By Hartnett H.B. No. 3144
77R9290 CLG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to incapacitated persons, wards, and former wards.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Sections 633(d) and (f), Texas Probate Code, are
1-5 amended to read as follows:
1-6 (d) The court clerk, at the applicant's request, or the
1-7 applicant shall mail a copy of the notice by registered or
1-8 certified mail, return receipt requested, to the following persons
1-9 if their whereabouts are known or can be reasonably ascertained:
1-10 (1) [all adult siblings and] all adult children of a
1-11 proposed ward;
1-12 (2) all adult siblings of a proposed ward;
1-13 (3) the administrator of a nursing home facility or
1-14 similar facility in which the proposed ward resides;
1-15 (4) [(3)] the operator of a residential facility in
1-16 which the proposed ward resides;
1-17 (5) [(4)] a person whom the applicant knows to hold a
1-18 power of attorney signed by the proposed ward;
1-19 (6) [(5)] a person designated to serve as guardian of
1-20 the proposed ward by a written declaration under Section 679 of
1-21 this code, if the applicant knows of the existence of the
1-22 declaration;
1-23 (7) [(6)] a person designated to serve as guardian of
1-24 the proposed ward in the probated will of the last surviving parent
2-1 of the ward; and
2-2 (8) [(7)] a person designated to serve as guardian of
2-3 the proposed ward by a written declaration of the proposed ward's
2-4 last surviving parent, if the declarant is deceased and the
2-5 applicant knows of the existence of the declaration.
2-6 (f) The court may not act on an application for the creation
2-7 of a guardianship until the Monday following the expiration of the
2-8 10-day period beginning the date service of notice and citation has
2-9 been made as provided by Subsections (b), (c), and (d)(1) of this
2-10 section. The validity of a guardianship created under this chapter
2-11 is not affected by the failure of the clerk or applicant to comply
2-12 with the requirements of Subsections (d)(2)-(8) [(d)(2)-(7)] of
2-13 this section.
2-14 SECTION 2. Section 687(b), Texas Probate Code, is amended to
2-15 read as follows:
2-16 (b) Except as provided by Subsection (c) of this section, if
2-17 the court determines it is necessary, the court may appoint the
2-18 necessary physicians to examine the proposed ward. The court must
2-19 make its determination with respect to the necessity for a
2-20 physician's examination of the proposed ward at a hearing held for
2-21 that purpose. Not later than the fourth day before the date of the
2-22 hearing, the applicant shall give to the proposed ward and the
2-23 proposed ward's attorney ad litem written notice specifying the
2-24 purpose and the date and time of the hearing. A physician who
2-25 examines the proposed ward, other than a physician or psychologist
2-26 who examines the proposed ward under Subsection (c) of this
2-27 section, shall make available to an attorney ad litem appointed to
3-1 represent the proposed ward, for inspection, a written letter or
3-2 certificate from the physician that complies with the requirements
3-3 of Subsection (a) of this section.
3-4 SECTION 3. Section 694G, Texas Probate Code, is amended to
3-5 read as follows:
3-6 Sec. 694G. ORDER OF COMPLETE RESTORATION OF WARD'S CAPACITY.
3-7 If the court finds that a ward is no longer an incapacitated
3-8 person, the order completely restoring the ward's capacity must
3-9 contain findings of fact and specify:
3-10 (1) the information required by Section 694J of this
3-11 code;
3-12 (2) that the ward is no longer an incapacitated
3-13 person;
3-14 (3) that there is no further need for a guardianship
3-15 of the person or estate of the ward;
3-16 (4) that the guardian is required to:
3-17 (A) immediately settle and close the
3-18 guardianship in accordance with [Section 745 of] this chapter
3-19 [code]; and
3-20 (B) deliver all of the remaining guardianship
3-21 estate to the ward; and
3-22 (5) that the clerk shall revoke letters of
3-23 guardianship when the guardianship is finally settled and closed.
3-24 SECTION 4. Section 745(c), Texas Probate Code, is amended to
3-25 read as follows:
3-26 (c) When the estate of a minor ward consists only of cash or
3-27 cash equivalents in an amount of $100,000 [$25,000] or less, the
4-1 guardianship of the estate may be terminated and the assets paid to
4-2 the county clerk of the county in which the guardianship proceeding
4-3 is pending, and the clerk shall manage the funds as provided by
4-4 Section 887 of this code.
4-5 SECTION 5. Section 784, Texas Probate Code, is amended by
4-6 adding Subsection (e) to read as follows:
4-7 (e) In the notice required by Subsection (b) of this
4-8 section, the guardian of the estate may expressly state in the
4-9 notice that the unsecured creditor must present a claim not later
4-10 than the 120th day after the date on which the unsecured creditor
4-11 receives the notice or the claim is barred, if the claim is not
4-12 barred by the general statutes of limitation. The notice under
4-13 this subsection must include:
4-14 (1) the address to which claims may be presented; and
4-15 (2) an instruction that the claim be filed with the
4-16 clerk of the court issuing the letters of guardianship.
4-17 SECTION 6. Section 786(a), Texas Probate Code, is amended to
4-18 read as follows:
4-19 (a) A claim may be presented to the guardian of the estate
4-20 at any time when the estate is not closed and when suit on the
4-21 claim has not been barred by the general statutes of limitation. A
4-22 claim of an unsecured creditor for money that is not presented
4-23 within the time prescribed by the notice of presentment permitted
4-24 by Section 784(e) of this code is barred.
4-25 SECTION 7. Section 867, Texas Probate Code, is amended to
4-26 read as follows:
4-27 Sec. 867. CREATION OF MANAGEMENT TRUST. (a) In this
5-1 section, "financial institution" means a financial institution, as
5-2 defined by Section 201.101, Finance Code, that has trust powers and
5-3 exists and does business under the laws of this or another state or
5-4 the United States.
5-5 (b) On application by the guardian of a ward or by a ward's
5-6 attorney ad litem at any time after the date of the attorney's
5-7 appointment under Section 646 of this code, the court in which the
5-8 guardianship proceeding is pending may enter an order that creates
5-9 for the ward's benefit a trust for the management of guardianship
5-10 funds if the court finds that the creation of the trust is in the
5-11 ward's best interests. The court shall appoint a financial
5-12 institution to serve as trustee of the trust. The order shall
5-13 direct the guardian or another person to deliver all or part of the
5-14 assets of the guardianship to the corporate fiduciary appointed by
5-15 the court as trustee of the trust [a trust company or a state or
5-16 national bank that has trust powers in this state]. The order
5-17 shall include terms, conditions, and limitations placed on the
5-18 trust. The court shall maintain the trust under the same cause
5-19 number as the guardianship proceeding.
5-20 SECTION 8. Sections 887(a) and (e), Texas Probate Code, are
5-21 amended to read as follows:
5-22 (a) When a resident person who is a minor or other
5-23 incapacitated person, or the former ward of a guardianship
5-24 terminated under Subpart C, Part 4, of this code, who are referred
5-25 to in this section as "creditor," are without a legal guardian of
5-26 the person's estate, and the person is entitled to money in an
5-27 amount that is $100,000 [$50,000] or less, the right to which is
6-1 liquidated and is uncontested in any pending lawsuit, the debtor
6-2 may pay the money to the county clerk of the county in which the
6-3 creditor resides to the account of the creditor, giving the
6-4 creditor's name, the creditor's social security identification
6-5 number, the nature of the creditor's disability, and, if the
6-6 creditor is a minor, the minor's age, and the creditor's
6-7 post-office address. The receipt for the money signed by the clerk
6-8 is binding on the creditor as of the date of receipt and to the
6-9 extent of the payment. The clerk, by letter mailed to the address
6-10 given by the debtor, shall apprise the creditor of the fact that
6-11 the deposit was made. On receipt of the payment by the clerk, the
6-12 clerk shall call the receipt of the payment to the court's
6-13 attention and shall invest the money as authorized under this
6-14 chapter pursuant to court order in the name and for the account of
6-15 the minor or other person entitled to the money. Any increase,
6-16 dividend, or income from an investment made under this section
6-17 shall be credited to the account of the minor or other person
6-18 entitled to the investment. Any money that is deposited under the
6-19 terms of this section that has not been paid out shall be subject
6-20 to the provisions of this chapter not later than October 1, 1993.
6-21 (e) When a nonresident minor, a nonresident person who is
6-22 adjudged by a court of competent jurisdiction to be incapacitated,
6-23 or the former ward of a guardianship terminated under Subpart C,
6-24 Part 4, of this code who has no legal guardian qualified in this
6-25 state is entitled to money in an amount that is not more than
6-26 $100,000 [$50,000] owing as a result of transactions within this
6-27 state, the right to which is liquidated and is uncontested in any
7-1 pending lawsuit in this state, the debtor in this state may pay the
7-2 money to the guardian of the creditor who is duly qualified in the
7-3 domiciliary jurisdiction or to the county clerk of any county in
7-4 this state in which real property owned by the nonresident person
7-5 is located. If the person is not known to own any real property in
7-6 any county in this state the debtor has the right to pay the money
7-7 to the county clerk of the county of this state in which the debtor
7-8 resides. In either case, the debtor's payment to the clerk is for
7-9 the use and benefit and for the account of the nonresident
7-10 creditor. The receipt for the payment signed by the clerk that
7-11 recites the name of the creditor and the post office address of the
7-12 creditor, if known, is binding on the creditor as of the date and
7-13 to the extent of the payment. The clerk shall handle the money
7-14 paid to the clerk by the debtor in the same manner as provided for
7-15 cases of payments to the accounts of residents of this state under
7-16 Subsections (a)-(d) of this section. All applicable provisions of
7-17 Subsections (a)-(d) of this section apply to the handling and
7-18 disposition of money or any increase, dividend, or income paid to
7-19 the clerk for the use, benefit, and account of the nonresident
7-20 creditor.
7-21 SECTION 9. Section 889(a), Texas Probate Code, is amended to
7-22 read as follows:
7-23 (a) When a minor has an interest in real or personal
7-24 property and the net value of the [minor's] interest [in real or
7-25 personal property in an estate] does not exceed $100,000 [$50,000],
7-26 a natural or adoptive parent, or the managing conservator, of a
7-27 minor who is not a ward may apply to the court for an order to sell
8-1 the minor's interest in the [real or personal] property [of a minor
8-2 in an estate] without being appointed guardian. A minor may not
8-3 disaffirm a sale of property pursuant to a court order under this
8-4 section.
8-5 SECTION 10. Section 890(b), Texas Probate Code, is amended to
8-6 read as follows:
8-7 (b) When a ward has an interest in real or personal property
8-8 in an estate and the net value of the interest does not exceed
8-9 $100,000 [$50,000], the guardian may apply under oath to the court
8-10 for an order to sell the ward's interest in the property without
8-11 being appointed guardian of the estate. A ward may not disaffirm a
8-12 sale of property pursuant to a court order under this section.
8-13 SECTION 11. The changes in law made by Sections 1, 2, 4, 5,
8-14 6, 7, 9, and 10 of this Act apply only to an application for the
8-15 appointment of a guardian that is filed on or after the effective
8-16 date of this Act. An application for the appointment of a guardian
8-17 that is filed before the effective date of this Act is governed by
8-18 the law in effect on the date the application was filed, and the
8-19 former law is continued in effect for that purpose.
8-20 SECTION 12. The change in law made by Section 3 of this Act
8-21 applies only to an application for the restoration of a ward's
8-22 capacity that is filed on or after the effective date of this Act.
8-23 An application for the restoration of a ward's capacity that is
8-24 filed before the effective date of this Act is governed by the law
8-25 in effect on the date the application was filed, and the former law
8-26 is continued in effect for that purpose.
8-27 SECTION 13. This Act takes effect September 1, 2001.