C.S.H.B. 2189 78(R)    BILL ANALYSIS


C.S.H.B. 2189
By: Rodriguez
Judicial Affairs
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Temporary guardianships were originally established to offer immediate
relief in emergency situations involving a minor or incapacitated adult.
In practice today, however, temporary guardianships are often impractical
and overly burdensome.  Meanwhile, the legislature has adopted other
statutes to deal with common emergency situations.  For example, a family
member deciding whether to terminate a person's life support does not need
a temporary guardianship since the Health and Safety Code authorizes this
action.   

Some parties believe that the current law governing temporary
guardianships is overly broad and may lead to abuses of the ward by the
temporary guardian, since current law allows probate courts to create
temporary guardianships on an ex parte basis without notice or hearing.
C.S.H.B. 2189 mandates that a person seeking a temporary guardianship must
first file a sworn written application. Once filed, the court must appoint
an attorney ad litem for the proposed ward and set a hearing date, with
notice provided to both the proposed ward and the attorney ad litem.  The
court can create a temporary guardianship only after the hearing. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency, or
institution. 

ANALYSIS

C.S.H.B. 2189 amends the Probate Code to provide that a sworn, written
application for the appointment of a temporary guardian shall be filed
before the court appoints a temporary guardian. On the filing of the
application, the court shall appoint an attorney to represent the proposed
ward, shall issue notice to the proposed ward and the attorney ad litem,
and attach a copy of the application to the notice. The bill mandates that
a hearing be held within 10 days of the filing of the application for
temporary guardianship, although the respondent may consent to postpone
the hearing for a period not to exceed 30 days.   

The bill also mandates that the court set bond for the temporary guardian,
and that the court describe the reasons for the temporary guardianship and
the powers and duties of the temporary guardian in the order of
appointment.  The bill also provides that if an application for a
temporary guardianship, for the conversion of a temporary guardianship to
a permanent guardianship, or for a permanent guardianship is challenged or
contested in court, the court may appoint a new temporary guardian or
grant a temporary restraining order under Rule 680 of the Texas Rules of
Civil Procedure, or both. 

EFFECTIVE DATE

September 1, 2003.


COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute changes a certain reference from "Subpart B" to "Subpart B,
Part 3" to clarify the section of the code to which the bill is referring.

 The substitute reinstates language providing that a person for whom a
temporary guardian has been appointed may not be presumed to be
incapacitated.  This language is found in the  current statue but was
deleted in the original.