82R5539 MTB/CLG-D

By: Lucio III H.B. No. 2744

A BILL TO BE ENTITLED

AN ACT

relating to guardianships, including the functions of the Guardianship Certification Board.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 648A, Texas Probate Code, is amended by adding Subsection (a-1) to read as follows:

(a-1) In investigating the circumstances alleged in the application under Subsection (a) of this section, a court investigator shall meet in person with:

(1) the proposed ward's spouse, if any, each of the proposed ward's parents, if living, and each of the proposed ward's adult siblings and adult children, if any; or

(2) each other relative who is related to the proposed ward within the third degree by consanguinity and who is an adult if the proposed ward's spouse and each of the proposed ward's parents, adult siblings, and adult children are deceased or there is no spouse, parent, adult sibling, or adult child.

SECTION 2. Section 683, Texas Probate Code, is amended by adding Subsection (d) to read as follows:

(d) In investigating a person's conditions and circumstances under Subsection (a) of this section, the appointed guardian ad litem or court investigator shall meet in person with:

(1) the person's spouse, if any, each of the person's parents, if living, and each of the person's adult siblings and adult children, if any; or

(2) each other relative who is related to the person within the third degree by consanguinity and who is an adult if the person's spouse and each of the person's parents, adult siblings, and adult children are deceased or there is no spouse, parent, adult sibling, or adult child.

SECTION 3. Section 685, Texas Probate Code, is amended by adding Subsection (d) to read as follows:

(d) If the proposed ward has a primary caretaker or mental or physical therapist, the proposed ward's attorney must call those persons to testify at the hearing to assist the court in making the findings required by Section 684 of this code.

SECTION 4. Section 695, Texas Probate Code, is amended by adding Subsection (a-1) to read as follows:

(a-1) The court shall appoint a successor guardian under this section in accordance with the order of precedence established under Section 677 of this code.

SECTION 5. Subpart A, Part 3, Chapter XIII, Texas Probate Code, is amended by adding Section 697C to read as follows:

Sec. 697C. POSTING OF GUARDIANSHIP CERTIFICATION BOARD'S CONTACT INFORMATION FOR COMPLAINTS. (a) A private professional guardian for which two or more individuals provide guardianship services on the guardian's behalf shall post the Guardianship Certification Board's contact information for the filing of complaints with the board:

(1) on or near the entrance of the guardian's principal place of business; and

(2) on the guardian's Internet website, if any.

(b) A guardianship program shall post the Guardianship Certification Board's contact information for the filing of complaints with the board:

(1) on or near the entrance of the program's principal office; and

(2) on the guardianship program's Internet website, if any.

(c) The Department of Aging and Disability Services shall post the Guardianship Certification Board's contact information for the filing of complaints with the board:

(1) near the entrance of all department office buildings from which department employees or volunteers provide guardianship services on the department's behalf; and

(2) on the department's Internet website.

SECTION 6. Section 761, Texas Probate Code, is amended by amending Subsections (a), (c), and (f) and adding Subsections (a-1), (b-1), (c-2), and (h) to read as follows:

(a) The court, on its own motion or on motion of any interested person, including the ward, and without notice, may remove any guardian[,] appointed under this chapter[,] who:

(1) neglects to qualify in the manner and time required by law;

(2) fails to return within 30 days after qualification, unless the time is extended by order of the court, an inventory of the property of the guardianship estate and list of claims that have come to the guardian's knowledge;

(3) having been required to give a new bond, fails to do so within the time prescribed;

(4) absents himself or herself from the state for a period of three months at one time without permission of the court, or removes from the state;

(5) cannot be served with notices or other processes because of the fact that:

(A) the guardian's whereabouts are unknown;

(B) the guardian is eluding service; or

(C) the guardian is a nonresident of this state who does not have a resident agent to accept service of process in any guardianship proceeding or other matter relating to the guardianship;

(6) has misapplied, embezzled, or removed from the state, or is about to misapply, embezzle, or remove from the state, all or any part of the property committed to the guardian's care;

(7) has engaged in conduct with respect to the ward that would be considered to be abuse, neglect, or exploitation, as those terms are defined by Section 48.002, Human Resources Code, if engaged in with respect to an elderly or disabled person, as defined by that section [neglected or cruelly treated a ward]; or

(8) has neglected to educate or maintain the ward as liberally as the means of the ward and the condition of the ward's estate permit.

(a-1) In a proceeding to remove a guardian under Subsection (a)(6), (7), or (8) of this section, the court shall appoint a guardian ad litem as provided by Section 645 of this code and an attorney ad litem. The attorney ad litem has the duties prescribed by Section 647 of this code. In the interest of judicial economy, the court may appoint the same person as guardian ad litem and attorney ad litem unless a conflict exists between the interests to be represented by the guardian ad litem and attorney ad litem.

(b-1) The court clerk shall issue notice of an order rendered by the court removing a guardian under Subsection (a)(1), (2), (3), (4), (6), (7), or (8) of this section. The notice must:

(1) state the names of the ward and the removed guardian;

(2) state the date the court signed the order of removal; and

(3) be personally served on the removed guardian.

(c) The court may remove a guardian on its own motion, or on the complaint of an interested person, after the guardian has been cited by personal service to answer at a time and place set in the notice, when:

(1) sufficient grounds appear to support belief that the guardian has misapplied, embezzled, or removed from the state, or that the guardian is about to misapply, embezzle, or remove from the state, all or any part of the property committed to the care of the guardian;

(2) the guardian fails to return any account or report that is required by law to be made;

(3) the guardian fails to obey any proper order of the court having jurisdiction with respect to the performance of the guardian's duties;

(4) the guardian is proved to have been guilty of gross misconduct or mismanagement in the performance of the duties of the guardian;

(5) the guardian becomes incapacitated, or is sentenced to the penitentiary, or from any other cause becomes incapable of properly performing the duties of the guardian's trust;

(6) the guardian has engaged in conduct with respect to the ward that would be considered to be abuse, neglect, or exploitation, as those terms are defined by Section 48.002, Human Resources Code, if engaged in with respect to an elderly or disabled person, as defined by that section [neglects or cruelly treats the ward];

(6-a) the guardian neglects to educate or maintain the ward as liberally as the means of the ward's estate and the ward's ability or condition permit;

(7) the guardian interferes with the ward's progress or participation in programs in the community;

(8) the guardian fails to comply with the requirements of Section 697 of this code;

(9) the court determines that, because of the dissolution of the joint guardians' marriage, the termination of the guardians' joint appointment and the continuation of only one of the joint guardians as the sole guardian is in the best interest of the ward; or

(10) the guardian would be ineligible for appointment as a guardian under Section 681 of this code.

(c-2) In addition to citing the guardian to appear as required by Subsection (c) or (c-1) of this section, the court clerk shall issue a notice stating the names of the ward and the guardian proposed to be removed and the date and location of the hearing on the proposed removal. The sheriff or other officer shall personally serve the notice on the ward's spouse, if any, and each of the ward's parents, if living. The clerk shall mail a copy of the notice by registered or certified mail, return receipt requested, to:

(1) each of the ward's adult siblings and adult children, if any; or

(2) each other relative who is related to the ward within the third degree by consanguinity and who is an adult if the ward's spouse and each of the ward's parents, adult siblings, and adult children are deceased or there is no spouse, parent, adult sibling, or adult child.

(f) If the necessity exists, the court may immediately appoint a successor guardian without citation or notice but may not discharge the person removed as guardian of the estate or release the person or the sureties on the person's bond until final order or judgment is rendered on the final account of the guardian. Subject to an order of the court, a successor guardian has the rights and powers of the removed guardian, except that a successor guardianship created under this subsection following the removal of a guardian under Subsection (a) of this section is considered temporary and remains in effect only for the period until the court renders an order under Section 762A of this code, which may not exceed the period prescribed for a temporary guardianship under Section 875(h) of this code.

(h) An appointment of a successor guardian under Subsection (f) of this section must be made in accordance with the order of precedence established under Section 677 of this code.

SECTION 7. Section 762, Texas Probate Code, is amended to read as follows:

Sec. 762. REINSTATEMENT OF CERTAIN GUARDIANS AFTER REMOVAL UNDER CERTAIN CIRCUMSTANCES. (a) Not later than the 30th [10th] day after the date the court signs the order of removal, a guardian [personal representative] who is removed under Section 761(a)(6) [Subsection (a)(6)] or (7)[, Section 761,] of this code may file an application with the court for a hearing to determine whether the guardian [personal representative] should be reinstated.

(b) On the filing of an application for a hearing under this section, the court clerk shall issue a notice stating that the application for reinstatement was filed, the name of the ward, and the name of the applicant. [The clerk shall issue the notice to the applicant, the ward, a person interested in the welfare of the ward or the ward's estate, and, if applicable, a person who has control of the care and custody of the ward.] The notice must cite all persons interested in the estate or welfare of the ward to appear at the time and place stated in the notice if they wish to contest the application.

(b-1) The sheriff or other officer shall personally serve the citation issued under Subsection (b) of this section on the ward's spouse, if any, and each of the ward's parents, if living. The court clerk shall mail a copy of the citation by registered or certified mail, return receipt requested, to:

(1) each of the ward's adult siblings and adult children, if any; or

(2) each other relative who is related to the ward within the third degree by consanguinity and who is an adult if the ward's spouse and each of the ward's parents, adult siblings, and adult children are deceased or there is no spouse, parent, adult sibling, or adult child.

(c) The court shall hold a hearing on an application for reinstatement under this section as soon as practicable after the application is filed, but not later than the 60th day after the date the court signed the order of removal. If, at the conclusion of the [a] hearing [under this section], the court is satisfied by a preponderance of the evidence that the applicant did not engage in the conduct that directly led to the applicant's removal, the court shall set aside an order appointing a successor guardian [representative], if any, and shall enter an order reinstating the applicant as guardian [personal representative] of the ward or estate.

(d) If the court sets aside the appointment of a successor guardian [representative] under this section, the court may require the successor guardian [representative] to prepare and file, under oath, an accounting of the estate and to detail the disposition the successor has made of the property of the estate.

SECTION 8. Subpart D, Part 4, Chapter XIII, Texas Probate Code, is amended by adding Sections 762A and 762B to read as follows:

Sec. 762A. PERMANENT SUCCESSOR GUARDIAN FOLLOWING REMOVAL. (a) The court shall set a date and location for a hearing regarding the temporary successor guardian appointed under Section 761(f) of this code. The hearing must be set for a date that is on or before the expiration of the period prescribed for a temporary guardianship under Section 875(h) of this code. If the guardian who was removed under Section 761 of this code files an application for reinstatement under Section 762 of this code, the hearings required by this section and Section 762 must be conducted jointly.

(b) The court clerk shall issue a citation stating the date and location of the hearing set under Subsection (a) of this section. The sheriff or other officer shall personally serve the citation on the ward's spouse, if any, and each of the ward's parents, if living. The clerk shall mail a copy of the citation by registered or certified mail, return receipt requested, to:

(1) each of the ward's adult siblings and adult children, if any; or

(2) each other relative who is related to the ward within the third degree by consanguinity and who is an adult if the ward's spouse and each of the ward's parents, adult siblings, and adult children are deceased or there is no spouse, parent, adult sibling, or adult child.

(c) At the hearing, the court that removed the guardian and appointed a temporary successor guardian shall:

(1) if the hearing is conducted jointly with the hearing under Section 762 of this code, render an order under Section 762(c) of this code reinstating the removed guardian and setting aside the order appointing the successor guardian if the court makes the findings required by that section;

(2) convert the temporary successor guardianship to a permanent successor guardianship; or

(3) appoint another person as the permanent successor guardian for the ward.

Sec. 762B. REINSTATEMENT OF CERTAIN FAMILIAL GUARDIANS FOLLOWING APPOINTMENT OF PERMANENT SUCCESSOR GUARDIAN. (a) This section does not apply to reinstatement of a ward's family member or friend who was removed as the ward's guardian under Section 761(a)(6) or (7) or 761(c)(1), (4), (5), (6), or (10) of this code.

(b) At any time after a person required to be certified under Subchapter C, Chapter 111, Government Code, is appointed as a ward's permanent successor guardian under Section 762A of this code, a family member or friend of the ward who was removed as the ward's guardian may file an application with the court to be reinstated as guardian.

(c) On the filing of an application for a hearing under this section, the court clerk shall issue a notice of the filing of the application to the permanent successor guardian and to the persons described by Section 762(b) of this code. The notice must cite all persons interested in the estate or welfare of the ward to appear at the time and place stated in the notice if they wish to contest the application. The hearing must be held as soon as practicable but not later than the 30th day after the date the application is filed.

(d) If, at the conclusion of a hearing under this section, the court is satisfied by a preponderance of the evidence that the former guardian is not disqualified from serving as guardian under Section 681 of this code and the reappointment of the former guardian is in the best interests of the ward, the court may set aside an order appointing the permanent successor guardian and enter an order reinstating the former guardian as the ward's guardian. SECTION 9. Subchapter C, Chapter 111, Government Code, is amended by adding Sections 111.045 and 111.046 to read as follows:

Sec. 111.045. BOARD'S CONTACT INFORMATION FOR COMPLAINTS. (a) The supreme court shall adopt rules requiring guardians certified under this subchapter to provide the board's contact information for the filing of complaints to any person who requests the information.

(b) The board shall post the board's contact information for the filing of complaints on the first page of the board's Internet website.

Sec. 111.046. DISCIPLINARY HEARING. In a hearing for the suspension or revocation of a certificate or provisional certificate or to impose other disciplinary action under this chapter, the board shall allow the person who filed the complaint that is the basis for the hearing to testify.

SECTION 10. (a) Sections 648A(a-1) and 685(d), Texas Probate Code, as added by this Act, apply only to an application for a guardianship filed on or after the effective date of this Act. An application for a guardianship filed before the effective date of this Act is governed by the law in effect on the date the application was filed, and the former law is continued in effect for that purpose.

(b) Section 683(d), Texas Probate Code, as added by this Act, applies only to the appointment of a guardian ad litem or court investigator made on or after the effective date of this Act. The appointment of a guardian ad litem or court investigator made before the effective date of this Act is governed by the law in effect on the date of appointment, and the former law is continued in effect for that purpose.

(c) Section 695(a-1), Texas Probate Code, as added by this Act, applies only to an application for the appointment of a successor guardian filed on or after the effective date of this Act. An application for the appointment of a successor guardian filed before the effective date of this Act is governed by the law in effect on the date the application was filed, and the former law is continued in effect for that purpose.

(d) Sections 761 and 762, Texas Probate Code, as amended by this Act, and Sections 762A and 762B, Texas Probate Code, as added by this Act, apply only to a removal of a guardian ordered by a court on or after the effective date of this Act. A removal of a guardian ordered by a court before the effective date of this Act is governed by the law in effect on the date the order was rendered, and the former law is continued in effect for that purpose.

(e) Section 111.046, Government Code, as added by this Act, applies only to a complaint filed on or after the effective date of this Act. A complaint filed before that date is governed by the law in effect at the time the complaint was filed, and the former law is continued in effect for that purpose.

SECTION 11. This Act takes effect September 1, 2011.