A declaration that is not written wholly in the
7-1 handwriting of a declarant may be signed by another person for the
7-2 declarant under the direction of and in the presence of the
7-3 declarant.
7-4 (d) A declaration described by Subsection (a)(2) of this
7-5 section may [The declaration must] have attached a self-proving
7-6 affidavit signed by the declarant and the witnesses attesting to
7-7 the competence of the declarant and the execution of the
7-8 declaration. [A properly executed and witnessed declaration and
7-9 affidavit are prima facie evidence that the declarant was competent
7-10 at the time the declarant executed the declaration and that the
7-11 guardian named in the declaration would serve the best interests of
7-12 the ward.]
7-13 (e) [(d)] The declaration and any self-proving affidavit may
7-14 be filed with the court at any time after the application for
7-15 appointment of a guardian is filed and before a guardian is
7-16 appointed.
7-17 (f) Unless the court finds that the person designated in the
7-18 declaration to serve as guardian is disqualified or would not serve
7-19 the best interests of the ward, the court shall appoint the person
7-20 as guardian in preference to those otherwise entitled to serve as
7-21 guardian under this code. If the designated guardian does not
7-22 qualify, is dead, refuses to serve, resigns, or dies after being
7-23 appointed guardian, or is otherwise unavailable to serve as
7-24 guardian, the court shall appoint the next eligible designated
7-25 alternate guardian named in the declaration. If the guardian and
7-26 all alternate guardians do not qualify, are dead, refuse to serve,
7-27 or later die or resign, the court shall appoint another person to
7-28 serve as otherwise provided by this code.
7-29 (g) [(e)] The declarant may revoke a declaration in any
7-30 manner provided for the revocation of a will under Section 63 of
7-31 this code, including the subsequent reexecution of the declaration
7-32 in the manner required for the original declaration.
7-33 (h) [(f)] If a declarant designates the declarant's spouse
7-34 to serve as guardian under this section, and the declarant is
7-35 subsequently divorced from that spouse before a guardian is
7-36 appointed, the provision of the declaration designating the spouse
7-37 has no effect.
7-38 (i) [(g)] A declaration and affidavit may be in any form
7-39 adequate to clearly indicate the declarant's intention to designate
7-40 a guardian. The following form [forms] may, but need not, be used:
7-41 DECLARATION OF GUARDIAN IN THE EVENT OF LATER
7-42 INCAPACITY OR NEED OF GUARDIAN
7-43 I, __________, make this Declaration of Guardian, to operate
7-44 if the need for a guardian for me later arises.
7-45 1. I designate __________ to serve as guardian of my person,
7-46 __________ as first alternate guardian of my person, __________ as
7-47 second alternate guardian of my person, and __________ as third
7-48 alternate guardian of my person.
7-49 2. I designate __________ to serve as guardian of my estate,
7-50 __________ as first alternate guardian of my estate, __________ as
7-51 second alternate guardian of my estate, and __________ as third
7-52 alternate guardian of my estate.
7-53 3. If any guardian or alternate guardian dies, does not
7-54 qualify, or resigns, the next named alternate guardian becomes my
7-55 guardian.
7-56 4. I expressly disqualify the following persons from serving
7-57 as guardian of my person: __________, __________, and __________.
7-58 5. I expressly disqualify the following persons from serving
7-59 as guardian of my estate: __________, __________, and __________.
7-60 Signed this ___ day of __________, 20__ [19___].
7-61 ______________________________
7-62 Declarant
7-63 ______________________________ ______________________________
7-64 Witness Witness
7-65 SELF-PROVING AFFIDAVIT
7-66 Before me, the undersigned authority, on this date personally
7-67 appeared the declarant, and ____________ and ____________ as
7-68 witnesses, and all being duly sworn, the declarant said that the
7-69 above instrument was his or her Declaration of Guardian and that
8-1 the declarant had made and executed it for the purposes expressed
8-2 in the declaration. The witnesses declared to me that they are
8-3 each 14 years of age or older, that they saw the declarant sign the
8-4 declaration, that they signed the declaration as witnesses, and
8-5 that the declarant appeared to them to be of sound mind.
8-6 ______________________________
8-7 Declarant
8-8 ______________________________ ______________________________
8-9 Affiant Affiant
8-10 Subscribed and sworn to before me by the above named
8-11 declarant and affiants on this ____ day of __________, 20__ [19__].
8-12 _________________________
8-13 Notary Public in and for
8-14 the State of Texas
8-15 My Commission expires:
8-16 _________________________
8-17 (j) In this section, "self-proving affidavit" means an
8-18 affidavit the form and content of which substantially complies with
8-19 the requirements of Subsection (i) of this section.
8-20 SECTION 9. Subpart A, Part 3, Chapter XIII, Texas Probate
8-21 Code, is amended by adding Section 679A to read as follows:
8-22 Sec. 679A. PROOF OF WRITTEN DECLARATION TO DESIGNATE
8-23 GUARDIAN BEFORE NEED ARISES. (a) In this section:
8-24 (1) "Declaration" means a written declaration of a
8-25 person that:
8-26 (A) designates another person to serve as a
8-27 guardian of the person or estate of the declarant; and
8-28 (B) satisfies the requirements of Section 679 of
8-29 this code.
8-30 (2) "Self-proving affidavit" means an affidavit the
8-31 form and content of which substantially complies with the
8-32 requirements of Section 679(i) of this code.
8-33 (3) "Self-proving declaration" includes a self-proving
8-34 affidavit that is attached or annexed to a declaration.
8-35 (b) If a declaration is self-proved, the court may admit the
8-36 declaration into evidence without the testimony of witnesses
8-37 attesting to the competency of the declarant and the execution of
8-38 the declaration. Additional proof of the execution of the
8-39 declaration with the formalities and solemnities and under the
8-40 circumstances required to make it a valid declaration is not
8-41 necessary.
8-42 (c) At any time during the declarant's lifetime, a written
8-43 declaration described by Section 679(a)(1) of this code may be made
8-44 self-proved in the same form and manner a will written wholly in
8-45 the handwriting of a testator is made self-proved under Section 60
8-46 of this code.
8-47 (d) A properly executed and witnessed self-proving
8-48 declaration and affidavit, including a declaration and affidavit
8-49 described by Section 679(d) of this code, are prima facie evidence
8-50 that the declarant was competent at the time the declarant executed
8-51 the declaration and that the guardian named in the declaration
8-52 would serve the best interests of the ward.
8-53 (e) A written declaration described by Section 679(a)(1) of
8-54 this code that is not self-proved may be proved in the same manner
8-55 a will written wholly in the handwriting of the testator is proved
8-56 under Section 84 of this code.
8-57 (f) A written declaration described by Section 679(a)(2) of
8-58 this code that is not self-proved may be proved in the same manner
8-59 an attested written will produced in court is proved under Section
8-60 84 of this code.
8-61 SECTION 10. Section 682A(a), Texas Probate Code, is amended
8-62 to read as follows:
8-63 (a) If a minor is a person who, because of incapacity, will
8-64 require a guardianship after the ward is no longer a minor, a
8-65 person may file an application under Section 682 of this code for
8-66 the appointment of a guardian of the person or [and/or] the estate,
8-67 or both, of the proposed ward not earlier than the 180th [60th] day
8-68 before the proposed ward's 18th birthday. If the application is
8-69 heard before the proposed ward's 18th birthday, a guardianship
9-1 created under this section may not take effect and the person
9-2 appointed guardian may not give a bond or take the oath as required
9-3 under Section 700 or 702 of this code until the proposed ward's
9-4 18th birthday.
9-5 SECTION 11. Section 701, Texas Probate Code, is amended to
9-6 read as follows:
9-7 Sec. 701. TIME FOR TAKING OATH AND GIVING BOND. Except as
9-8 provided by Section 682A(a) of this code, the [The] oath of a
9-9 guardian may be taken and subscribed, or the bond of a guardian may
9-10 be given and approved, at any time before the expiration of the
9-11 20th day after the date of the order granting letters of
9-12 guardianship, or before the letters have been revoked for a failure
9-13 to qualify within the time allowed. An oath may be taken before
9-14 any person authorized to administer oaths under the laws of this
9-15 state.
9-16 SECTION 12. Section 702(b), Texas Probate Code, is amended
9-17 to read as follows:
9-18 (b) A bond is not required to be given by a guardian that
9-19 is:
9-20 (1) a corporate fiduciary, as defined by Section 601
9-21 [601(5)] of this code; or
9-22 (2) a guardianship program operated by a county.
9-23 SECTION 13. Section 745(c), Texas Probate Code, is amended
9-24 to read as follows:
9-25 (c) When the estate of a minor ward consists only of cash or
9-26 cash equivalents in an amount of $50,000 [$25,000] or less, the
9-27 guardianship of the estate may be terminated and the assets paid to
9-28 the county clerk of the county in which the guardianship proceeding
9-29 is pending, and the clerk shall manage the funds as provided by
9-30 Section 887 of this code.
9-31 SECTION 14. Subpart D, Part 4, Chapter XIII, Texas Probate
9-32 Code, is amended by adding Sections 760A and 760B to read as
9-33 follows:
9-34 Sec. 760A. CHANGE OF RESIDENT AGENT. (a) A guardian may
9-35 change its resident agent to accept service of process in a
9-36 guardianship proceeding or other matter relating to the
9-37 guardianship by filing a statement of the change entitled
9-38 "Designation of Successor Resident Agent" with the court in which
9-39 the guardianship proceeding is pending. The statement must contain
9-40 the names and addresses of the:
9-41 (1) guardian;
9-42 (2) resident agent; and
9-43 (3) successor resident agent.
9-44 (b) The designation of a successor resident agent made in a
9-45 statement filed under this section takes effect on the date on
9-46 which the statement is filed with the court.
9-47 Sec. 760B. RESIGNATION OF RESIDENT AGENT. (a) A resident
9-48 agent of a guardian may resign as the resident agent by giving
9-49 notice to the guardian and filing with the court in which the
9-50 guardianship proceeding is pending a statement entitled
9-51 "Resignation of Resident Agent" that:
9-52 (1) contains the name of the guardian;
9-53 (2) contains the address of the guardian most recently
9-54 known by the resident agent;
9-55 (3) states that notice of the resignation has been
9-56 given to the guardian and that the guardian does not have a
9-57 resident agent; and
9-58 (4) contains the date on which the notice of the
9-59 resignation was given to the guardian.
9-60 (b) The resident agent shall send, by certified mail, return
9-61 receipt requested, a copy of a resignation statement filed under
9-62 Subsection (a) of this section to:
9-63 (1) the guardian at the address most recently known by
9-64 the agent; and
9-65 (2) each party in the case or the party's attorney or
9-66 other designated representative of record.
9-67 (c) The resignation of a resident agent takes effect on the
9-68 date on which the court enters an order accepting the agent's
9-69 resignation. A court may not enter an order accepting the agent's
10-1 resignation unless the agent complies with the requirements of this
10-2 section.
10-3 SECTION 15. Section 761, Texas Probate Code, is amended to
10-4 read as follows:
10-5 Sec. 761. REMOVAL. (a) The court, on its own motion or on
10-6 motion of any interested person, including the ward, and without
10-7 notice, may remove any guardian, appointed under this chapter, who:
10-8 (1) neglects to qualify in the manner and time
10-9 required by law;
10-10 (2) fails to return within 90 days after
10-11 qualification, unless the time is extended by order of the court,
10-12 an inventory of the property of the guardianship estate and list of
10-13 claims that have come to the guardian's knowledge;
10-14 (3) having been required to give a new bond, fails to
10-15 do so within the time prescribed;
10-16 (4) absents himself from the state for a period of
10-17 three months at one time without permission of the court, or
10-18 removes from the state;
10-19 (5) cannot be served with notices or other processes
10-20 because of the fact that:
10-21 (A) the guardian's whereabouts are unknown;
10-22 (B) [, or because] the guardian is eluding
10-23 service; or
10-24 (C) the guardian is a nonresident of this state
10-25 who does not have a resident agent to accept service of process in
10-26 any guardianship proceeding or other matter relating to the
10-27 guardianship;
10-28 (6) has misapplied, embezzled, or removed from the
10-29 state, or is about to misapply, embezzle, or remove from the state,
10-30 all or any part of the property committed to the guardian's care;
10-31 or
10-32 (7) has cruelly treated a ward, or has neglected to
10-33 educate or maintain the ward as liberally as the means of the ward
10-34 and the condition of the ward's estate permit.
10-35 (b) The court may remove a personal representative under
10-36 Subsection (a)(6) or (7) of this section only on the presentation
10-37 of clear and convincing evidence given under oath.
10-38 (c) The court may remove a guardian on its own motion, or on
10-39 the complaint of an interested person, after the guardian has been
10-40 cited by personal service to answer at a time and place set in the
10-41 notice, when:
10-42 (1) sufficient grounds appear to support belief that
10-43 the guardian has misapplied, embezzled, or removed from the state,
10-44 or that the guardian is about to misapply, embezzle, or remove from
10-45 the state, all or any part of the property committed to the care of
10-46 the guardian;
10-47 (2) the guardian fails to return any account or report
10-48 that is required by law to be made;
10-49 (3) the guardian fails to obey any proper order of the
10-50 court having jurisdiction with respect to the performance of the
10-51 guardian's duties;
10-52 (4) the guardian is proved to have been guilty of
10-53 gross misconduct or mismanagement in the performance of the duties
10-54 of the guardian;
10-55 (5) the guardian becomes incapacitated, or is
10-56 sentenced to the penitentiary, or from any other cause becomes
10-57 incapable of properly performing the duties of the guardian's
10-58 trust;
10-59 (6) as guardian of the person, the guardian cruelly
10-60 treats the ward, or neglects to educate or maintain the ward as
10-61 liberally as the means of the ward's estate and the ward's ability
10-62 or condition permit;
10-63 (7) the guardian interferes with the ward's progress
10-64 or participation in programs in the community; [or]
10-65 (8) the guardian fails to comply with the requirements
10-66 of Section 697 of this code; or
10-67 (9) the court determines that, because of the
10-68 dissolution of the joint guardians' marriage, the termination of
10-69 the guardians' joint appointment and the continuation of only one
11-1 of the joint guardians as the sole guardian is in the best interest
11-2 of the ward.
11-3 (d) The order of removal shall state the cause of the
11-4 removal. It must require that any letters issued to the person who
11-5 is removed shall, if the removed person has been personally served
11-6 with citation, be surrendered and that all those letters be
11-7 cancelled of record, whether or not delivered. It must further
11-8 require, as to all the estate remaining in the hands of a removed
11-9 person, delivery of the estate to the person or persons entitled to
11-10 the estate, or to one who has been appointed and has qualified as
11-11 successor guardian, and as to the person of a ward, that control be
11-12 relinquished as required in the order.
11-13 (e) If a joint guardian is removed under Subsection (c)(9)
11-14 of this section, the other joint guardian is entitled to continue
11-15 to serve as the sole guardian unless removed for a reason other
11-16 than the dissolution of the joint guardians' marriage.
11-17 (f) If the necessity exists, the court may immediately
11-18 appoint a successor but may not discharge the person removed as
11-19 guardian of the estate or release the person or the sureties on the
11-20 person's bond until final order or judgment is rendered on the
11-21 final account of the guardian.
11-22 (g) [(f)] The court at any time may order a person removed
11-23 as guardian under this section who has all or part of the estate of
11-24 a ward to deliver all or part of the ward's estate to a person who
11-25 has been appointed and has qualified as successor guardian.
11-26 SECTION 16. Subpart M, Part 4, Chapter XIII, Texas Probate
11-27 Code, is amended by adding Section 865A to read as follows:
11-28 Sec. 865A. INSPECTION OF CERTAIN INSTRUMENT FOR ESTATE
11-29 PLANNING PURPOSES. (a) On the filing of an application under
11-30 Section 865 of this code, the guardian of the ward's estate may
11-31 apply to the court for an order to seek an in camera inspection of
11-32 a true copy of a will, codicil, trust, or other estate planning
11-33 instrument of the ward as a means of obtaining access to the
11-34 instrument for purposes of establishing an estate plan under
11-35 Section 865 of this code.
11-36 (b) An application filed under this section must:
11-37 (1) be sworn to by the guardian;
11-38 (2) list all of the instruments requested for
11-39 inspection; and
11-40 (3) state one or more reasons supporting the necessity
11-41 to inspect each requested instrument for the purpose described by
11-42 Subsection (a) of this section.
11-43 (c) A person who files an application under this section
11-44 shall send a copy of the application to:
11-45 (1) each person who has custody of an instrument
11-46 listed in the application;
11-47 (2) the ward's spouse;
11-48 (3) the ward's dependents;
11-49 (4) all devisees under a will, trust, or other
11-50 beneficial instrument relating to the ward's estate; and
11-51 (5) any other person as directed by the court.
11-52 (d) Notice required by Subsection (c) of this section must
11-53 be delivered by certified mail to a person described by Subsection
11-54 (c)(2), (3), (4), or (5) of this section and by registered or
11-55 certified mail to a person described by Subsection (c)(1) of this
11-56 section. After the 10th day after the date on which the applicant
11-57 complies with the notice requirement, the applicant may request
11-58 that a hearing be held on the application. Notice of the date,
11-59 time, and place of the hearing must be given by the applicant to
11-60 each person described by Subsection (c)(1) of this section when the
11-61 court sets a date for a hearing on the application.
11-62 (e) After the conclusion of a hearing on the application and
11-63 on a finding that there is good cause for an in camera inspection
11-64 of a requested instrument, the court shall direct the person that
11-65 has custody of the requested will, codicil, trust, or other estate
11-66 planning instrument to deliver a true copy of the instrument to the
11-67 court for in camera inspection only. After conducting an in camera
11-68 review of the instrument, the court, if good cause exists, shall
11-69 release all or part of the instrument to the applicant only for the
12-1 purpose described by Subsection (a) of this section.
12-2 (f) The court may appoint a guardian ad litem for the ward
12-3 or an interested party at any stage of the proceedings if it is
12-4 considered advisable for the protection of the ward or the
12-5 interested party.
12-6 (g) An attorney does not violate the attorney-client
12-7 privilege solely by complying with a court order to release an
12-8 instrument subject to this section. Notwithstanding Section
12-9 22.004, Government Code, the supreme court may not amend or adopt
12-10 rules in conflict with this subsection.
12-11 SECTION 17. Section 875(c), Texas Probate Code, is amended
12-12 to read as follows:
12-13 (c) A sworn, written application for the appointment of a
12-14 temporary guardian may be filed before the court appoints a
12-15 temporary guardian. The application must be filed not later than
12-16 the end of the next business day of the court after the date of
12-17 appointment of the temporary guardian. The application must state:
12-18 (1) the name and address of the person who is the
12-19 subject of the guardianship proceeding;
12-20 (2) the danger to the person or property alleged to be
12-21 imminent;
12-22 (3) the type of appointment and the particular
12-23 protection and assistance being requested;
12-24 (4) the facts and reasons supporting the allegations
12-25 and requests;
12-26 (5) the name, address, and qualification of the
12-27 proposed temporary guardian;
12-28 (6) the name, address, and interest of the applicant;
12-29 and
12-30 (7) [the social security numbers of the applicant and
12-31 proposed ward; and]
12-32 [(8)] if applicable, that the proposed temporary
12-33 guardian is a private professional guardian who has complied with
12-34 the requirements of Section 697 of this code.
12-35 SECTION 18. Section 883, Texas Probate Code, is amended to
12-36 read as follows:
12-37 Sec. 883. INCAPACITATED SPOUSE. (a) Except as provided by
12-38 Subsection (c) of this section, when [When] a husband or wife is
12-39 judicially declared to be incapacitated:
12-40 (1) [,] the other spouse, in the capacity of surviving
12-41 partner of the marital partnership, acquires full power to manage,
12-42 control, and dispose of the entire community estate as community
12-43 administrator, including the part of the community estate that the
12-44 incapacitated spouse legally has the power to manage in the absence
12-45 of the incapacity, without an administration; and
12-46 (2) if the incapacitated spouse owns separate
12-47 property, the court shall appoint the other spouse or another
12-48 person or entity, in the order of precedence established under
12-49 Section 677 of this code, as guardian of the estate to administer
12-50 only the separate property of the incapacitated spouse.
12-51 (b) The spouse who is not incapacitated is presumed to be
12-52 suitable and qualified to serve as community administrator. [If
12-53 the court finds that it is in the best interest of the
12-54 incapacitated spouse and that the other spouse would not be
12-55 disqualified to serve as guardian under Section 681 of this code,
12-56 guardianship of the estate of the incapacitated spouse may not be
12-57 necessary when the other spouse is not incapacitated unless the
12-58 incapacitated spouse owns separate property, and the guardianship
12-59 will be of the separate property only.] The qualification of a
12-60 guardian of the estate of the separate property of an incapacitated
12-61 spouse as required under Subsection (a) of this section does not
12-62 deprive the competent spouse of the right to manage, control, and
12-63 dispose of the entire community estate as provided in this chapter.
12-64 (c) If a spouse who is not incapacitated is removed as
12-65 community administrator or if the court finds that the spouse who
12-66 is not incapacitated would be disqualified to serve as guardian
12-67 under Section 681 of this code or is not suitable to serve as
12-68 community administrator for any other reason, the court:
12-69 (1) shall appoint a guardian of the estate for the
13-1 incapacitated spouse if the court:
13-2 (A) has not appointed a guardian of the estate
13-3 under Subsection (a)(2) of this section; or
13-4 (B) has appointed the spouse who is not
13-5 incapacitated as guardian of the estate under Subsection (a)(2) of
13-6 this section;
13-7 (2) after taking into consideration the financial
13-8 circumstances of the spouses and any other relevant factors, may
13-9 order the spouse who is not incapacitated to deliver to the
13-10 guardian of the estate of the incapacitated spouse a portion, not
13-11 to exceed one-half, of the community property that is subject to
13-12 the spouses' joint management, control, and disposition under
13-13 Section 3.102, Family Code; and
13-14 (3) shall authorize the guardian of the estate of the
13-15 incapacitated spouse to administer:
13-16 (A) any separate property of the incapacitated
13-17 spouse;
13-18 (B) any community property that is subject to
13-19 the incapacitated spouse's sole management, control, and
13-20 disposition under Section 3.102, Family Code;
13-21 (C) any community property delivered to the
13-22 guardian of the estate under Subdivision (2) of this subsection;
13-23 and
13-24 (D) any income earned on property described in
13-25 this subsection.
13-26 (d) On a person's removal as community administrator or on
13-27 qualification of a guardian of the estate of the person's
13-28 incapacitated spouse under Subsection (c) of this section, as
13-29 appropriate, a spouse who is not incapacitated shall continue to
13-30 administer:
13-31 (1) the person's own separate property;
13-32 (2) any community property that is subject to the
13-33 person's sole management, control, and disposition under Section
13-34 3.102, Family Code;
13-35 (3) any community property subject to the spouses'
13-36 joint management, control, and disposition under Section 3.102,
13-37 Family Code, unless the person is required to deliver a portion of
13-38 that community property to the guardian of the estate of the
13-39 person's incapacitated spouse under Subsection (c)(2) of this
13-40 section, in which event, the person shall continue to administer
13-41 only the portion of the community property remaining after
13-42 delivery; and
13-43 (4) any income earned on property described in this
13-44 subsection the person is authorized to administer.
13-45 (e) The duties and obligations between spouses, including
13-46 the duty to support the other spouse, and the rights of any
13-47 creditor of either spouse are not affected by the manner in which
13-48 community property is administered under this section.
13-49 SECTION 19. Section 883A, Texas Probate Code, is amended to
13-50 read as follows:
13-51 Sec. 883A. RECOVERY OF CAPACITY. The special powers of
13-52 management, control, and disposition vested in the community
13-53 administrator [same spouse] by this chapter [code] shall terminate
13-54 when the decree of a court of competent jurisdiction finds that the
13-55 mental capacity of the incapacitated [other] spouse has been
13-56 recovered.
13-57 SECTION 20. Subpart C, Part 5, Chapter XIII, Texas Probate
13-58 Code, is amended by adding Sections 883B, 883C, and 883D to read as
13-59 follows:
13-60 Sec. 883B. ACCOUNTING, INVENTORY, AND APPRAISEMENT BY
13-61 COMMUNITY ADMINISTRATOR. (a) On its own motion or on the motion
13-62 of an interested person for good cause shown, the court may order a
13-63 community administrator to file a verified, full, and detailed
13-64 inventory and appraisement of:
13-65 (1) any community property that is subject to the
13-66 incapacitated spouse's sole management, control, and disposition
13-67 under Section 3.102, Family Code;
13-68 (2) any community property subject to the spouses'
13-69 joint management, control, and disposition under Section 3.102,
14-1 Family Code; and
14-2 (3) any income earned on property described in this
14-3 subsection.
14-4 (b) At any time after the expiration of 15 months after the
14-5 date that a community administrator's spouse is judicially declared
14-6 to be incapacitated, the court, on its own motion or on the motion
14-7 of an interested person for good cause shown, may order the
14-8 community administrator to prepare and file an accounting of:
14-9 (1) any community property that is subject to the
14-10 incapacitated spouse's sole management, control, and disposition
14-11 under Section 3.102, Family Code;
14-12 (2) any community property subject to the spouses'
14-13 joint management, control, and disposition under Section 3.102,
14-14 Family Code; and
14-15 (3) any income earned on property described in this
14-16 subsection.
14-17 (c) An inventory and appraisement ordered under Subsection
14-18 (a) of this section must:
14-19 (1) be prepared in the same form and manner that is
14-20 required of a guardian under Section 729 of this code; and
14-21 (2) be filed not later than the 90th day after the
14-22 date on which the order is issued.
14-23 (d) An accounting ordered under Subsection (b) of this
14-24 section must:
14-25 (1) be prepared in the same form and manner that is
14-26 required of a guardian under Section 741 of this code, except that
14-27 the requirement that an accounting be filed annually with the
14-28 county clerk does not apply; and
14-29 (2) be filed not later than the 60th day after the
14-30 date on which the order is issued.
14-31 (e) After an initial accounting has been filed by a
14-32 community administrator under this section, the court, on the
14-33 motion of an interested person for good cause shown, may order the
14-34 community administrator to file subsequent periodic accountings at
14-35 intervals of not less than 12 months.
14-36 Sec. 883C. REMOVAL OF COMMUNITY ADMINISTRATOR. (a) A
14-37 court, on its own motion or on the motion of an interested person
14-38 and after the community administrator has been cited by personal
14-39 service to answer at a time and place specified in the notice, may
14-40 remove a community administrator if:
14-41 (1) the community administrator fails to comply with a
14-42 court order for an inventory and appraisement, accounting, or
14-43 subsequent accounting under Section 883B of this code;
14-44 (2) sufficient grounds appear to support belief that
14-45 the community administrator has misapplied or embezzled, or that
14-46 the community administrator is about to misapply or embezzle, all
14-47 or any part of the property committed to the care of the community
14-48 administrator;
14-49 (3) the community administrator is proved to have been
14-50 guilty of gross misconduct or gross mismanagement in the
14-51 performance of duties as community administrator; or
14-52 (4) the community administrator becomes an
14-53 incapacitated person, is sentenced to the penitentiary, or for any
14-54 other reason becomes legally incapacitated from properly performing
14-55 the community administrator's fiduciary duties.
14-56 (b) The order of removal must state the cause of removal and
14-57 shall direct by order the disposition of the assets remaining in
14-58 the name or under the control of the removed community
14-59 administrator.
14-60 (c) A community administrator who defends an action for the
14-61 removal of the community administrator in good faith, regardless of
14-62 whether successful, is entitled to recover from the incapacitated
14-63 spouse's part of the community estate the community administrator's
14-64 necessary expenses and disbursements in the removal proceedings,
14-65 including reasonable attorney's fees.
14-66 Sec. 883D. APPOINTMENT OF ATTORNEY AD LITEM FOR
14-67 INCAPACITATED SPOUSE. (a) The court shall appoint an attorney ad
14-68 litem to represent the interests of an incapacitated spouse in a
14-69 proceeding to remove a community administrator or other proceeding
15-1 brought under this subpart.
15-2 (b) The attorney ad litem may demand from the community
15-3 administrator an accounting or inventory and appraisement of the
15-4 incapacitated spouse's part of the community estate being managed
15-5 by the community administrator.
15-6 (c) A community administrator shall comply with a demand
15-7 made under this section not later than the 60th day after the date
15-8 on which the community administrator receives the demand.
15-9 (d) An accounting or inventory and appraisement returned
15-10 under this section must be prepared in the form and manner required
15-11 by the attorney ad litem, and the attorney ad litem may require the
15-12 community administrator to file the accounting and inventory and
15-13 appraisement with the court.
15-14 SECTION 21. Section 884, Texas Probate Code, is amended to
15-15 read as follows:
15-16 Sec. 884. DELIVERY TO SPOUSE. A guardian of the estate of
15-17 an incapacitated married person who, as guardian, is administering
15-18 community property as part of the estate of the ward, shall deliver
15-19 on demand the community property to the spouse who is not
15-20 incapacitated if the spouse becomes community administrator under
15-21 Section 883 of this code.
15-22 SECTION 22. Subpart C, Part 5, Chapter XIII, Texas Probate
15-23 Code, is amended by adding Section 884A to read as follows:
15-24 Sec. 884A. LAWSUIT INFORMATION. A person whose spouse is
15-25 judicially declared to be incapacitated and who acquires the power
15-26 to manage, control, and dispose of the entire community estate
15-27 under Section 883 of this code shall inform the court in writing of
15-28 any suit filed by or on behalf of the person that:
15-29 (1) is a suit for dissolution of the marriage of the
15-30 person and the person's incapacitated spouse; or
15-31 (2) names the incapacitated spouse as a defendant.
15-32 SECTION 23. Section 3.301, Family Code, is amended to read
15-33 as follows:
15-34 Sec. 3.301. [INCAPACITATED,] MISSING, ABANDONED, OR
15-35 SEPARATED SPOUSE. (a) A spouse may file a sworn petition stating
15-36 the facts that make it desirable for the petitioning spouse to
15-37 manage, control, and dispose of community property described or
15-38 defined in the petition that would otherwise be subject to the sole
15-39 or joint management, control, and disposition of the other spouse
15-40 if:
15-41 (1) [because of physical or mental incapacity, the
15-42 other spouse is unable to manage, control, or dispose of the
15-43 community property subject to that spouse's sole or joint
15-44 management, control, and disposition;]
15-45 [(2)] the other spouse has disappeared and that
15-46 spouse's location remains unknown to the petitioning spouse, unless
15-47 the spouse is reported to be a prisoner of war or missing on public
15-48 service;
15-49 (2) [(3)] the other spouse has permanently abandoned
15-50 the petitioning spouse; or
15-51 (3) [(4)] the spouses are permanently separated.
15-52 (b) The petition may be filed in a court in the county in
15-53 which the petitioner resided at the time the [incapacity or]
15-54 separation began, or the abandonment or disappearance occurred, not
15-55 earlier than the 60th day after the date of the occurrence of the
15-56 event. If both spouses are nonresidents of this state at the time
15-57 the petition is filed, the petition may be filed in a court in a
15-58 county in which any part of the described or defined community
15-59 property is located.
15-60 SECTION 24. Section 3.307(b), Family Code, is amended to
15-61 read as follows:
15-62 (b) On the motion of either spouse, the court shall amend or
15-63 vacate the original order after notice and hearing if:
15-64 (1) [the incapacitated spouse's capacity is restored;]
15-65 [(2)] the spouse who disappeared reappears;
15-66 (2) [(3)] the abandonment or permanent separation
15-67 ends; or
15-68 (3) [(4)] the spouse who was reported to be a prisoner
15-69 of war or missing on public service returns.
16-1 SECTION 25. Section 5.002, Family Code, is amended to read
16-2 as follows:
16-3 Sec. 5.002. SALE OF SEPARATE HOMESTEAD AFTER [FOR
16-4 INCAPACITATED] SPOUSE JUDICIALLY DECLARED INCAPACITATED. If the
16-5 homestead is the separate property of a spouse and the other spouse
16-6 has been judicially declared incapacitated by a court exercising
16-7 original jurisdiction over guardianship and other matters under
16-8 Chapter XIII, Texas Probate Code, the owner may sell, convey, or
16-9 encumber the homestead without the joinder of the other spouse.
16-10 SECTION 26. Section 5.101, Family Code, is amended to read
16-11 as follows:
16-12 Sec. 5.101. SALE OF SEPARATE HOMESTEAD UNDER UNUSUAL
16-13 CIRCUMSTANCES. If the homestead is the separate property of a
16-14 spouse, that spouse may file a sworn petition that gives a
16-15 description of the property, states the facts that make it
16-16 desirable for the spouse to sell, convey, or encumber the homestead
16-17 without the joinder of the other spouse, and alleges that the other
16-18 spouse:
16-19 (1) [is incapacitated, whether judicially declared
16-20 incapacitated or not;]
16-21 [(2)] has disappeared and that the location of the
16-22 spouse remains unknown to the petitioning spouse;
16-23 (2) [(3)] has permanently abandoned the homestead and
16-24 the petitioning spouse;
16-25 (3) [(4)] has permanently abandoned the homestead and
16-26 the spouses are permanently separated; or
16-27 (4) [(5)] has been reported by an executive department
16-28 of the United States to be a prisoner of war or missing on public
16-29 service of the United States.
16-30 SECTION 27. Section 5.102, Family Code, is amended to read
16-31 as follows:
16-32 Sec. 5.102. SALE OF COMMUNITY HOMESTEAD UNDER UNUSUAL
16-33 CIRCUMSTANCES. If the homestead is the community property of the
16-34 spouses, one spouse may file a sworn petition that gives a
16-35 description of the property, states the facts that make it
16-36 desirable for the petitioning spouse to sell, convey, or encumber
16-37 the homestead without the joinder of the other spouse, and alleges
16-38 that the other spouse:
16-39 (1) [is incapacitated, whether judicially declared
16-40 incapacitated or not;]
16-41 [(2)] has disappeared and that the location of the
16-42 spouse remains unknown to the petitioning spouse;
16-43 (2) [(3)] has permanently abandoned the homestead and
16-44 the petitioning spouse;
16-45 (3) [(4)] has permanently abandoned the homestead and
16-46 the spouses are permanently separated; or
16-47 (4) [(5)] has been reported by an executive department
16-48 of the United States to be a prisoner of war or missing on public
16-49 service of the United States.
16-50 SECTION 28. Section 5.103, Family Code, is amended to read
16-51 as follows:
16-52 Sec. 5.103. TIME FOR FILING PETITION. The petitioning
16-53 spouse may file the petition in a court of the county in which any
16-54 portion of the property is located not earlier than the 60th day
16-55 after the date of the occurrence of an event described by Sections
16-56 5.101(1)-(3) [5.101(1)-(4)] and 5.102(1)-(3) [5.102(1)-(4)] or not
16-57 less than six months after the date the other spouse had been
16-58 reported to be a prisoner of war or missing on public service.
16-59 SECTION 29. Section 5.107, Family Code, is redesignated as
16-60 Section 5.003, Family Code, and amended to read as follows:
16-61 Sec. 5.003 [5.107]. SALE OF COMMUNITY HOMESTEAD AFTER [FOR]
16-62 SPOUSE JUDICIALLY DECLARED INCAPACITATED. If the homestead is the
16-63 community property of the spouses and one spouse has been
16-64 judicially declared incapacitated by a court exercising original
16-65 jurisdiction over guardianship and other matters under Chapter
16-66 XIII, Texas Probate Code, the competent spouse may sell, convey, or
16-67 encumber the homestead without the joinder of the other spouse.
16-68 SECTION 30. The change in law made by this Act to Sections
16-69 3.301, 3.307(b), 5.101, 5.102, and 5.103, Family Code, applies only
17-1 to a proceeding in which an original petition is filed on or after
17-2 the effective date of this Act. A proceeding in which the original
17-3 petition was filed before the effective date of this Act is
17-4 governed by the law in effect on the date the petition was filed,
17-5 and the former law is continued in effect for that purpose.
17-6 SECTION 31. The changes in law made by this Act to Section
17-7 485, Texas Probate Code, apply only to a durable power of attorney
17-8 or statutory durable power of attorney executed by a principal for
17-9 whom an application for the appointment of a permanent guardian or
17-10 temporary guardian is filed on or after the effective date of this
17-11 Act. A durable power of attorney or statutory durable power of
17-12 attorney executed by a principal for whom an application for the
17-13 appointment of a permanent guardian or temporary guardian is filed
17-14 before the effective date of this Act is governed by the law in
17-15 effect on the date the application for the appointment of a
17-16 permanent or temporary guardian was filed, and the former law is
17-17 continued in effect for that purpose.
17-18 SECTION 32. The changes in law made by this Act to Sections
17-19 676 and 677, Texas Probate Code, apply only to a will or written
17-20 declaration for the appointment of a guardian that is executed on
17-21 or after the effective date of this Act. A will or written
17-22 declaration for the appointment of a guardian that is executed
17-23 before the effective date of this Act is governed by the law in
17-24 effect on the date the will or declaration was executed, and the
17-25 former law is continued in effect for that purpose.
17-26 SECTION 33. The changes in law made by this Act to Sections
17-27 677A and 679, Texas Probate Code, and Sections 677B and 679A, Texas
17-28 Probate Code, as added by this Act, apply only to a written
17-29 declaration for the appointment of a guardian that is executed on
17-30 or after the effective date of this Act. A written declaration for
17-31 the appointment of a guardian that is executed before the effective
17-32 date of this Act is governed by the law in effect on the date the
17-33 declaration was executed, and the former law is continued in effect
17-34 for that purpose.
17-35 SECTION 34. The changes in law made by this Act to Sections
17-36 682A(a) and 701, Texas Probate Code, apply only to an application
17-37 for the appointment of a guardian filed on or after the effective
17-38 date of this Act. An application for the appointment of a guardian
17-39 filed before the effective date of this Act is governed by the law
17-40 in effect on the date the application was filed, and the former law
17-41 is continued in effect for that purpose.
17-42 SECTION 35. Sections 760A and 760B, Texas Probate Code, as
17-43 added by this Act, apply only to a change in designation of or a
17-44 resignation of a resident agent made on or after the effective date
17-45 of this Act. A change in designation of or the resignation of a
17-46 resident agent made before the effective date of this Act is
17-47 governed by the law in effect when the change in designation of or
17-48 the resignation of the resident agent occurred, and the former law
17-49 is continued in effect for that purpose.
17-50 SECTION 36. The changes in law made by this Act to Section
17-51 761, Texas Probate Code, apply only to a motion or complaint for
17-52 the removal of a guardian made or filed on or after the effective
17-53 date of this Act. A motion or complaint for the removal of a
17-54 guardian made or filed before the effective date of this Act is
17-55 governed by the law in effect on the date the motion or complaint
17-56 was made or filed, and the former law is continued in effect for
17-57 that purpose.
17-58 SECTION 37. The changes in law made by Sections 2, 12, 18,
17-59 19, and 21 of this Act and Sections 883B, 883C, and 883D, Texas
17-60 Probate Code, as added by this Act, apply only to the estate of a
17-61 person for which a motion to judicially declare the person
17-62 incapacitated is filed on or after the effective date of this Act.
17-63 The estate of a person for which a motion to judicially declare the
17-64 person incapacitated is filed before the effective date of this Act
17-65 is governed by the law in effect when the motion was filed, and the
17-66 former law is continued in effect for that purpose.
17-67 SECTION 38. The change in law made by this Act to Section
17-68 745(c), Texas Probate Code, applies only to an application to close
17-69 a guardianship that is filed on or after the effective date of this
18-1 Act. An application to close a guardianship that is filed before
18-2 the effective date of this Act is governed by the law in effect on
18-3 the date the application was filed, and the former law is continued
18-4 in effect for that purpose.
18-5 SECTION 39. The change in law made by this Act to Section
18-6 875(c), Texas Probate Code, applies only to an application for the
18-7 appointment of a temporary guardian that is filed on or after the
18-8 effective date of this Act. An application for the appointment of
18-9 a temporary guardian that is filed before the effective date of
18-10 this Act is governed by the law in effect on the date the
18-11 application was filed, and the former law is continued in effect
18-12 for that purpose.
18-13 SECTION 40. This Act takes effect September 1, 2001.
18-14 * * * * *