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A BILL TO BE ENTITLED
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AN ACT
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relating to the rights of certain incapacitated persons that may be |
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terminated by a court in a guardianship proceeding. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 682, Texas Probate Code, is amended to |
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read as follows: |
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Sec. 682. APPLICATION; CONTENTS. Any person may commence a |
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proceeding for the appointment of a guardian by filing a written |
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application in a court having jurisdiction and venue. The |
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application must be sworn to by the applicant and state: |
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(1) the name, sex, date of birth, and address of the |
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proposed ward; |
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(2) the name, relationship, and address of the person |
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the applicant desires to have appointed as guardian; |
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(3) whether guardianship of the person or estate, or |
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both, is sought; |
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(4) the nature and degree of the alleged incapacity, |
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the specific areas of protection and assistance requested, and the |
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limitation or termination of rights requested to be included in the |
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court's order of appointment, including: |
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(A) a termination of the right of a proposed ward |
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18 years of age or older to cast a vote in a public election; and |
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(B) a termination of the proposed ward's right to |
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operate a motor vehicle; |
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(5) the facts requiring that a guardian be appointed |
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and the interest of the applicant in the appointment; |
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(6) the nature and description of any guardianship of |
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any kind existing for the proposed ward in any other state; |
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(7) the name and address of any person or institution |
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having the care and custody of the proposed ward; |
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(8) the approximate value and description of the |
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proposed ward's property, including any compensation, pension, |
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insurance, or allowance to which the proposed ward may be entitled; |
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(9) the name and address of any person whom the |
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applicant knows to hold a power of attorney signed by the proposed |
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ward and a description of the type of power of attorney; |
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(10) if the proposed ward is a minor and if known by |
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the applicant: |
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(A) the name of each parent of the proposed ward |
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and state the parent's address or that the parent is deceased; |
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(B) the name and age of each sibling, if any, of |
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the proposed ward and state the sibling's address or that the |
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sibling is deceased; and |
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(C) if each of the proposed ward's parents and |
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siblings are deceased, the names and addresses of the proposed |
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ward's next of kin who are adults; |
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(11) if the proposed ward is a minor, whether the minor |
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was the subject of a legal or conservatorship proceeding within the |
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preceding two-year period and, if so, the court involved, the |
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nature of the proceeding, and the final disposition, if any, of the |
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proceeding; |
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(12) if the proposed ward is an adult and if known by |
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the applicant: |
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(A) the name of the proposed ward's spouse, if |
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any, and state the spouse's address or that the spouse is deceased; |
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(B) the name of each of the proposed ward's |
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parents and state the parent's address or that the parent is |
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deceased; |
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(C) the name and age of each of the proposed |
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ward's siblings, if any, and state the sibling's address or that the |
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sibling is deceased; |
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(D) the name and age of each of the proposed |
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ward's children, if any, and state the child's address or that the |
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child is deceased; and |
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(E) if the proposed ward's spouse and each of the |
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proposed ward's parents, siblings, and children are deceased, or, |
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if there is no spouse, parent, adult sibling, or adult child, the |
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names and addresses of the proposed ward's next of kin who are |
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adults; |
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(13) facts showing that the court has venue over the |
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proceeding; and |
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(14) if applicable, that the person whom the applicant |
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desires to have appointed as a guardian is a private professional |
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guardian who is certified under Subchapter C, Chapter 111, |
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Government Code, and has complied with the requirements of Section |
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697 of this code. |
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SECTION 2. Subsection (a), Section 687, Texas Probate Code, |
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is amended to read as follows: |
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(a) The court may not grant an application to create a |
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guardianship for an incapacitated person, other than a minor, |
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person whose alleged incapacity is mental retardation, or person |
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for whom it is necessary to have a guardian appointed only to |
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receive funds from a governmental source, unless the applicant |
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presents to the court a written letter or certificate from a |
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physician licensed in this state that is dated not earlier than the |
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120th day before the date of the filing of the application and based |
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on an examination the physician performed not earlier than the |
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120th day before the date of the filing of the application. The |
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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) state whether in the physician's opinion the |
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proposed ward: |
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(A) has the capacity to cast a vote in a public |
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election; and |
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(B) has the ability to safely operate a motor |
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vehicle; and |
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(7) include any other information required by the |
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court. |
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SECTION 3. Subsections (a) and (b), Section 693, Texas |
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Probate Code, are amended to read as follows: |
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(a) If it is found that the proposed ward is totally without |
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capacity as provided by this code to care for himself or herself and |
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to manage the individual's property, the court may appoint a |
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guardian of the individual's person or estate, or both, with full |
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authority over the incapacitated person except as provided by law. |
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An order appointing a guardian under this subsection must contain |
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findings of fact and specify: |
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(1) the information required by Subsection (c) of this |
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section; |
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(2) that the guardian has full authority over the |
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incapacitated person; [and] |
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(3) if necessary, the amount of funds from the corpus |
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of the person's estate the court will allow the guardian to expend |
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for the education and maintenance of the person under Section 776 of |
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this code; |
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(4) that the person does not have the right to operate |
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a motor vehicle; and |
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(5) that the person, if 18 years of age or older and |
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totally incapacitated because of a mental condition, does not have |
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the right to cast a vote in a public election. |
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(b) If it is found that the person lacks the capacity to do |
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some, but not all, of the tasks necessary to care for himself or |
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herself or to manage the individual's property, the court may |
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appoint a guardian with limited powers and permit the individual to |
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care for himself or herself or to manage the individual's property |
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commensurate with the individual's ability. An order appointing a |
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guardian under this subsection must contain findings of fact and |
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specify: |
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(1) the information required by Subsection (c) of this |
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section; |
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(2) the specific powers, limitations, or duties of the |
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guardian with respect to the care of the person or the management of |
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the person's property by the guardian; [and] |
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(3) if necessary, the amount of funds from the corpus |
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of the person's estate the court will allow the guardian to expend |
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for the education and maintenance of the person under Section 776 of |
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this code; |
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(4) whether the person has the right to operate a motor |
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vehicle; and |
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(5) whether the person, if 18 years of age or older and |
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incapacitated because of a mental condition, retains the right to |
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cast a vote in a public election. |
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SECTION 4. The changes in law made by this Act apply only to |
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an application for the appointment of a guardian that is filed on or |
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after the effective date of this Act. An application for the |
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appointment of a guardian that is filed before the effective date of |
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this Act is governed by the law in effect on the date the |
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application was filed, and the former law is continued in effect for |
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that purpose. |
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SECTION 5. This Act takes effect September 1, 2007. |
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