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.