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|
|
A BILL TO BE ENTITLED
|
|
AN ACT
|
|
relating to guardianships and alternatives to guardianship for |
|
persons who have physical disabilities or who are incapacitated. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
SECTION 1. Section 601(25), Texas Probate Code, is amended |
|
to read as follows: |
|
(25) The term ["Proceedings in guardianship,"
|
|
"guardianship matter," "guardianship matters,"] "guardianship |
|
proceeding" means [proceeding," and "proceedings for guardianship"
|
|
are synonymous and include] a matter or proceeding related |
|
[relating] to a guardianship or any other matter covered |
|
[addressed] by this chapter, including: |
|
(A) the appointment of a guardian of a minor or |
|
other incapacitated person, including an incapacitated adult for |
|
whom another court obtained continuing, exclusive jurisdiction in a |
|
suit affecting the parent-child relationship when the person was a |
|
child; |
|
(B) an application, petition, or motion |
|
regarding guardianship or an alternative to guardianship under this |
|
chapter; |
|
(C) a mental health action; and |
|
(D) an application, petition, or motion |
|
regarding a trust created under Section 867 of this code. |
|
SECTION 2. Section 605, Texas Probate Code, is amended to |
|
read as follows: |
|
Sec. 605. GENERAL PROBATE [COUNTY] COURT JURISDICTION IN |
|
GUARDIANSHIP PROCEEDINGS; APPEALS. (a) All guardianship |
|
proceedings must be filed and heard in a court exercising original |
|
probate jurisdiction. The court exercising original probate |
|
jurisdiction also has jurisdiction of all matters related to the |
|
guardianship proceeding as specified in Section 606A of this code |
|
for that type of court. |
|
(b) A probate court may exercise pendent and ancillary |
|
jurisdiction as necessary to promote judicial efficiency and |
|
economy. |
|
(c) A final order issued by a probate court is appealable to |
|
the court of appeals. [The county court has the general
|
|
jurisdiction of a probate court. The county court shall appoint
|
|
guardians of minors and other incapacitated persons, grant letters
|
|
of guardianship, settle accounts of guardians, and transact all
|
|
business appertaining to estates subject to guardianship,
|
|
including the settlement, partition, and distribution of the
|
|
estates. The county court may also enter other orders as may be
|
|
authorized under this chapter.] |
|
SECTION 3. Subpart A, Part 2, Chapter XIII, Texas Probate |
|
Code, is amended by adding Sections 606A, 607A, 607B, 607C, 607D, |
|
and 607E to read as follows: |
|
Sec. 606A. MATTERS RELATED TO GUARDIANSHIP PROCEEDING. |
|
(a) For purposes of this code, in a county in which there is no |
|
statutory probate court, a matter related to a guardianship |
|
proceeding includes: |
|
(1) the granting of letters of guardianship; |
|
(2) the settling of an account of a guardian and all |
|
other matters relating to the settlement, partition, or |
|
distribution of a ward's estate; |
|
(3) a claim brought by or against a guardianship |
|
estate; |
|
(4) an action for trial of title to real property that |
|
is guardianship estate property, including the enforcement of a |
|
lien against the property; |
|
(5) an action for trial of the right of property that |
|
is guardianship estate property; |
|
(6) after a guardianship of the estate of a ward is |
|
required to be settled as provided by Section 745 of this code: |
|
(A) an action brought by or on behalf of the |
|
former ward against a former guardian of the ward for alleged |
|
misconduct arising from the performance of the person's duties as |
|
guardian; |
|
(B) an action calling on the surety of a guardian |
|
or former guardian to perform in place of the guardian or former |
|
guardian, which may include the award of a judgment against the |
|
guardian or former guardian in favor of the surety; |
|
(C) an action against a former guardian of the |
|
former ward that is brought by a surety that is called on to perform |
|
in place of the former guardian; |
|
(D) a claim for the payment of compensation, |
|
expenses, and court costs, and any other matter authorized under |
|
Subpart H, Part 2, of this chapter; and |
|
(E) a matter related to an authorization made or |
|
duty performed by a guardian under Subpart C, Part 4, of this |
|
chapter; and |
|
(7) the appointment of a trustee for a trust created |
|
under Section 867 of this code, the settling of an account of the |
|
trustee, and all other matters relating to the trust. |
|
(b) For purposes of this code, in a county in which there is |
|
a statutory probate court, a matter related to a guardianship |
|
proceeding includes: |
|
(1) all matters and actions described in Subsection |
|
(a) of this section; |
|
(2) a suit, action, or application filed against or on |
|
behalf of a guardianship or a trustee of a trust created under |
|
Section 867 of this code; and |
|
(3) a cause of action in which a guardian in a |
|
guardianship pending in the statutory probate court is a party. |
|
Sec. 607A. ORIGINAL JURISDICTION FOR GUARDIANSHIP |
|
PROCEEDINGS. (a) In a county in which there is no statutory |
|
probate court or county court at law exercising original probate |
|
jurisdiction, the county court has original jurisdiction of |
|
guardianship proceedings. |
|
(b) In a county in which there is no statutory probate |
|
court, but in which there is a county court at law exercising |
|
original probate jurisdiction, the county court at law exercising |
|
original probate jurisdiction and the county court have concurrent |
|
original jurisdiction of guardianship proceedings, unless |
|
otherwise provided by law. The judge of a county court may hear |
|
guardianship proceedings while sitting for the judge of any other |
|
county court. |
|
(c) In a county in which there is a statutory probate court, |
|
the statutory probate court has original jurisdiction of |
|
guardianship proceedings. |
|
Sec. 607B. JURISDICTION OF CONTESTED GUARDIANSHIP |
|
PROCEEDING IN COUNTY WITH NO STATUTORY PROBATE COURT OR COUNTY |
|
COURT AT LAW. (a) In a county in which there is no statutory |
|
probate court or county court at law exercising original probate |
|
jurisdiction, when a matter in a guardianship proceeding is |
|
contested, the judge of the county court may, on the judge's own |
|
motion, or shall, on the motion of any party to the proceeding, |
|
according to the motion: |
|
(1) request the assignment of a statutory probate |
|
court judge to hear the contested matter, as provided by Section |
|
25.0022, Government Code; or |
|
(2) transfer the contested matter to the district |
|
court, which may then hear the contested matter as if originally |
|
filed in the district court. |
|
(b) If a party to a guardianship proceeding files a motion |
|
for the assignment of a statutory probate court judge to hear a |
|
contested matter in the proceeding before the judge of the county |
|
court transfers the contested matter to a district court under this |
|
section, the county judge shall grant the motion for the assignment |
|
of a statutory probate court judge and may not transfer the matter |
|
to the district court unless the party withdraws the motion. |
|
(c) If a judge of a county court requests the assignment of a |
|
statutory probate court judge to hear a contested matter in a |
|
guardianship proceeding on the judge's own motion or on the motion |
|
of a party to the proceeding as provided by this section, the judge |
|
may request that the statutory probate court judge be assigned to |
|
the entire proceeding on the judge's own motion or on the motion of |
|
a party. |
|
(d) A party to a guardianship proceeding may file a motion |
|
for the assignment of a statutory probate court judge under this |
|
section before a matter in the proceeding becomes contested, and |
|
the motion is given effect as a motion for assignment of a statutory |
|
probate court judge under Subsection (a) of this section if the |
|
matter later becomes contested. |
|
(e) Notwithstanding any other law, a transfer of a contested |
|
matter in a guardianship proceeding to a district court under any |
|
authority other than the authority provided by this section: |
|
(1) is disregarded for purposes of this section; and |
|
(2) does not defeat the right of a party to the |
|
proceeding to have the matter assigned to a statutory probate court |
|
judge in accordance with this section. |
|
(f) A statutory probate court judge assigned to a contested |
|
matter in a guardianship proceeding or to the entire proceeding |
|
under this section has the jurisdiction and authority granted to a |
|
statutory probate court by this code. A statutory probate court |
|
judge assigned to hear only the contested matter in a guardianship |
|
proceeding shall, on resolution of the matter, including any appeal |
|
of the matter, return the matter to the county court for further |
|
proceedings not inconsistent with the orders of the statutory |
|
probate court or court of appeals, as applicable. A statutory |
|
probate court judge assigned to the entire guardianship proceeding |
|
as provided by Subsection (c) of this section shall, on resolution |
|
of the contested matter in the proceeding, including any appeal of |
|
the matter, return the entire proceeding to the county court for |
|
further proceedings not inconsistent with the orders of the |
|
statutory probate court or court of appeals, as applicable. |
|
(g) A district court to which a contested matter in a |
|
guardianship proceeding is transferred under this section has the |
|
jurisdiction and authority granted to a statutory probate court by |
|
this code. On resolution of a contested matter transferred to the |
|
district court under this section, including any appeal of the |
|
matter, the district court shall return the matter to the county |
|
court for further proceedings not inconsistent with the orders of |
|
the district court or court of appeals, as applicable. |
|
(h) If only the contested matter in a guardianship |
|
proceeding is assigned to a statutory probate court judge under |
|
this section, or if the contested matter in a guardianship |
|
proceeding is transferred to a district court under this section, |
|
the county court shall continue to exercise jurisdiction over the |
|
management of the guardianship, other than a contested matter, |
|
until final disposition of the contested matter is made in |
|
accordance with this section. Any matter related to a guardianship |
|
proceeding in which a contested matter is transferred to a district |
|
court may be brought in the district court. The district court in |
|
which a matter related to the proceeding is filed may, on the |
|
court's own motion or on the motion of any party, find that the |
|
matter is not a contested matter and transfer the matter to the |
|
county court with jurisdiction of the management of the |
|
guardianship. |
|
(i) If a contested matter in a guardianship proceeding is |
|
transferred to a district court under this section, the district |
|
court has jurisdiction of any contested matter in the proceeding |
|
that is subsequently filed, and the county court shall transfer |
|
those contested matters to the district court. If a statutory |
|
probate court judge is assigned under this section to hear a |
|
contested matter in a guardianship proceeding, the statutory |
|
probate court judge shall be assigned to hear any contested matter |
|
in the proceeding that is subsequently filed. |
|
(j) The clerk of a district court to which a contested |
|
matter in a guardianship proceeding is transferred under this |
|
section may perform in relation to the transferred matter any |
|
function a county clerk may perform with respect to that type of |
|
matter. |
|
Sec. 607C. JURISDICTION OF CONTESTED GUARDIANSHIP |
|
PROCEEDING IN COUNTY WITH NO STATUTORY PROBATE COURT. (a) In a |
|
county in which there is no statutory probate court, but in which |
|
there is a county court at law exercising original probate |
|
jurisdiction, when a matter in a guardianship proceeding is |
|
contested, the judge of the county court may, on the judge's own |
|
motion, or shall, on the motion of any party to the proceeding, |
|
transfer the contested matter to the county court at law. In |
|
addition, the judge of the county court, on the judge's own motion |
|
or on the motion of a party to the proceeding, may transfer the |
|
entire proceeding to the county court at law. |
|
(b) A county court at law to which a proceeding is |
|
transferred under this section may hear the proceeding as if |
|
originally filed in that court. If only a contested matter in the |
|
proceeding is transferred, on the resolution of the matter, the |
|
matter shall be returned to the county court for further |
|
proceedings not inconsistent with the orders of the county court at |
|
law. |
|
Sec. 607D. EXCLUSIVE JURISDICTION OF GUARDIANSHIP |
|
PROCEEDING IN COUNTY WITH STATUTORY PROBATE COURT. (a) In a |
|
county in which there is a statutory probate court, the statutory |
|
probate court has exclusive jurisdiction of all guardianship |
|
proceedings, regardless of whether contested or uncontested. |
|
(b) A cause of action related to a guardianship proceeding |
|
of which the statutory probate court has exclusive jurisdiction as |
|
provided by Subsection (a) of this section must be brought in the |
|
statutory probate court unless the jurisdiction of the statutory |
|
probate court is concurrent with the jurisdiction of a district |
|
court as provided by Section 607E of this code or with the |
|
jurisdiction of any other court. |
|
Sec. 607E. CONCURRENT JURISDICTION WITH DISTRICT COURT. A |
|
statutory probate court has concurrent jurisdiction with the |
|
district court in: |
|
(1) a personal injury, survival, or wrongful death |
|
action by or against a person in the person's capacity as a |
|
guardian; and |
|
(2) an action involving a guardian in which each other |
|
party aligned with the guardian is not an interested person in the |
|
guardianship. |
|
SECTION 4. Section 608, Texas Probate Code, is amended to |
|
read as follows: |
|
Sec. 608. TRANSFER OF [GUARDIANSHIP] PROCEEDING BY |
|
STATUTORY PROBATE COURT. (a) A judge of a statutory probate court, |
|
on the motion of a party to the action or of a person interested in |
|
the [a] guardianship, may: |
|
(1) transfer to the judge's court from a district, |
|
county, or statutory court a cause of action that is a matter |
|
related [appertaining to or incident] to a guardianship proceeding |
|
[estate that is] pending in the statutory probate court, including |
|
[or] a cause of action that is a matter related [relating] to a |
|
guardianship proceeding pending in the statutory probate court and |
|
in which the [a] guardian, ward, or proposed ward in the [a
|
|
guardianship] pending guardianship proceeding [in the statutory
|
|
probate court] is a party; and |
|
(2) [may] consolidate the transferred cause of action |
|
with the guardianship proceeding to which it relates and any other |
|
proceedings in the statutory probate court that are related |
|
[relating] to the guardianship proceeding [estate]. |
|
(b) Notwithstanding any other provision of this chapter, |
|
the proper venue for an action by or against a guardian, ward, or |
|
proposed ward for personal injury, death, or property damages is |
|
determined under Section 15.007, Civil Practice and Remedies Code. |
|
SECTION 5. The heading to Section 609, Texas Probate Code, |
|
is amended to read as follows: |
|
Sec. 609. TRANSFER OF CONTESTED GUARDIANSHIP OF THE PERSON |
|
OF A MINOR. |
|
SECTION 6. Section 609(a), Texas Probate Code, is amended |
|
to read as follows: |
|
(a) If an interested person contests an application for the |
|
appointment of a guardian of the person of a minor or an interested |
|
person seeks the removal of a guardian of the person of a minor, the |
|
judge, on the judge's own motion, may transfer all matters related |
|
[relating] to the guardianship proceeding [of the person of the
|
|
minor] to a court of competent jurisdiction in which a suit |
|
affecting the parent-child relationship under the Family Code is |
|
pending. |
|
SECTION 7. Section 611(a), Texas Probate Code, is amended |
|
to read as follows: |
|
(a) If two or more courts have concurrent venue of a |
|
guardianship proceeding [matter], the court in which an application |
|
for a guardianship proceeding is initially filed has and retains |
|
jurisdiction of the proceeding [guardianship matter]. A proceeding |
|
is considered commenced by the filing of an application alleging |
|
facts sufficient to confer venue, and the proceeding initially |
|
legally commenced extends to all of the property of the |
|
guardianship estate. |
|
SECTION 8. Section 621(a), Texas Probate Code, is amended |
|
to read as follows: |
|
(a) An application for a guardianship proceeding or[,] a |
|
complaint, petition, or other paper permitted or required by law to |
|
be filed in the court in a guardianship proceeding [matters] shall |
|
be filed with the county clerk of the proper county. |
|
SECTION 9. Sections 622(a) and (b), Texas Probate Code, are |
|
amended to read as follows: |
|
(a) The laws regulating costs in ordinary civil cases apply |
|
to a guardianship proceeding [matter] unless otherwise expressly |
|
provided by this chapter. |
|
(b) When a person other than the guardian, attorney ad |
|
litem, or guardian ad litem files an application, complaint, or |
|
opposition in relation to a guardianship proceeding [matter], the |
|
clerk may require the person to give security for the probable costs |
|
of the [guardianship] proceeding before filing. A person |
|
interested in the guardianship or in the welfare of the ward, or an |
|
officer of the court, at any time before the trial of an |
|
application, complaint, or opposition in relation to a guardianship |
|
proceeding [matter], may obtain from the court, on written motion, |
|
an order requiring the person who filed the application, complaint, |
|
or opposition to give security for the probable costs of the |
|
proceeding. The rules governing civil suits in the county court |
|
relating to this subject control in these cases. |
|
SECTION 10. Section 629, Texas Probate Code, is amended to |
|
read as follows: |
|
Sec. 629. CALL OF THE DOCKETS. The judge of the court in |
|
which a guardianship proceeding is pending, as the judge |
|
determines, shall call guardianship proceedings [matters] in their |
|
regular order on both the guardianship and claim dockets and shall |
|
make necessary orders. |
|
SECTION 11. Section 630, Texas Probate Code, is amended to |
|
read as follows: |
|
Sec. 630. CLERK MAY SET HEARINGS. If the [county] judge is |
|
absent from the county seat or is on vacation, disqualified, ill, or |
|
deceased and is unable to designate the time and place for hearing a |
|
guardianship proceeding [matter] pending in the judge's court, the |
|
county clerk of the county in which the proceeding [matter] is |
|
pending may designate the time and place for hearing, entering the |
|
setting on the judge's docket and certifying on the docket the |
|
reason that the judge is not acting to set the hearing. If a |
|
qualified judge is not present for the hearing, after service of the |
|
notices and citations required by law with reference to the time and |
|
place of hearing has been perfected, the hearing is automatically |
|
continued from day to day until a qualified judge is present to hear |
|
and make a determination in the proceeding [determine the matter]. |
|
SECTION 12. The heading to Section 632, Texas Probate Code, |
|
is amended to read as follows: |
|
Sec. 632. ISSUANCE, CONTENTS, SERVICE, AND RETURN OF |
|
CITATION, NOTICES, AND WRITS IN GUARDIANSHIP PROCEEDINGS |
|
[MATTERS]. |
|
SECTION 13. Sections 632(a), (b), and (h), Texas Probate |
|
Code, are amended to read as follows: |
|
(a) A person does not need to be cited or otherwise given |
|
notice in a guardianship proceeding [matter] except in situations |
|
in which this chapter expressly provides for citation or the giving |
|
of notice. If this chapter does not expressly provide for citation |
|
or the issuance or return of notice in a guardianship proceeding |
|
[matter], the court may require that notice be given. If the court |
|
requires that notice be given, the court shall prescribe the form |
|
and manner of service and return of service. |
|
(b) Unless a court order is required by a provision of this |
|
chapter, the county clerk shall issue without a court order |
|
necessary citations, writs, and process in guardianship |
|
proceedings [matters] and all notices not required to be issued by |
|
guardians. |
|
(h) In a guardianship proceeding [matter] in which citation |
|
or notice is required to be served by posting and issued in |
|
conformity with the applicable provision of this code, the citation |
|
or notice and the service of and return of the citation or notice is |
|
sufficient and valid if a sheriff or constable posts a copy of the |
|
citation or notice at the place or places prescribed by this chapter |
|
on a day that is sufficiently before the return day contained in the |
|
citation or notice for the period of time for which the citation or |
|
notice is required to be posted to elapse before the return day of |
|
the citation or notice. The sufficiency or validity of the citation |
|
or notice or the service of or return of the service of the citation |
|
or notice is not affected by the fact that the sheriff or constable |
|
makes the [his] return on the citation or notice and returns the |
|
citation or notice to the court before the period elapses for which |
|
the citation or notice is required to be posted, even though the |
|
return is made, and the citation or notice is returned to the court, |
|
on the same day it is issued. |
|
SECTION 14. Section 641, Texas Probate Code, is amended to |
|
read as follows: |
|
Sec. 641. DEFECTS IN PLEADING. A court may not invalidate a |
|
pleading in a guardianship proceeding [matter] or an order based on |
|
the pleading based on a defect of form or substance in the pleading, |
|
unless the defect has been timely objected to and called to the |
|
attention of the court in which the proceeding was or is pending. |
|
SECTION 15. Section 646, Texas Probate Code, is amended by |
|
amending Subsection (e) and adding Subsection (f) to read as |
|
follows: |
|
(e) The term of appointment of an attorney ad litem |
|
appointed under this section expires, without a court order, on the |
|
date the court [either] appoints a guardian in accordance with |
|
Section 693 of this code, appoints a successor guardian, or denies |
|
the application for appointment of a guardian, unless the court |
|
determines that the continued appointment of the attorney ad litem |
|
is in the ward's best interest. |
|
(f) The term of appointment of an attorney ad litem |
|
appointed under this section continues after the court appoints a |
|
temporary guardian under Section 875 of this code unless a court |
|
order provides for the termination or expiration of the attorney ad |
|
litem's appointment. |
|
SECTION 16. Section 650, Texas Probate Code, is amended to |
|
read as follows: |
|
Sec. 650. DECREES. A decision, order, decree, or judgment |
|
of the court in a guardianship proceeding [matter] must be rendered |
|
in open court, except in a case in which it is otherwise expressly |
|
provided. |
|
SECTION 17. Section 653, Texas Probate Code, is amended to |
|
read as follows: |
|
Sec. 653. EXECUTION. An execution in a guardianship |
|
proceeding [matter] shall be directed "To any sheriff or any |
|
constable within the State of Texas," made returnable in 60 days, |
|
and attested and signed by the clerk officially under the seal of |
|
the court. A proceeding under an execution in a guardianship |
|
proceeding [matter] is governed so far as applicable by the laws |
|
regulating a proceeding under an execution issued from the district |
|
court. An execution directed to the sheriff or a constable of a |
|
specific county in this state may not be held defective if the |
|
execution was properly executed within the county by the officer to |
|
whom the direction for execution was given. |
|
SECTION 18. Section 666, Texas Probate Code, is amended to |
|
read as follows: |
|
Sec. 666. EXPENSES ALLOWED. A guardian is entitled to be |
|
reimbursed from the guardianship estate for all necessary and |
|
reasonable expenses incurred in performing any duty as a guardian, |
|
including reimbursement for the payment of reasonable attorney's |
|
fees necessarily incurred by the guardian in connection with the |
|
management of the estate or any other [guardianship] matter in the |
|
guardianship. |
|
SECTION 19. Section 669(a), Texas Probate Code, is amended |
|
to read as follows: |
|
(a) Except as provided by Subsection (b) of this section, in |
|
a guardianship proceeding [matter], the cost of the proceeding, |
|
including the cost of the guardian ad litem or court visitor, shall |
|
be paid out of the guardianship estate, or, if the estate is |
|
insufficient to pay for the cost of the proceeding, the cost of the |
|
proceeding shall be paid out of the county treasury, and the |
|
judgment of the court shall be issued accordingly. |
|
SECTION 20. Sections 682A(a-1) and (a-2), Texas Probate |
|
Code, are amended to read as follows: |
|
(a-1) Notwithstanding any other law, if the applicant who |
|
files an application under Subsection (a) of this section or |
|
Section 682 of this code is a person who was appointed conservator |
|
of a disabled child and the proceeding is a guardianship proceeding |
|
described by Section 601(25)(A) of this code in which the proposed |
|
ward is the incapacitated adult with respect to whom another court |
|
obtained continuing, exclusive jurisdiction in a suit affecting the |
|
parent-child relationship when the person was a child [for whom a
|
|
court obtains jurisdiction under Section 606(k) of this code], the |
|
applicant may present to the court a written letter or certificate |
|
that meets the requirements of Section 687(a) of this code. |
|
(a-2) If, on receipt of the letter or certificate described |
|
by Subsection (a-1) of this section, the court is able to make the |
|
findings required by Section 684 of this code, the court, |
|
notwithstanding Section 677 of this code, shall appoint the |
|
conservator as guardian without conducting a hearing and shall, to |
|
the extent possible, preserve the terms of possession and access to |
|
the ward that applied before the court obtained jurisdiction of the |
|
guardianship proceeding [under Section 606(k) of this code]. |
|
SECTION 21. Section 687(c), Texas Probate Code, is amended |
|
to read as follows: |
|
(c) If the basis of the proposed ward's alleged incapacity |
|
is mental retardation, the court may not grant an application to |
|
create a guardianship for the proposed ward unless the applicant |
|
presents to the court a written letter or certificate that: |
|
(1) [a written letter or certificate that:
|
|
[(A)] complies with Subsection (a) of this |
|
section; [and
|
|
[(B)
states that the physician has made a
|
|
determination of mental retardation in accordance with Section
|
|
593.005, Health and Safety Code;] or |
|
(2) shows that [both]: |
|
(A) [written documentation showing that,] not |
|
earlier than 24 months before the date of the hearing, the proposed |
|
ward has been examined by a physician or psychologist licensed in |
|
this state or certified by the Department of Aging and Disability |
|
Services to perform the examination, in accordance with rules of |
|
the executive commissioner of the Health and Human Services |
|
Commission governing examinations of that kind; and |
|
(B) the physician's or psychologist's written |
|
findings and recommendations to the court include [, including] a |
|
statement as to whether the physician or psychologist has made a |
|
determination of mental retardation in accordance with Section |
|
593.005, Health and Safety Code. |
|
SECTION 22. Section 729(c), Texas Probate Code, is amended |
|
to read as follows: |
|
(c) An inventory made under this section must specify: |
|
(1) what portion of the property is separate property |
|
and what portion is community property; and |
|
(2) if [. If] any of the property is owned in common |
|
with other persons, the interest owned by the ward [shall be shown
|
|
in the inventory, together with the names and relationship, if
|
|
known, of co-owners]. |
|
SECTION 23. Section 730, Texas Probate Code, is amended to |
|
read as follows: |
|
Sec. 730. LIST OF CLAIMS. The guardian shall make and |
|
attach to an inventory under Section 729 of this code a full and |
|
complete list of all claims due or owing to the ward that must |
|
state: |
|
(1) the name of each person indebted to the ward and |
|
the address of the person if known; |
|
(2) the nature of the debt, whether it is a note, bill, |
|
bond, or other written obligation or whether it is an account or |
|
verbal contract; |
|
(3) the date of the indebtedness and the date when the |
|
debt is or was due; |
|
(4) the amount of each claim, the rate of interest on |
|
each claim, and time for which the claim bears interest; and |
|
(5) what portion of the claim is held in common with |
|
others[, including the names and the relationships of other part
|
|
owners] and the interest of the estate in the claim. |
|
SECTION 24. Sections 745(a) and (d), Texas Probate Code, |
|
are amended to read as follows: |
|
(a) A guardianship of the estate of a ward shall be settled |
|
when: |
|
(1) a minor ward dies or becomes an adult by becoming |
|
18 years of age, or by removal of disabilities of minority according |
|
to the law of this state, or by marriage; |
|
(2) an incapacitated ward dies, or is decreed as |
|
provided by law to have been restored to full legal capacity; |
|
(3) the spouse of a married ward has qualified as |
|
survivor in community and the ward owns no separate property; |
|
(4) the estate of a ward becomes exhausted; |
|
(5) the foreseeable income accruing to a ward or to the |
|
ward's [his] estate is so negligible that maintaining the |
|
guardianship in force would be burdensome; |
|
(6) all of the assets of the estate have been placed in |
|
a management trust under Subpart N[, Part 4,] of this part, or have |
|
been transferred to a pooled trust subaccount in accordance with a |
|
court order issued as provided by Subpart I, Part 5, of this |
|
chapter, [code] and the court determines that a guardianship of |
|
[for] the ward's estate [ward] is no longer necessary; or |
|
(7) the court determines for any other reason that a |
|
guardianship for the ward is no longer necessary. |
|
(d) In the settlement of a guardianship, the court may |
|
appoint an attorney ad litem to represent the interests of the ward, |
|
and may allow the attorney ad litem reasonable compensation to be |
|
taxed as costs [for services provided by the attorney out of the
|
|
ward's estate]. |
|
SECTION 25. Section 770(c), Texas Probate Code, is amended |
|
to read as follows: |
|
(c) A guardian of a person younger than 18 [16] years of age |
|
may voluntarily admit the ward [an incapacitated person] to a |
|
public or private inpatient psychiatric facility for care and |
|
treatment. |
|
SECTION 26. The heading to Subpart M, Part 4, Chapter XIII, |
|
Texas Probate Code, is amended to read as follows: |
|
SUBPART M. TAX-MOTIVATED, [TAX MOTIVATED AND] CHARITABLE, AND |
|
OTHER GIFTS |
|
SECTION 27. The heading to Section 865, Texas Probate Code, |
|
is amended to read as follows: |
|
Sec. 865. POWER TO MAKE CERTAIN [TAX-MOTIVATED] GIFTS AND |
|
TRANSFERS. |
|
SECTION 28. Sections 865(a) and (b), Texas Probate Code, |
|
are amended to read as follows: |
|
(a) On application of the guardian of the estate or any |
|
interested person [party] and after the posting of notice, the |
|
court, after hearing, may enter an order that authorizes the |
|
guardian to apply the principal or income of the ward's estate that |
|
is not required for the support of the ward or the ward's family |
|
during the ward's lifetime toward the establishment of an estate |
|
plan for the purpose of minimizing income, estate, inheritance, or |
|
other taxes payable out of the ward's estate, or to transfer a |
|
portion of the ward's estate as necessary to qualify the ward for |
|
government benefits and only to the extent allowed by applicable |
|
state or federal laws, including rules, regarding those benefits, |
|
on a showing that the ward will probably remain incapacitated |
|
during the ward's lifetime. On the ward's behalf, the court may |
|
authorize the guardian to make gifts or transfers described by this |
|
subsection, outright or in trust, of the ward's [personal] property |
|
[or real estate] to or for the benefit of: |
|
(1) an organization to which charitable contributions |
|
may be made under the Internal Revenue Code and in which it is shown |
|
the ward would reasonably have an interest; |
|
(2) the ward's spouse, descendant, or other person |
|
related to the ward by blood or marriage who are identifiable at the |
|
time of the order; |
|
(3) a devisee under the ward's last validly executed |
|
will, trust, or other beneficial instrument if the instrument |
|
exists; and |
|
(4) a person serving as guardian of the ward if the |
|
person is eligible under either Subdivision (2) or (3) of this |
|
subsection. |
|
(b) The person making an application to the court under this |
|
section shall outline the proposed estate or other transfer plan |
|
and set forth all the benefits that are to be derived from the |
|
[estate] plan. The application must indicate that the planned |
|
disposition is consistent with the ward's intentions if the ward's |
|
intentions can be ascertained. If the ward's intentions cannot be |
|
ascertained, the ward will be presumed to favor reduction in the |
|
incidence of the various forms of taxation, the qualification for |
|
government benefits, and the partial distribution of the ward's |
|
estate as provided by this section. |
|
SECTION 29. Sections 867(a-1), (b), (c), and (f), Texas |
|
Probate Code, are amended to read as follows: |
|
(a-1) The following persons may apply for the creation of a |
|
trust under this section: |
|
(1) the guardian of the estate of a ward; |
|
(2) the guardian of the person of a ward; |
|
(3) the guardian of both the person of and estate of a |
|
ward; |
|
(4) an attorney ad litem or guardian ad litem |
|
appointed to represent a ward or the ward's interests; |
|
(5) a person interested in the welfare of an alleged |
|
incapacitated person who does not have a guardian [of the estate]; |
|
[or] |
|
(6) an attorney ad litem or guardian ad litem |
|
appointed to represent an alleged incapacitated person who does not |
|
have a guardian; or |
|
(7) a person who has only a physical disability [that
|
|
person's interests]. |
|
(b) On application by an appropriate person as provided by |
|
Subsection (a-1) of this section and subject to Subsection (b-1) of |
|
this section, if applicable, the court with jurisdiction over the |
|
proceedings [guardianship] may enter an order that creates [for the
|
|
ward's benefit] a trust for the management of the [guardianship] |
|
funds of the person with respect to whom the application is filed if |
|
the court finds that the creation of the trust is in the person's |
|
[ward's] best interests. |
|
(c) Subject to Subsection (d) of this section, if the court |
|
finds that it is in the [ward's or incapacitated person's] best |
|
interests of the person for whom a trust is created under this |
|
section, the court may appoint a person or entity that meets the |
|
requirements of Subsection (e) of this section to serve as trustee |
|
of the trust instead of appointing a financial institution to serve |
|
in that capacity. |
|
(f) If a trust is created for a person [ward], the order |
|
shall direct any [a] person or entity holding property belonging to |
|
the person for whom the trust is created [ward] or to which that |
|
person [the ward] is entitled to deliver all or part of the property |
|
to a person or corporate fiduciary appointed by the court as trustee |
|
of the trust. [If a trust is created for an incapacitated person who
|
|
does not have a guardian, the order shall direct a person holding
|
|
property belonging to the incapacitated person or to which the
|
|
incapacitated person is entitled to deliver all or part of the
|
|
property to the corporate fiduciary or other person appointed as
|
|
trustee of the trust.] The order shall include terms, conditions, |
|
and limitations placed on the trust. The court may [shall] |
|
maintain the trust under the same cause number as the guardianship |
|
proceeding, if the person for whom the trust is created is a ward or |
|
proposed ward [applicable]. |
|
SECTION 30. Sections 868(a), (b), and (d), Texas Probate |
|
Code, are 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, or person who |
|
has only a physical disability 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 for whom the trust is created; |
|
(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, subject to the court's approval, is |
|
entitled to receive reasonable compensation for services that the |
|
trustee provided to the [ward or incapacitated] person for whom the |
|
trust is created 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. |
|
(b) The trust may provide that a trustee make a |
|
distribution, payment, use, or application of trust funds for the |
|
health, education, support, or maintenance of the [ward or
|
|
incapacitated] person for whom the trust is created or of another |
|
person whom the [ward or incapacitated] person for whom the trust is |
|
created is legally obligated to support, as necessary and without |
|
the intervention of a guardian or other representative of the ward |
|
or of a representative of the incapacitated person or person who has |
|
only a physical disability, to: |
|
(1) the ward's guardian; |
|
(2) a person who has physical custody of the [ward or
|
|
incapacitated] person for whom the trust is created or another |
|
person whom the [ward or incapacitated] person for whom the trust is |
|
created is legally obligated to support; or |
|
(3) a person providing a good or service to the [ward
|
|
or incapacitated] person for whom the trust is created or another |
|
person whom the [ward or incapacitated] person for whom the trust is |
|
created is legally obligated to support. |
|
(d) When creating or modifying a trust, the court may omit |
|
or modify terms required by Subsection (a)(1) or (2) of this section |
|
only if the court determines that the omission or modification: |
|
(1) is necessary and appropriate for the [ward or
|
|
incapacitated] person for whom the trust is created to be eligible |
|
to receive public benefits or assistance under a state or federal |
|
program that is not otherwise available to the [ward or
|
|
incapacitated] person; and |
|
(2) is in the [ward's or incapacitated person's] best |
|
interests of the person for whom the trust is created. |
|
SECTION 31. Section 868C(a), Texas Probate Code, is amended |
|
to read as follows: |
|
(a) If the court determines that it is in the [ward's or
|
|
incapacitated person's] best interests of the person for whom a |
|
trust is created under Section 867 of this code, the court may order |
|
the transfer of all property in the [a management] trust [created
|
|
under Section 867 of this code] to a subaccount of a pooled trust |
|
established in accordance with Subpart I, Part 5, of this chapter. |
|
The transfer of property from the management trust to the |
|
subaccount of the pooled trust shall be treated as a continuation of |
|
the management trust and may not be treated as the establishment of |
|
a new trust for purposes of 42 U.S.C. Section 1396p(d)(4)(A) or (C) |
|
or otherwise for purposes of the management trust beneficiary's |
|
[ward's or incapacitated person's] eligibility for medical |
|
assistance under Chapter 32, Human Resources Code. |
|
SECTION 32. Section 869(b), Texas Probate Code, is amended |
|
to read as follows: |
|
(b) The following may not revoke the trust: |
|
(1) the ward for whom the trust is created or the |
|
guardian of the ward's estate; |
|
(2) [or] the incapacitated person for whom the trust |
|
is created; or |
|
(3) the person who has only a physical disability for |
|
whom the trust is created[, as applicable, may not revoke the
|
|
trust]. |
|
SECTION 33. Section 870, Texas Probate Code, is amended to |
|
read as follows: |
|
Sec. 870. TERMINATION OF TRUST. (a) If the [ward or
|
|
incapacitated] person for whom a trust is created under Section 867 |
|
of this code is a minor, the trust terminates: |
|
(1) on the person's death [of the ward or incapacitated
|
|
person] or the [ward's or incapacitated] person's 18th birthday, |
|
whichever is earlier; or |
|
(2) on the date provided by court order, which may not |
|
be later than the [ward's or incapacitated] person's 25th birthday. |
|
(b) If the [ward or incapacitated] person for whom a trust |
|
is created under Section 867 of this code is not a minor, the trust |
|
terminates: |
|
(1) according to the terms of the trust; |
|
(2) on the date the court determines that continuing |
|
the trust is no longer in the [ward's or incapacitated] person's |
|
best interests, subject to Section 868C(b) of this code; [,] or |
|
(3) on the person's death [of the ward or incapacitated
|
|
person]. |
|
SECTION 34. Subpart N, Part 4, Chapter XIII, Texas Probate |
|
Code, is amended by adding Section 870A to read as follows: |
|
Sec. 870A. INITIAL ACCOUNTING BY CERTAIN TRUSTEES REQUIRED. |
|
(a) This section applies only to a trustee of a trust created under |
|
Section 867 of this code for a person for whom a guardianship |
|
proceeding is pending on the date the trust is created. |
|
(b) Not later than the 30th day after the date a trustee to |
|
which this section applies receives property into the trust, the |
|
trustee shall file with the court in which the guardianship |
|
proceeding is pending a report describing all property held in the |
|
trust on the date of the report and specifying the value of the |
|
property on that date. |
|
SECTION 35. Section 871, Texas Probate Code, is amended by |
|
amending Subsection (a) and adding Subsection (d) to read as |
|
follows: |
|
(a) Except as provided by Subsection (d) of this section, |
|
the [The] trustee shall prepare and file with the court an annual |
|
accounting of transactions in the trust in the same manner and form |
|
that is required of a guardian under this chapter. |
|
(d) The court may not require a trustee of a trust created |
|
for a person who has only a physical disability to prepare and file |
|
with the court the annual accounting as described by Subsection (a) |
|
of this section. |
|
SECTION 36. Section 873, Texas Probate Code, is amended to |
|
read as follows: |
|
Sec. 873. DISTRIBUTION OF TRUST PROPERTY. (a) Unless |
|
otherwise provided by the court and except as provided by |
|
Subsection (b) of this section, the trustee shall: |
|
(1) prepare a final account in the same form and manner |
|
that is required of a guardian under Section 749 of this code; and |
|
(2) on court approval, distribute the principal or any |
|
undistributed income of the trust: |
|
(A) to the ward or incapacitated person when the |
|
trust terminates on its own terms; |
|
(B) to the successor trustee on appointment of a |
|
successor trustee; or |
|
(C) to the representative of the deceased ward's |
|
or incapacitated person's estate on the ward's or incapacitated |
|
person's death. |
|
(b) The court may not require a trustee of a trust created |
|
for a person who has only a physical disability to prepare and file |
|
with the court a final account as described by Subsection (a)(1) of |
|
this section. The trustee shall distribute the principal and any |
|
undistributed income of the trust in the manner provided by |
|
Subsection (a)(2) of this section for a trust the beneficiary of |
|
which is a ward or incapacitated person. |
|
SECTION 37. Section 910(1), Texas Probate Code, is amended |
|
to read as follows: |
|
(1) "Beneficiary" means a minor or other incapacitated |
|
person, an alleged incapacitated person, or a disabled person who |
|
is not an [, or any other] incapacitated person for whom a |
|
subaccount is established. |
|
SECTION 38. Section 911, Texas Probate Code, is amended to |
|
read as follows: |
|
Sec. 911. APPLICATION. The following persons [A person
|
|
interested in the welfare of a minor, a disabled person, or any
|
|
other incapacitated person] may apply to the court for the |
|
establishment of a subaccount for the benefit of a [the] minor[,
|
|
disabled person,] or other incapacitated person, an alleged |
|
incapacitated person, or a disabled person who is not an |
|
incapacitated person: |
|
(1) the guardian of the incapacitated person; |
|
(2) a person who has filed an application for the |
|
appointment of a guardian for the alleged incapacitated person; |
|
(3) an attorney ad litem or guardian ad litem |
|
appointed to represent: |
|
(A) the incapacitated person who is a ward or |
|
that person's interests; or |
|
(B) the alleged incapacitated person who does not |
|
have a guardian; or |
|
(4) the disabled person [as the beneficiary]. |
|
SECTION 39. Section 25.0022(i), Government Code, is amended |
|
to read as follows: |
|
(i) A judge assigned under this section has the |
|
jurisdiction, powers, and duties given by Sections 4A, 4C, 4F, 4G, |
|
4H, 5B, 605, 607A, 607B, 607D, 607E [606, 607], and 608, Texas |
|
Probate Code, to statutory probate court judges by general law. |
|
SECTION 40. Section 25.1132(c), Government Code, is amended |
|
to read as follows: |
|
(c) A county court at law in Hood County has concurrent |
|
jurisdiction with the district court in: |
|
(1) civil cases in which the matter in controversy |
|
exceeds $500 but does not exceed $250,000, excluding interest; |
|
(2) family law cases and related proceedings; |
|
(3) contested probate matters under Section 4D(a), |
|
Texas Probate Code; and |
|
(4) contested [guardianship] matters in guardianship |
|
proceedings under Section 607B(a) [606(b)], Texas Probate Code. |
|
SECTION 41. Notwithstanding the transfer of Sections 606 |
|
and 607, Texas Probate Code, to the Estates Code and redesignation |
|
as Sections 606 and 607 of that code effective January 1, 2014, by |
|
Section 5, Chapter 680 (H.B. 2502), Acts of the 81st Legislature, |
|
Regular Session, 2009, Sections 606 and 607, Texas Probate Code, |
|
are repealed. |
|
SECTION 42. (a) Except as otherwise provided by this |
|
section, 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 pending on, or |
|
filed on or after, the effective date of this Act. |
|
(b) Sections 605, 608, and 609, Texas Probate Code, as |
|
amended by this Act, and Sections 606A, 607A, 607B, 607C, 607D, and |
|
607E, Texas Probate Code, as added by this Act, apply only to an |
|
action filed or a proceeding commenced on or after the effective |
|
date of this Act. An action filed or proceeding commenced before |
|
the effective date of this Act is governed by the law in effect on |
|
the date the action was filed or the proceeding was commenced, and |
|
the former law is continued in effect for that purpose. |
|
(c) Sections 867, 868, 868C, 869, 870, 871, and 873, Texas |
|
Probate Code, as amended by this Act, and Section 870A, Texas |
|
Probate Code, as added by this Act, apply only to an application for |
|
the creation, modification, or termination of a management trust |
|
under Subpart N, Part 4, Chapter XIII, Texas Probate Code, that is |
|
filed on or after the effective date of this Act. An application |
|
described by this subsection 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. |
|
(d) Sections 910 and 911, Texas Probate Code, as amended by |
|
this Act, apply only to an application for the creation of a pooled |
|
trust subaccount under Subpart I, Part 5, Chapter XIII, Texas |
|
Probate Code, that is filed on or after the effective date of this |
|
Act. An application described by this subsection 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 43. This Act takes effect September 1, 2011. |