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A BILL TO BE ENTITLED
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AN ACT
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relating to guardianships and other matters relating to |
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incapacitated persons. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 608, Texas Probate Code, is amended to |
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read as follows: |
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Sec. 608. TRANSFER OF GUARDIANSHIP PROCEEDING. (a) A judge |
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of a statutory probate court, on the motion of a party to the action |
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or of a person interested in a guardianship, may transfer to the |
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judge's court from a district, county, or statutory court a cause of |
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action appertaining to or incident to a guardianship estate that is |
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pending in the statutory probate court or a cause of action relating |
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to a guardianship in which a guardian, ward, or proposed ward in a |
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guardianship pending in the statutory probate court is a party and |
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may consolidate the transferred cause of action with the other |
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proceedings in the statutory probate court relating to the |
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guardianship estate. |
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(b) Except with respect to a cause of action described by |
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Section 15.007, Civil Practice and Remedies Code, or Section |
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123.005, Property Code, venue of a cause of action described by |
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Subsection (a) of this section is proper, as provided by Section |
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610A(a) of this code, in the statutory probate court in which the |
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guardianship is pending, and the judge of the statutory probate |
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court may transfer the cause of action as provided by Subsection (a) |
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of this section to the statutory probate court, regardless of |
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whether venue would otherwise be proper or mandatory in the county |
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of the court from which the action will be transferred. |
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SECTION 2. Subpart B, Part 2, Chapter XIII, Texas Probate |
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Code, is amended by adding Section 610A to read as follows: |
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Sec. 610A. VENUE FOR CERTAIN ACTIONS APPERTAINING TO OR |
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INCIDENT TO AN ESTATE OR IN WHICH GUARDIAN, WARD, OR PROPOSED WARD |
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IS PARTY. (a) Except with respect to a cause of action described |
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by Section 15.007, Civil Practice and Remedies Code, venue for the |
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following is proper in the court in which the guardianship estate is |
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pending: |
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(1) a cause of action appertaining to or incident to a |
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guardianship estate; and |
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(2) a cause of action related to a guardianship in |
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which a guardian, ward, or proposed ward is a party. |
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(b) Except with respect to a cause of action described by |
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Section 15.007, Civil Practice and Remedies Code, venue for a cause |
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of action against a former guardian of a ward is proper in the court |
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in which the ward's guardianship is pending or was last pending. |
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(c) Notwithstanding any other provision of this chapter, |
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the proper venue for an action by or against a guardian for personal |
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injury, death, or any property damages related to the personal |
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injury or death action is determined under Section 15.007, Civil |
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Practice and Remedies Code. |
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SECTION 3. Section 665, Texas Probate Code, is amended by |
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amending Subsections (a), (b), (c), and (d) and adding Subsections |
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(a-1) and (d-1) to read as follows: |
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(a) The court may authorize compensation for a guardian or a |
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temporary guardian serving as a guardian of the person alone from |
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available funds of the ward's estate or other funds available for |
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that purpose. The court may [shall] set the compensation in an |
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amount not exceeding five percent of the ward's gross income. |
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(a-1) In determining whether to authorize compensation for |
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a guardian under this section, the court shall consider the ward's |
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monthly income from all sources and whether the ward receives |
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medical assistance under the state Medicaid program. |
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(b) The guardian or temporary guardian of an estate is |
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entitled to reasonable compensation on application to the court at |
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the time the court approves any annual accounting or final |
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accounting filed by the guardian or temporary guardian under this |
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chapter. A fee of five percent of the gross income of the ward's |
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estate and five percent of all money paid out of the estate, subject |
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to the award of an additional amount under Subsection (c) of this |
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section following a review under Subsection (c)(1) of this section, |
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is considered reasonable under this subsection if the court finds |
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that the guardian or temporary guardian has taken care of and |
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managed the estate in compliance with the standards of this |
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chapter. |
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(c) On application of an interested person or on its own |
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motion, the court may: |
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(1) review and modify the amount of compensation |
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authorized under Subsection (a) or [Subsection] (b) of this section |
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if the court finds that the amount is unreasonably low when |
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considering the services rendered as guardian or temporary |
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guardian; and |
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(2) authorize compensation for the guardian or |
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temporary guardian in an estimated amount the court finds |
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reasonable that is to be paid on a quarterly basis before the |
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guardian or temporary guardian files an annual or final accounting |
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if the court finds that delaying the payment of compensation until |
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the guardian or temporary guardian files an accounting would create |
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a hardship for the guardian or temporary guardian. |
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(d) A finding of unreasonably low compensation may not be |
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established under Subsection (c) of this section solely because the |
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amount of compensation is less than the usual and customary charges |
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of the person or entity serving as guardian or temporary guardian. |
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A court that authorizes payment of estimated quarterly compensation |
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under Subsection (c) of this section may later reduce or eliminate |
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the guardian's or temporary guardian's compensation if, on review |
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of an annual or final accounting or otherwise, the court finds that |
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the guardian or temporary guardian: |
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(1) received compensation in excess of the amount |
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permitted under this section; |
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(2) has not adequately performed the duties required |
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of a guardian or temporary guardian under this chapter; or |
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(3) has been removed for cause. |
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(d-1) If a court reduces or eliminates a guardian's or |
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temporary guardian's compensation as provided by Subsection (d) of |
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this section, the guardian or temporary guardian and the surety on |
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the guardian's or temporary guardian's bond are liable to the |
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guardianship estate for any excess compensation received. |
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SECTION 4. The heading to Section 665B, Texas Probate Code, |
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is amended to read as follows: |
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Sec. 665B. COMPENSATION OF ATTORNEY REPRESENTING APPLICANT |
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[CERTAIN ATTORNEYS]. |
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SECTION 5. Section 665B(a), Texas Probate Code, is amended |
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to read as follows: |
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(a) A court that creates a guardianship or creates a |
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management trust under Section 867 of this code for a ward under |
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this chapter, on request of a person who filed an application to be |
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appointed guardian of the proposed ward, an application [or] for |
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the appointment of another suitable person as guardian of the |
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proposed ward, or an application for the creation of the management |
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trust, may authorize compensation of an attorney who represents the |
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person who filed the application at the application hearing, |
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regardless of whether the person is appointed the ward's guardian |
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or whether a management trust is created, from: |
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(1) available funds of the ward's estate or management |
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trust, if created; or |
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(2) the county treasury if: |
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(A) the ward's estate or, if created, management |
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trust, is insufficient to pay for the services provided by the |
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attorney; and |
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(B) funds in the county treasury are budgeted for |
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that purpose. |
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SECTION 6. Subpart H, Part 2, Chapter XIII, Texas Probate |
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Code, is amended by adding Section 665D to read as follows: |
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Sec. 665D. COMPENSATION AND PAYMENT OF ATTORNEY'S FEES OF |
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ATTORNEY SERVING AS GUARDIAN. (a) Notwithstanding any other |
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provision of this subpart, an attorney who serves as guardian and |
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who also provides legal services in connection with the |
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guardianship is not entitled to compensation for the guardianship |
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services or payment of attorney's fees for the legal services from |
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the ward's estate or other funds available for that purpose unless |
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the attorney files with the court a detailed description of the |
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services performed that identifies which of the services provided |
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were guardianship services and which were legal services. |
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(b) An attorney described by Subsection (a) of this section |
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is not entitled to payment of attorney's fees for guardianship |
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services that are not legal services. |
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(c) The court shall set the compensation of an attorney |
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described by Subsection (a) of this section for the performance of |
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guardianship services in accordance with Section 665 of this code. |
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The court shall set attorney's fees for an attorney described by |
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Subsection (a) of this section for legal services provided in |
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accordance with Sections 665A, 665B, and 666 of this code. |
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SECTION 7. Section 677A, Texas Probate Code, is amended by |
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amending Subsection (g) and adding Subsections (i) and (j) to read |
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as follows: |
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(g) A declaration and affidavit may be in any form adequate |
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to clearly indicate the declarant's intention to designate a |
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guardian for the declarant's child. The following form may, but |
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need not, be used: |
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DECLARATION OF APPOINTMENT OF GUARDIAN FOR MY CHILDREN IN THE EVENT |
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OF MY DEATH OR INCAPACITY |
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I, __________, make this Declaration to appoint as guardian |
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for my child or children, listed as follows, in the event of my |
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death or incapacity: |
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____________________________________________________________ |
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____________________________________________________________ |
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____________________________________________________________ |
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(add blanks as appropriate) |
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I designate __________ to serve as guardian of the person of |
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my (child or children), __________ as first alternate guardian of |
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the person of my (child or children), __________ as second |
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alternate guardian of the person of my (child or children), and |
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__________ as third alternate guardian of the person of my (child or |
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children). |
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I direct that the guardian of the person of my (child or |
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children) serve (with or without) bond. |
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(If applicable) I designate __________ to serve as guardian |
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of the estate of my (child or children), __________ as first |
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alternate guardian of the estate of my (child or children), |
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__________ as second alternate guardian of the estate of my (child |
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or children), and __________ as third alternate guardian of the |
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estate of my (child or children). |
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If any guardian or alternate guardian dies, does not qualify, |
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or resigns, the next named alternate guardian becomes guardian of |
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my (child or children). |
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Signed this __________ day of __________, 20__. |
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______________________________ |
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Declarant |
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____________________________________________________________ |
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Witness Witness |
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SELF-PROVING AFFIDAVIT |
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Before me, the undersigned authority, on this date personally |
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appeared __________, the declarant, and __________ and __________ |
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as witnesses, and all being duly sworn, the declarant said that the |
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above instrument was his or her Declaration of Appointment of |
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Guardian for the Declarant's Children in the Event of Declarant's |
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Death or Incapacity and that the declarant had made and executed it |
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for the purposes expressed in the declaration. The witnesses |
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declared to me that they are each 14 years of age or older, that they |
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saw the declarant sign the declaration, that they signed the |
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declaration as witnesses, and that the declarant appeared to them |
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to be of sound mind. |
| |
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______________________________ |
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Declarant |
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____________________________________________________________ |
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Affiant Affiant |
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Subscribed and sworn to before me by __________, the above |
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named declarant, and ___________________ (names of affiants) |
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affiants, on this ___ day of __________, 20__. |
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___________________________ |
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Notary Public in and for the |
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State of Texas |
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My Commission expires: |
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___________________________ |
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(i) As an alternative to the self-proving affidavit |
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authorized by Subsection (g) of this section, a declaration of |
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appointment of a guardian for the declarant's children in the event |
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of the declarant's death or incapacity may be simultaneously |
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executed, attested, and made self-proved by including the following |
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in substantially the same form and with substantially the same |
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contents: |
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I, _________________________, as declarant, after being duly |
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sworn, declare to the undersigned witnesses and to the undersigned |
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authority that this instrument is my Declaration of Appointment of |
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Guardian for My Children in the Event of My Death or Incapacity, and |
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that I have made and executed it for the purposes expressed in the |
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declaration. I now sign this declaration in the presence of the |
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attesting witnesses and the undersigned authority on this ____ day |
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of ________, 20__. |
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_____________________________ |
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Declarant |
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The undersigned, _____________________ and |
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___________________, each being 14 years of age or older, after |
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being duly sworn, declare to the declarant and to the undersigned |
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authority that the declarant declared to us that this instrument is |
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the declarant's Declaration of Appointment of Guardian for the |
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Declarant's Children in the Event of Declarant's Death or |
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Incapacity and that the declarant executed it for the purposes |
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expressed in the declaration. The declarant then signed this |
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declaration and we believe the declarant to be of sound mind. We now |
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sign our names as attesting witnesses on this _____ day of |
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___________, 20___. |
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_____________________________ |
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Witness |
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_____________________________ |
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Witness |
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Subscribed and sworn to before me by the above named |
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declarant, and affiants, this ____ day of __________________, 20__. |
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___________________________________________ |
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Notary Public in and for the State of Texas |
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My Commission Expires:________________ |
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(j) A declaration that is executed as provided by Subsection |
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(i) of this section is considered self-proved to the same extent a |
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declaration executed with a self-proving affidavit under |
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Subsection (g) of this section is considered self-proved. |
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SECTION 8. Section 679, Texas Probate Code, is amended by |
|
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amending Subsection (i) and adding Subsections (k) and (l) to read |
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as follows: |
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(i) A declaration and affidavit may be in any form adequate |
|
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to clearly indicate the declarant's intention to designate a |
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guardian. The following form may, but need not, be used: |
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DECLARATION OF GUARDIAN IN THE EVENT OF LATER INCAPACITY OR NEED OF |
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GUARDIAN |
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I, __________, make this Declaration of Guardian, to operate |
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if the need for a guardian for me later arises. |
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1. I designate __________ to serve as guardian of my person, |
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__________ as first alternate guardian of my person, __________ as |
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second alternate guardian of my person, and __________ as third |
|
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alternate guardian of my person. |
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2. I designate __________ to serve as guardian of my estate, |
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__________ as first alternate guardian of my estate, __________ as |
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second alternate guardian of my estate, and __________ as third |
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alternate guardian of my estate. |
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3. If any guardian or alternate guardian dies, does not |
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qualify, or resigns, the next named alternate guardian becomes my |
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guardian. |
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4. I expressly disqualify the following persons from serving |
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as guardian of my person: __________, __________, and __________. |
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5. I expressly disqualify the following persons from serving |
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as guardian of my estate: __________, __________, and __________. |
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Signed this ___ day of __________, 20__. |
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______________________________ |
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Declarant |
| |
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____________________________________________________________ |
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Witness Witness |
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SELF-PROVING AFFIDAVIT |
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Before me, the undersigned authority, on this date personally |
|
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appeared __________, the declarant, and ____________ and |
|
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____________ as witnesses, and all being duly sworn, the declarant |
|
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said that the above instrument was his or her Declaration of |
|
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Guardian and that the declarant had made and executed it for the |
|
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purposes expressed in the declaration. The witnesses declared to |
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me that they are each 14 years of age or older, that they saw the |
|
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declarant sign the declaration, that they signed the declaration as |
|
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witnesses, and that the declarant appeared to them to be of sound |
|
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mind. |
| |
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______________________________ |
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Declarant |
| |
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____________________________________________________________ |
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Affiant Affiant |
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Subscribed and sworn to before me by the above named |
|
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declarant and affiants on this ____ day of __________, 20__. |
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___________________________ |
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Notary Public in and for the |
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State of Texas |
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My Commission expires: |
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___________________________ |
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(k) As an alternative to the self-proving affidavit |
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|
authorized by Subsection (i) of this section, a Declaration of |
|
|
Guardian in the Event of Later Incapacity or Need of Guardian may be |
|
|
simultaneously executed, attested, and made self-proved by |
|
|
including the following in substantially the same form and with |
|
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substantially the same contents: |
|
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I, _________________________, as declarant, after being duly |
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sworn, declare to the undersigned witnesses and to the undersigned |
|
|
authority that this instrument is my Declaration of Guardian in the |
|
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Event of Later Incapacity or Need of Guardian, and that I have made |
|
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and executed it for the purposes expressed in the declaration. I now |
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sign this declaration in the presence of the attesting witnesses |
|
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and the undersigned authority on this ____ day of ________, 20__. |
|
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_____________________________ |
|
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Declarant |
|
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The undersigned, _____________________ and |
|
|
___________________, each being 14 years of age or older, after |
|
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being duly sworn, declare to the declarant and to the undersigned |
|
|
authority that the declarant declared to us that this instrument is |
|
|
the declarant's Declaration of Guardian in the Event of Later |
|
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Incapacity or Need of Guardian and that the declarant executed it |
|
|
for the purposes expressed in the declaration. The declarant then |
|
|
signed this declaration and we believe the declarant to be of sound |
|
|
mind. We now sign our names as attesting witnesses on this _____ day |
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of ___________, 20___. |
| |
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_____________________________ |
|
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Witness |
| |
|
|
_____________________________ |
|
|
Witness |
|
|
Subscribed and sworn to before me by the above named |
|
|
declarant, and affiants, this ____ day of __________________, 20__. |
|
|
___________________________________________ |
|
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Notary Public in and for the State of Texas |
|
|
My Commission Expires:___________________ |
|
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(l) A declaration that is executed as provided by Subsection |
|
|
(k) of this section is considered self-proved to the same extent a |
|
|
declaration executed with a self-proving affidavit under |
|
|
Subsection (i) of this section is considered self-proved. |
|
|
SECTION 9. Section 767(b), Texas Probate Code, is amended |
|
|
to read as follows: |
|
|
(b) Notwithstanding Subsection (a)(4) of this section, a |
|
|
guardian of the person of a ward has the power to personally |
|
|
transport the ward or to direct the ward's transport by emergency |
|
|
medical services or other means to an inpatient mental health |
|
|
facility for a preliminary examination in accordance with |
|
|
Subchapters A and C, Chapter 573, Health and Safety Code. |
|
|
SECTION 10. Section 867(b-3), Texas Probate Code, is |
|
|
amended to read as follows: |
|
|
(b-3) The court shall conduct a hearing to determine |
|
|
incapacity under Subsection (b-1) of this section using the same |
|
|
procedures and evidentiary standards as required in a hearing for |
|
|
the appointment of a guardian for a proposed ward. The court shall |
|
|
appoint an attorney ad litem and, if necessary, may appoint a |
|
|
guardian ad litem, to represent the interests of the alleged |
|
|
incapacitated person in the proceeding. |
|
|
SECTION 11. Section 868(a), Texas Probate Code, is amended |
|
|
to read as follows: |
|
|
(a) Except as provided by Subsection (d) of this section, a |
|
|
trust created under Section 867 of this code must provide that: |
|
|
(1) the ward or incapacitated person is the sole |
|
|
beneficiary of the trust; |
|
|
(2) the trustee may disburse an amount of the trust's |
|
|
principal or income as the trustee determines is necessary to |
|
|
expend for the health, education, support, or maintenance of the |
|
|
ward or incapacitated person; |
|
|
(3) the income of the trust that the trustee does not |
|
|
disburse under Subdivision (2) of this subsection must be added to |
|
|
the principal of the trust; |
|
|
(4) if the trustee is a corporate fiduciary, the |
|
|
trustee serves without giving a bond; and |
|
|
(5) the trustee, [on annual application to the court
|
|
|
and] subject to the court's approval, is entitled to receive |
|
|
reasonable compensation for services that the trustee provided to |
|
|
the ward or incapacitated person as the ward's or incapacitated |
|
|
person's trustee that is: |
|
|
(A) to be paid from the trust's income, |
|
|
principal, or both; and |
|
|
(B) determined, paid, reduced, and eliminated in |
|
|
the same manner as compensation of a guardian of an estate under |
|
|
Section 665 of this code. |
|
|
SECTION 12. Section 875(k), Texas Probate Code, is amended |
|
|
to read as follows: |
|
|
(k) 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, the |
|
|
court, on the court's own motion or on the motion of any interested |
|
|
party, may appoint a [new] temporary guardian or grant a temporary |
|
|
restraining order under Rule 680, Texas Rules of Civil Procedure, |
|
|
or both, without issuing additional citation if the court finds |
|
|
that the appointment or the issuance of the order is necessary to |
|
|
protect the proposed ward or the proposed ward's estate. |
|
|
SECTION 13. Section 607(e), Texas Probate Code, is |
|
|
repealed. |
|
|
SECTION 14. (a) The changes in law made by this Act apply |
|
|
to: |
|
|
(1) a guardianship created before, on, or after the |
|
|
effective date of this Act; and |
|
|
(2) an application for a guardianship or the creation |
|
|
of a management trust pending on, or filed on or after, the |
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effective date of this Act. |
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(b) Notwithstanding Subsection (a) of this section, |
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Sections 665, 665B, and 868, Texas Probate Code, as amended by this |
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Act, and Section 665D, Texas Probate Code, as added by this Act, |
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apply to the payment, reduction, or elimination of compensation for |
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services performed on or after the effective date of this Act. |
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Payment, reduction, or elimination of compensation for services |
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performed before the effective date of this Act is governed by the |
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law in effect on the date the services were performed, and the |
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former law is continued in effect for that purpose. |
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(c) Section 608, Texas Probate Code, as amended by this Act, |
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and Section 610A, Texas Probate Code, as added by this Act, apply |
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only to actions commenced on or after the effective date of this |
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Act. An action that is commenced before the effective date of this |
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Act is governed by the law applicable to the action immediately |
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before the effective date of this Act, and that law is continued in |
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effect for that purpose. |
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SECTION 15. This Act takes effect September 1, 2009. |