By:  Harris                                           S.B. No. 1719
         Line and page numbers may not match official copy.
         Bill not drafted by TLC or Senate E&E.
                                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;
 2-1                 (6)  the nature and description of any guardianship of
 2-2     any kind existing for the proposed ward in any other state;
 2-3                 (7)  the name and address of any person or institution
 2-4     having the care and custody of the proposed ward;
 2-5                 (8)  the approximate value and description of the
 2-6     proposed ward's property, including any compensation, pension,
 2-7     insurance, or allowance to which the proposed ward may be entitled;
 2-8                 (9)  the name and address of any person whom the
 2-9     applicant knows to hold a power of attorney signed by the proposed
2-10     ward and a description of the type of power of attorney;
2-11                 (10)  if the proposed ward is a minor, the names of the
2-12     parents and next of kin of the proposed ward and whether either or
2-13     both of the parents are deceased;
2-14                 (11)  if the proposed ward is a minor, whether the
2-15     minor was the subject of a legal or conservatorship proceeding
2-16     within the preceding two-year period and, if so, the court
2-17     involved, the nature of the proceeding, and the final disposition,
2-18     if any, of the proceeding;
2-19                 (12)  if the proposed ward is 60 years of age or older,
2-20     the names and addresses, to the best of the applicant's knowledge,
2-21     of the proposed ward's spouse, siblings, and children, or, if there
2-22     is no spouse, sibling, or child, the names and addresses of the
2-23     proposed ward's next of kin;
2-24                 (13)  facts showing that the court has venue over the
2-25     proceeding; [and]
2-26                 (14)  if applicable, that the person whom the applicant
 3-1     desires to have appointed as a guardian is a private professional
 3-2     guardian who has complied with the requirements of Section 697 of
 3-3     this code; and
 3-4                 (15)  whether the applicant is seeking authority for
 3-5     the proposed guardian of the person to consent to the voluntary
 3-6     admission of the ward to a public or private inpatient psychiatric
 3-7     facility.
 3-8           SECTION 2.  Section 693(c), Texas Probate Code, is amended to
 3-9     read as follows:
3-10           (c)  The order of the court appointing a guardian must
3-11     specify:
3-12                 (1)  the name of the person appointed;
3-13                 (2)  the name of the ward;
3-14                 (3)  whether the guardian is of the person or the
3-15     estate, or of both, of the ward;
3-16                 (4)  the amount of any bond required;
3-17                 (5)  if it is a guardianship of the estate and the
3-18     court deems an appraisal is necessary, one or more but not more
3-19     than three disinterested persons to appraise the estate and to
3-20     return the appraisement to the court;  [and]
3-21                 (6)  that the clerk will issue letters of guardianship
3-22     to the person appointed when the person has qualified according to
3-23     law; and
3-24                 (7)  if it is a guardianship of the person, whether the
3-25     guardian has the authority to consent to the voluntary admission of
3-26     the ward to a public or private inpatient psychiatric facility
 4-1     subject to Section 770 of this code.
 4-2           SECTION 3.  Section 767, Texas Probate Code, is amended to
 4-3     read as follows:
 4-4            Sec. 767.  POWERS AND DUTIES OF GUARDIANS OF THE PERSON.
 4-5     (a)  The guardian of the person is entitled to the charge and
 4-6     control of the person of the ward, and the duties of the guardian
 4-7     correspond with the rights of the guardian.    A guardian of the
 4-8     person has:
 4-9                 (1)  the right to have physical possession of the ward
4-10     and to establish the ward's legal domicile;
4-11                 (2)  the duty of care, control, and protection of the
4-12     ward;
4-13                 (3)  the duty to provide the ward with clothing, food,
4-14     medical care, and shelter; and
4-15                 (4)  the power to consent to medical, psychiatric, and
4-16     surgical treatment other than the in-patient psychiatric commitment
4-17     of the ward.
4-18           (b)  Notwithstanding Subsection (a)(4) of this section, a
4-19     guardian of the person of a ward has the authority to consent to
4-20     the voluntary admission of the ward to a public or private
4-21     inpatient psychiatric facility if the guardian holds letters of
4-22     guardianship under an order specifically granting the guardian that
4-23     authority.
4-24           SECTION 4.  Section 770, Texas Probate Code, is amended by
4-25     amending Subsection (b) and adding Subsections (e), (f), (g), and
4-26     (h) to read as follows:
 5-1           (b)  Except as provided by Subsection (c), [or] (d), (e),
 5-2     (f), (g), or (h) of this section, a guardian may not voluntarily
 5-3     admit an incapacitated person to a public or private in-patient
 5-4     psychiatric facility or to a residential facility operated by the
 5-5     Texas Department of Mental Health and Mental Retardation for care
 5-6     and treatment.  If care and treatment in a psychiatric or a
 5-7     residential facility are necessary, the person or the person's
 5-8     guardian may apply for services under Section 593.027 or 593.028,
 5-9     Health and Safety Code, or apply to a court to commit the person
5-10     under Subtitle D, Title 7, Health and Safety Code (Persons with
5-11     Mental Retardation Act), Subtitle C, Title 7, Health and Safety
5-12     Code (Texas Mental Health Code), or Chapter 462, Health and Safety
5-13     Code.
5-14           (e)  A guardian of the person of a ward acting under letters
5-15     of guardianship as described by Section 767(b) of this code may
5-16     consent to the voluntary admission of the ward to a public or
5-17     private inpatient psychiatric facility only if:
5-18                 (1)  the admission does not exceed 15 days for a single
5-19     admission or 45 days during any 12-month period; and
5-20                 (2)  before admission of the ward, a psychiatrist
5-21     licensed in this state specifies in a sworn, written statement
5-22     that:
5-23                       (A)  the admission is in the ward's best
5-24     interest; and
5-25                       (B)  the treatment is in the least restrictive
5-26     appropriate setting available.
 6-1           (f)  Not longer than 24 hours after the time of the admission
 6-2     of a ward under Subsection (e) of this section, the guardian shall
 6-3     return to the court that granted the guardianship a report of the
 6-4     admission and the statement required under Subsection (e)(2) of
 6-5     this section.  The report must include the reason for the
 6-6     admission.  If the day of the ward's admission to a facility is a
 6-7     Saturday, Sunday, or legal holiday, the period is extended to
 6-8     include the next day that is not a Saturday, Sunday, or legal
 6-9     holiday.
6-10           (g)  The court may appoint a guardian ad litem, attorney ad
6-11     litem, or both a guardian ad litem and an attorney ad litem for the
6-12     ward and provide them with a copy of the guardian's report and the
6-13     psychiatrist's statement for review and comment.
6-14           (h)  Notwithstanding letters of guardianship issued under a
6-15     court order specifically granting the guardian authority to consent
6-16     to the admission, a guardian of the person of a ward may not
6-17     consent to the voluntary admission of the ward to a public or
6-18     private inpatient psychiatric facility for an admission period that
6-19     exceeds the period prescribed by Subsection (e) of this section
6-20     without the prior approval of the court that granted the
6-21     guardianship.
6-22           SECTION 5.  This Act takes effect September 1, 2001, and
6-23     applies only to an application for the appointment of a guardian
6-24     that is filed on or after that date.  An application for the
6-25     appointment of a guardian that is filed before the effective date
6-26     of this Act is governed by the law in effect on the date the
 7-1     application was filed, and the former law is continued in effect
 7-2     for that purpose.