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A BILL TO BE ENTITLED
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AN ACT
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relating to examination requirements in certain guardianship |
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matters concerning persons with mental retardation. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 687, Texas Probate Code, is amended to |
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read as follows: |
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Sec. 687. EXAMINATIONS AND REPORTS. (a) Except as |
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provided by Subsection (c) of this section, the [The] court may not |
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grant an application to create a guardianship for an incapacitated |
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person, other than a minor[, person whose alleged incapacity is
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mental retardation,] or person for whom it is necessary to have a |
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guardian appointed only to receive funds from a governmental |
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source, unless the applicant presents to the court a written letter |
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or certificate from a physician licensed in this state that is dated |
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not earlier than the 120th day before the date of the filing of the |
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application and based on an examination the physician performed not |
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earlier than the 120th day before the date of the filing of the |
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application. The letter or certificate must: |
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(1) describe the nature and degree of incapacity, |
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including the medical history if reasonably available; |
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(2) provide a medical prognosis specifying the |
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estimated severity of the incapacity; |
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(3) state how or in what manner the proposed ward's |
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ability to make or communicate responsible decisions concerning |
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himself or herself is affected by the person's physical or mental |
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health; |
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(4) state whether any current medication affects the |
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demeanor of the proposed ward or the proposed ward's ability to |
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participate fully in a court proceeding; |
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(5) describe the precise physical and mental |
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conditions underlying a diagnosis of senility, if applicable; and |
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(6) include any other information required by the |
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court. |
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(b) If [Except as provided by Subsection (c) of this
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section, if] the court determines it is necessary, the court may |
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appoint the necessary physicians to examine the proposed ward. The |
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court must make its determination with respect to the necessity for |
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a physician's examination of the proposed ward at a hearing held for |
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that purpose. Not later than the fourth day before the date of the |
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hearing, the applicant shall give to the proposed ward and the |
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proposed ward's attorney ad litem written notice specifying the |
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purpose and the date and time of the hearing. A physician who |
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examines the proposed ward, other than a physician or psychologist |
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who examines the proposed ward under Subsection (c)(2) [(c)] of |
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this section, shall make available to an attorney ad litem |
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appointed to represent the proposed ward, for inspection, a written |
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letter or certificate from the physician that complies with the |
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requirements of Subsection (a) of this section. |
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(c) If the basis of the proposed ward's alleged incapacity |
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is mental retardation, the court may not grant an application to |
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create a guardianship for the proposed ward unless the applicant |
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presents to the court: |
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(1) a written letter or certificate that complies with |
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Subsection (a) of this section; or |
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(2) both: |
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(A) [shall be examined by a physician or
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psychologist licensed in this state or certified by the Texas
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Department of Mental Health and Mental Retardation to perform the
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examination, unless there is] written documentation showing [filed
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with the court that shows] that, not earlier than 24 months before |
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the date of the hearing, the proposed ward has been examined by a |
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physician or psychologist licensed in this state or certified by |
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the Department of Aging and Disability Services to perform the |
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examination, in accordance with rules of the executive commissioner |
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of the Health and Human Services Commission governing examinations |
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of that kind; and |
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(B) the physician's or psychologist's [according
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to the rules adopted by the Texas Department of Mental Health and
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Mental Retardation not earlier than 24 months before the date of a
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hearing to appoint a guardian for the proposed ward. The physician
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or psychologist shall conduct the examination according to the
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rules adopted by the Texas Department of Mental Health and Mental
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Retardation and shall submit] written findings and recommendations |
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[to the court]. |
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SECTION 2. The changes in law made by this Act to Section |
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687, Texas Probate Code, apply only to an application for the |
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creation of a guardianship filed on or after the effective date of |
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this Act. An application for the creation of a guardianship filed |
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before the effective date of this Act is governed by the law in |
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effect on the date the application was filed, and the former law is |
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continued in effect for that purpose. |
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SECTION 3. This Act takes effect September 1, 2007. |