By: Harris S.B. No. 1450
A BILL TO BE ENTITLED
AN ACT
relating to the authority of a guardian of the person of a ward to
transport the ward to an inpatient mental health facility and file
for emergency detention under certain circumstances and to consent
to the administration of certain medication.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (b), Section 743, Texas Probate Code,
is amended to read as follows:
(b) The guardian of the person, whether or not there is a
separate guardian of the estate, shall submit to the court an annual
report by sworn affidavit that contains the following information:
(1) the guardian's current name, address, and phone
number;
(2) the ward's current:
(A) name, address, and phone number; and
(B) age and date of birth;
(3) the type of home in which the ward resides,
described as the ward's own; a nursing, guardian's, foster, or
boarding home; a relative's home, and the ward's relationship to the
relative; a hospital or medical facility; or other type of
residence;
(4) the length of time the ward has resided in the
present home and, if there has been a change in the ward's residence
in the past year, the reason for the change;
(5) the date the guardian most recently saw the ward,
and how frequently the guardian has seen the ward in the past year;
(6) a statement indicating whether or not the guardian
has possession or control of the ward's estate;
(7) the following statements concerning the ward's
health during the past year:
(A) whether the ward's mental health has
improved, deteriorated, or remained unchanged, and a description if
there has been a change; and
(B) whether the ward's physical health has
improved, deteriorated, or remained unchanged, and a description if
there has been a change;
(8) a statement concerning whether or not the ward has
regular medical care, and the ward's treatment or evaluation by any
of the following persons during the last year, including the name of
that person, and the treatment involved:
(A) a physician;
(B) a psychiatrist, psychologist, or other
mental health care provider;
(C) a dentist;
(D) a social or other caseworker; or
(E) another individual who provided treatment;
(9) a description of the ward's activities during the
past year, including recreational, educational, social, and
occupational activities, or if no activities are available or if
the ward is unable or has refused to participate in them, a
statement to that effect;
(10) the guardian's evaluation of the ward's living
arrangements as excellent, average, or below average, including an
explanation if the conditions are below average;
(11) the guardian's evaluation of whether the ward is
content or unhappy with the ward's living arrangements;
(12) the guardian's evaluation of unmet needs of the
ward;
(13) a statement of whether or not the guardian's power
should be increased, decreased, or unaltered, including an
explanation if a change is recommended;
(14) a statement that the guardian has paid the bond
premium for the next reporting period; and
(15) any additional information the guardian desires
to share with the court regarding the ward, including whether the
guardian has filed for emergency detention of the ward under
Subchapter A, Chapter 573, Health and Safety Code, and if
applicable, the number of times the guardian has filed and the dates
of the applications.
SECTION 2. Section 767, Texas Probate Code, is amended to
read as follows:
Sec. 767. POWERS AND DUTIES OF GUARDIANS OF THE PERSON.
(a) The guardian of the person is entitled to the charge and
control of the person of the ward, and the duties of the guardian
correspond with the rights of the guardian. A guardian of the
person has:
(1) the right to have physical possession of the ward
and to establish the ward's legal domicile;
(2) the duty of care, control, and protection of the
ward;
(3) the duty to provide the ward with clothing, food,
medical care, and shelter; and
(4) the power to consent to medical, psychiatric, and
surgical treatment other than the in-patient psychiatric
commitment of the ward.
(b) Notwithstanding Subsection (a)(4) of this section, a
guardian of the person of a ward has the power to transport the ward
to an inpatient mental health facility for a preliminary
examination in accordance with Subchapters A and C, Chapter 573,
Health and Safety Code.
SECTION 3. Subsection (b), Section 770, Texas Probate Code,
is amended to read as follows:
(b) Except as provided by Subsection (c) or (d) of this
section, a guardian may not voluntarily admit an incapacitated
person to a public or private in-patient psychiatric facility or to
a residential facility operated by the Texas Department of Mental
Health and Mental Retardation for care and treatment. If care and
treatment in a psychiatric or a residential facility are necessary,
the person or the person's guardian may:
(1) apply for services under Section 593.027 or
593.028, Health and Safety Code;
(2) [, or] apply to a court to commit the person under
Subtitle D, Title 7, Health and Safety Code (Persons with Mental
Retardation Act), Subtitle C, Title 7, Health and Safety Code
(Texas Mental Health Code), or Chapter 462, Health and Safety Code;
or
(3) transport the ward to an inpatient mental health
facility for a preliminary examination in accordance with
Subchapters A and C, Chapter 573, Health and Safety Code.
SECTION 4. Subpart E, Part 4, Chapter XIII, Texas Probate
Code, is amended by adding Section 770A to read as follows:
Sec. 770A. ADMINISTRATION OF MEDICATION. (a) In this
section, "psychoactive medication" has the meaning assigned by
Section 574.101, Health and Safety Code.
(b) If a person under a protective custody order as provided
by Subchapter B, Chapter 574, Health and Safety Code, is a ward who
is not a minor, the guardian of the person of the ward may consent to
the administration of psychoactive medication as prescribed by the
ward's treating physician regardless of the ward's expressed
preferences regarding treatment with psychoactive medication.
SECTION 5. The heading of Subchapter A, Chapter 573, Health
and Safety Code, is amended to read as follows:
SUBCHAPTER A. APPREHENSION BY PEACE OFFICER
OR TRANSPORTATION FOR EMERGENCY DETENTION BY GUARDIAN
SECTION 6. Subchapter A, Chapter 573, Health and Safety
Code, is amended by adding Sections 573.003 and 573.004 to read as
follows:
Sec. 573.003. TRANSPORTATION FOR EMERGENCY DETENTION BY
GUARDIAN. (a) A guardian of the person of a ward who is 18 years of
age or older, without the assistance of a peace officer, may
transport the ward to an inpatient mental health facility for a
preliminary examination in accordance with Section 573.021 if the
guardian has reason to believe and does believe that:
(1) the ward is mentally ill; and
(2) because of that mental illness there is a
substantial risk of serious harm to the ward or to others unless the
ward is immediately restrained.
(b) A substantial risk of serious harm to the ward or others
under Subsection (a)(2) may be demonstrated by:
(1) the ward's behavior; or
(2) evidence of severe emotional distress and
deterioration in the ward's mental condition to the extent that the
ward cannot remain at liberty.
Sec. 573.004. GUARDIAN'S APPLICATION FOR EMERGENCY
DETENTION. (a) After transporting a ward to a facility under
Section 573.003, a guardian shall immediately file an application
for detention with the facility.
(b) The application for detention must contain:
(1) a statement that the guardian has reason to
believe and does believe that the ward evidences mental illness;
(2) a statement that the guardian has reason to
believe and does believe that the ward evidences a substantial risk
of serious harm to the ward or others;
(3) a specific description of the risk of harm;
(4) a statement that the guardian has reason to
believe and does believe that the risk of harm is imminent unless
the ward is immediately restrained;
(5) a statement that the guardian's beliefs are
derived from specific recent behavior, overt acts, attempts, or
threats that were observed by the guardian; and
(6) a detailed description of the specific behavior,
acts, attempts, or threats.
(c) The guardian shall immediately provide written notice
of the filing of an application under this section to the court that
granted the guardianship.
SECTION 7. Subsection (c), Section 573.021, Health and
Safety Code, is amended to read as follows:
(c) A physician shall examine the person as soon as possible
within 24 hours after the time the person is apprehended by the
peace officer or transported for emergency detention by the
person's guardian.
SECTION 8. Subsection (a), Section 573.023, Health and
Safety Code, is amended to read as follows:
(a) A person apprehended by a peace officer or transported
for emergency detention under Subchapter A or detained under
Subchapter B shall be released on completion of the preliminary
examination unless the person is admitted to a facility under
Section 573.022.
SECTION 9. Subsection (c), Section 573.024, Health and
Safety Code, is amended to read as follows:
(c) If the person was apprehended by a peace officer under
Subchapter A, arrangements must be made to immediately transport
the person. If the person was transported for emergency detention
under Subchapter A or detained under Subchapter B, the person is
entitled to reasonably prompt transportation.
SECTION 10. Section 573.025, Health and Safety Code, is
amended to read as follows:
Sec. 573.025. RIGHTS OF PERSONS APPREHENDED, [OR] DETAINED,
OR TRANSPORTED FOR EMERGENCY DETENTION. (a) A person apprehended,
[or] detained, or transported for emergency detention under this
chapter has the right:
(1) to be advised of the location of detention, the
reasons for the detention, and the fact that the detention could
result in a longer period of involuntary commitment;
(2) to a reasonable opportunity to communicate with
and retain an attorney;
(3) to be transported to a location as provided by
Section 573.024 if the person is not admitted for emergency
detention, unless the person is arrested or objects;
(4) to be released from a facility as provided by
Section 573.023;
(5) to be advised that communications with a mental
health professional may be used in proceedings for further
detention; and
(6) to be transported in accordance with Sections
573.026 and 574.045, if the person is detained under Section
573.022 or transported under an order of protective custody under
Section 574.023.
(b) A person apprehended, [or] detained, or transported for
emergency detention under this subtitle shall be informed of the
rights provided by this section:
(1) orally in simple, nontechnical terms, within 24
hours after the time the person is admitted to a facility, and in
writing in the person's primary language if possible; or
(2) through the use of a means reasonably calculated
to communicate with a hearing or visually impaired person, if
applicable.
SECTION 11. Section 574.103, Health and Safety Code, is
amended to read as follows:
Sec. 574.103. ADMINISTRATION OF MEDICATION TO PATIENT UNDER
COURT-ORDERED MENTAL HEALTH SERVICES. (a) In this section, "ward"
has the meaning assigned by Section 601, Texas Probate Code.
(b) A person may not administer a psychoactive medication to
a patient who refuses to take the medication voluntarily unless:
(1) the patient is having a medication-related
emergency; [or]
(2) the patient is under an order issued under Section
574.106 authorizing the administration of the medication
regardless of the patient's refusal; or
(3) the patient is a ward who is 18 years of age or
older and the guardian of the person of the ward consents to the
administration of psychoactive medication regardless of the ward's
expressed preferences regarding treatment with psychoactive
medication.
SECTION 12. This Act takes effect September 1, 2003.