79R663 MTB-F
By: Hartnett H.B. No. 1191
A BILL TO BE ENTITLED
AN ACT
relating to guardianship matters and proceedings.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 615, Texas Probate Code, is amended to
read as follows:
Sec. 615. TRANSFER [TRANSCRIPT] OF RECORD. When an order of
removal is made under Section 614 of this code, the clerk shall
record any unrecorded papers of the guardianship required to be
recorded [and make out a complete certified transcript of all the
orders, decrees, judgments, and proceedings in the guardianship].
On payment of the clerk's fee [fees], the clerk shall transmit [the
transcript, with the original papers in the case,] to the county
clerk of the county to which the guardianship was ordered removed:
(1) the case file of the guardianship proceedings; and
(2) a certified copy of the index of the guardianship
records.
SECTION 2. Section 616, Texas Probate Code, is amended to
read as follows:
Sec. 616. REMOVAL EFFECTIVE. The order removing a
guardianship does not take effect until:
(1) the case file and a certified copy of the index
[transcript] required by Section 615 of this code are [is] filed in
the office of the county clerk of the county to which the
guardianship was ordered removed; and
(2) a certificate under the clerk's official seal and
reporting the filing of the case file and a certified copy of the
index [transcript] is filed in the court ordering the removal by the
county clerk of the county to which the guardianship was ordered
removed.
SECTION 3. Section 672(b), Texas Probate Code, is amended
to read as follows:
(b) In reviewing a guardianship as provided by Subsection
(a) of this section, a statutory probate court may:
(1) review any report prepared by a court investigator
under Section 648A or 694A(c) of this code;
(2) review any report prepared by a guardian ad litem
under Section 694A(c) of this code;
(3) review any report prepared by a court visitor
under Section 648 of this code;
(4) [(3)] conduct a hearing; or
(5) [(4)] review an annual account prepared under
Section 741 of this code or a report prepared under Section 743 of
this code.
SECTION 4. Section 694A(c), Texas Probate Code, is amended
to read as follows:
(c) On receipt of an informal letter under Subsection (b) of
this section, the court shall appoint the court investigator or a
guardian ad litem to investigate the circumstances of the ward,
including any circumstances alleged in the informal letter, to
determine whether the ward is no longer an incapacitated person or
whether a modification of the guardianship is necessary. The court
investigator or guardian ad litem shall file with the court a report
of the investigation's findings and conclusions and, if the court
investigator or the guardian ad litem determines that it is in the
best interest of the ward to terminate or modify the guardianship,
the court investigator or guardian ad litem, as appropriate, shall
file an application under Subsection (a) of this section on the
ward's behalf. A guardian ad litem appointed under this subsection
may also be appointed by the court to serve as attorney ad litem
under Section 694C of this code.
SECTION 5. Section 761(a), Texas Probate Code, is amended
to read as follows:
(a) The court, on its own motion or on motion of any
interested person, including the ward, and without notice, may
remove any guardian, appointed under this chapter, who:
(1) neglects to qualify in the manner and time
required by law;
(2) fails to return within 30 [90] days after
qualification, unless the time is extended by order of the court, an
inventory of the property of the guardianship estate and list of
claims that have come to the guardian's knowledge;
(3) having been required to give a new bond, fails to
do so within the time prescribed;
(4) absents himself from the state for a period of
three months at one time without permission of the court, or removes
from the state;
(5) cannot be served with notices or other processes
because of the fact that:
(A) the guardian's whereabouts are unknown;
(B) the guardian is eluding service; or
(C) the guardian is a nonresident of this state
who does not have a resident agent to accept service of process in
any guardianship proceeding or other matter relating to the
guardianship;
(6) has misapplied, embezzled, or removed from the
state, or is about to misapply, embezzle, or remove from the state,
all or any part of the property committed to the guardian's care;
or
(7) has cruelly treated a ward, or has neglected to
educate or maintain the ward as liberally as the means of the ward
and the condition of the ward's estate permit.
SECTION 6. Section 776(a-3), Texas Probate Code, is amended
to read as follows:
(a-3) When different persons have the guardianship of the
person and estate of a ward, the court's order setting a monthly
allowance must specify the amount, if any, set by the court for the
education and maintenance of the ward that the guardian of the
estate shall pay and the amount, if any, the guardian of the estate
shall pay to the guardian of the person [the monthly allowance set
by the court], at a time specified by the court, for the education
and maintenance of the ward. If the guardian of the estate fails to
pay to the guardian of the person the monthly allowance set by the
court, the guardian of the estate shall be compelled to make the
payment by court order after the guardian is duly cited to appear.
SECTION 7. Section 788, Texas Probate Code, is amended to
read as follows:
Sec. 788. CLAIMS MUST BE AUTHENTICATED. Except as provided
by Section 792 of this code [this section], with respect to the
payment of an unauthenticated claim by a guardian, a guardian of the
estate may not allow and the court may not approve a claim for money
against the estate, unless the claim is supported by an affidavit
that the claim is just and that all legal offsets, payments, and
credits known to the affiant have been allowed. If the claim is not
founded on a written instrument or account, the affidavit must also
state the facts on which the claim is founded. A photostatic copy
of an exhibit or voucher necessary to prove a claim under this
section may be offered with and attached to the claim instead of the
original.
SECTION 8. Section 831(c), Texas Probate Code, is amended
to read as follows:
(c) A [After issuing the notice required by this subsection,
a] guardian of an estate may purchase property from the estate on
the court's determination that the sale is in the best interest of
the estate. [The guardian shall give notice by certified mail,
return receipt requested, unless the court requires another form of
notice, to each distributee of a deceased person's estate and to
each creditor whose claim remains unsettled after presenting a
claim within six months of the original grant of letters.] In the
case of an application filed by the guardian of the estate of a
ward, the court shall appoint an attorney ad litem to represent the
ward with respect to the sale. The court may require [additional]
notice [or it may allow for the waiver of the notice required] for a
sale made under this subsection.
SECTION 9. Section 855B, Texas Probate Code, is amended by
amending Subsections (a) and (b) and adding Subsections (e) and (f)
to read as follows:
(a) Not later than the 180th day after the date on which the
guardian of the estate qualified as guardian or another date
specified by the court, the guardian shall file a written
application with the court for an order:
(1) authorizing the guardian to:
(A) develop and implement an investment plan for
estate assets;
(B) invest in or sell securities under an
investment plan developed under Subdivision (1)(A) of this
subsection;
(C) declare that one or more estate assets must
be retained, despite being underproductive with respect to income
or overall return; or
(D) [(C)] loan estate funds, invest in real
estate or make other investments, or purchase a life, term, or
endowment insurance policy or an annuity contract; or
(2) modifying or eliminating the guardian's duty to
invest the estate.
(b) On hearing the application under this section and on a
finding by the preponderance of the evidence that the action
requested in the application is in the best interests of the ward
and the ward's estate, the court shall render an order granting the
authority requested in the application or an order modifying or
eliminating the guardian's duty to keep the estate invested. The
order must state in reasonably specific terms:
(1) the nature of the investment, investment plan, or
other action requested in the application and authorized by the
court, including, if applicable, the authority to invest in and
sell securities in accordance with the objectives of the investment
plan;
(2) when an investment must be reviewed and
reconsidered by the guardian; and
(3) whether the guardian must report the guardian's
review and recommendations to the court.
(e) An investment plan developed under Subsection (a)(1)(A)
of this section must include an overall investment strategy for
estate assets, including investment risk and return objectives.
(f) A citation or notice is not necessary under this section
unless ordered by the court.
SECTION 10. Subpart A, Part 5, Chapter XIII, Texas Probate
Code, is amended by adding Section 874 to read as follows:
Sec. 874. PRESUMPTION OF INCAPACITATION. The person for
whom a temporary guardian is appointed under Section 875 of this
code may not be presumed to be incapacitated in other legal
proceedings.
SECTION 11. The changes in law made by this Act to Sections
615 and 616, Texas Probate Code, apply only to an application for
transfer of a guardianship filed on or after the effective date of
this Act. An application for transfer of a guardianship filed
before the effective date of this Act is governed by the law in
effect on the date the application was filed, and the former law is
continued in effect for that purpose.
SECTION 12. The change in law made by this Act to Section
694A, Texas Probate Code, applies only to an application for the
restoration of a ward's capacity or modification of a guardianship
that is filed on or after the effective date of this Act. An
application for the restoration of a ward's capacity or
modification of a ward's guardianship that is filed before the
effective date of this Act is governed by the law in effect on the
date the application was filed, and the former law is continued in
effect for that purpose.
SECTION 13. The changes in law made by this Act to Sections
776 and 855B, Texas Probate Code, apply only to an application for
the appointment of a guardian filed on or after the effective date
of this Act. An application for the appointment of a guardian filed
before the effective date of this Act is governed by the law in
effect on the date the application was filed, and the former law is
continued in effect for that purpose.
SECTION 14. The change in law made by this Act to Section
831(c), Texas Probate Code, applies only to an application by a
guardian of an estate for the purchase of estate property filed on
or after the effective date of this Act. An application by a
guardian of an estate for the purchase of estate property filed
before the effective date of this Act is governed by the law in
effect on the date the application was filed, and the former law is
continued in effect for that purpose.
SECTION 15. This Act takes effect September 1, 2005.