By Coleman H.B. No. 2322
77R4575 MTB-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the authority of a guardian of the person of a ward to
1-3 consent to the voluntary admission of the ward to an inpatient
1-4 psychiatric facility.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 682, Texas Probate Code, is amended to
1-7 read as follows:
1-8 Sec. 682. APPLICATION; CONTENTS. Any person may commence a
1-9 proceeding for the appointment of a guardian by filing a written
1-10 application in a court having jurisdiction and venue. The
1-11 application must be sworn to by the applicant and state:
1-12 (1) the name, sex, date of birth, and address of the
1-13 proposed ward;
1-14 (2) the name, relationship, and address of the person
1-15 the applicant desires to have appointed as guardian;
1-16 (3) whether guardianship of the person or estate, or
1-17 both, is sought;
1-18 (4) the nature and degree of the alleged incapacity,
1-19 the specific areas of protection and assistance requested, and the
1-20 limitation of rights requested to be included in the court's order
1-21 of appointment;
1-22 (5) the facts requiring that a guardian be appointed
1-23 and the interest of the applicant in the appointment;
1-24 (6) the nature and description of any guardianship of
2-1 any kind existing for the proposed ward in any other state;
2-2 (7) the name and address of any person or institution
2-3 having the care and custody of the proposed ward;
2-4 (8) the approximate value and description of the
2-5 proposed ward's property, including any compensation, pension,
2-6 insurance, or allowance to which the proposed ward may be entitled;
2-7 (9) the name and address of any person whom the
2-8 applicant knows to hold a power of attorney signed by the proposed
2-9 ward and a description of the type of power of attorney;
2-10 (10) if the proposed ward is a minor, the names of the
2-11 parents and next of kin of the proposed ward and whether either or
2-12 both of the parents are deceased;
2-13 (11) if the proposed ward is a minor, whether the
2-14 minor was the subject of a legal or conservatorship proceeding
2-15 within the preceding two-year period and, if so, the court
2-16 involved, the nature of the proceeding, and the final disposition,
2-17 if any, of the proceeding;
2-18 (12) if the proposed ward is 60 years of age or older,
2-19 the names and addresses, to the best of the applicant's knowledge,
2-20 of the proposed ward's spouse, siblings, and children, or, if there
2-21 is no spouse, sibling, or child, the names and addresses of the
2-22 proposed ward's next of kin;
2-23 (13) facts showing that the court has venue over the
2-24 proceeding; [and]
2-25 (14) if applicable, that the person whom the applicant
2-26 desires to have appointed as a guardian is a private professional
2-27 guardian who has complied with the requirements of Section 697 of
3-1 this code; and
3-2 (15) whether the applicant is seeking authority for
3-3 the proposed guardian of the person to consent to the voluntary
3-4 admission of the ward to a public or private inpatient psychiatric
3-5 facility.
3-6 SECTION 2. Section 693(c), Texas Probate Code, is amended to
3-7 read as follows:
3-8 (c) The order of the court appointing a guardian must
3-9 specify:
3-10 (1) the name of the person appointed;
3-11 (2) the name of the ward;
3-12 (3) whether the guardian is of the person or the
3-13 estate, or of both, of the ward;
3-14 (4) the amount of any bond required;
3-15 (5) if it is a guardianship of the estate and the
3-16 court deems an appraisal is necessary, one or more but not more
3-17 than three disinterested persons to appraise the estate and to
3-18 return the appraisement to the court; [and]
3-19 (6) that the clerk will issue letters of guardianship
3-20 to the person appointed when the person has qualified according to
3-21 law; and
3-22 (7) if it is a guardianship of the person, whether the
3-23 guardian has the authority to consent to the voluntary admission of
3-24 the ward to a public or private inpatient psychiatric facility
3-25 subject to Section 770 of this code.
3-26 SECTION 3. Section 767, Texas Probate Code, is amended to
3-27 read as follows:
4-1 Sec. 767. POWERS AND DUTIES OF GUARDIANS OF THE PERSON. (a)
4-2 The guardian of the person is entitled to the charge and control of
4-3 the person of the ward, and the duties of the guardian correspond
4-4 with the rights of the guardian. A guardian of the person has:
4-5 (1) the right to have physical possession of the ward
4-6 and to establish the ward's legal domicile;
4-7 (2) the duty of care, control, and protection of the
4-8 ward;
4-9 (3) the duty to provide the ward with clothing, food,
4-10 medical care, and shelter; and
4-11 (4) the power to consent to medical, psychiatric, and
4-12 surgical treatment other than the in-patient psychiatric commitment
4-13 of the ward.
4-14 (b) Notwithstanding Subsection (a)(4) of this section, a
4-15 guardian of the person of a ward has the authority to consent to
4-16 the voluntary admission of the ward to a public or private
4-17 inpatient psychiatric facility if the guardian holds letters of
4-18 guardianship under an order specifically granting the guardian that
4-19 authority.
4-20 SECTION 4. Section 770, Texas Probate Code, is amended by
4-21 amending Subsection (b) and adding Subsections (e), (f), (g), and
4-22 (h) to read as follows:
4-23 (b) Except as provided by Subsection (c), [or] (d), (e),
4-24 (f), (g), or (h) of this section, a guardian may not voluntarily
4-25 admit an incapacitated person to a public or private in-patient
4-26 psychiatric facility or to a residential facility operated by the
4-27 Texas Department of Mental Health and Mental Retardation for care
5-1 and treatment. If care and treatment in a psychiatric or a
5-2 residential facility are necessary, the person or the person's
5-3 guardian may apply for services under Section 593.027 or 593.028,
5-4 Health and Safety Code, or apply to a court to commit the person
5-5 under Subtitle D, Title 7, Health and Safety Code (Persons with
5-6 Mental Retardation Act), Subtitle C, Title 7, Health and Safety
5-7 Code (Texas Mental Health Code), or Chapter 462, Health and Safety
5-8 Code.
5-9 (e) A guardian of the person of a ward acting under letters
5-10 of guardianship as described by Section 767(b) of this code may
5-11 consent to the voluntary admission of the ward to a public or
5-12 private inpatient psychiatric facility only if:
5-13 (1) the admission does not exceed 15 days for a single
5-14 admission or 45 days during any 12-month period; and
5-15 (2) before admission of the ward, a psychiatrist
5-16 licensed in this state specifies in a sworn, written statement
5-17 that:
5-18 (A) the admission is in the ward's best
5-19 interest; and
5-20 (B) the treatment is in the least restrictive
5-21 appropriate setting available.
5-22 (f) Not longer than 24 hours after the time of the admission
5-23 of a ward under Subsection (e) of this section, the guardian shall
5-24 return to the court that granted the guardianship a report of the
5-25 admission and the statement required under Subsection (e)(2) of
5-26 this section. The report must include the reason for the admission.
5-27 If the day of the ward's admission to a facility is a Saturday,
6-1 Sunday, or legal holiday, the period is extended to include the
6-2 next day that is not a Saturday, Sunday, or legal holiday.
6-3 (g) The court may appoint a guardian ad litem, attorney ad
6-4 litem, or both a guardian ad litem and an attorney ad litem for the
6-5 ward and provide them with a copy of the guardian's report and the
6-6 psychiatrist's statement for review and comment.
6-7 (h) Notwithstanding letters of guardianship issued under a
6-8 court order specifically granting the guardian authority to consent
6-9 to the admission, a guardian of the person of a ward may not
6-10 consent to the voluntary admission of the ward to a public or
6-11 private inpatient psychiatric facility for an admission period that
6-12 exceeds the period prescribed by Subsection (e) of this section
6-13 without the prior approval of the court that granted the
6-14 guardianship.
6-15 SECTION 5. This Act takes effect September 1, 2001, and
6-16 applies only to an application for the appointment of a guardian
6-17 that is filed on or after that date. An application for the
6-18 appointment of a guardian that is filed before the effective date
6-19 of this Act is governed by the law in effect on the date the
6-20 application was filed, and the former law is continued in effect
6-21 for that purpose.