82R2695 KLA-D

By: Nelson S.B. No. 220

A BILL TO BE ENTITLED

AN ACT

relating to guardianships, including the assessment of prospective wards for, and the provision of, guardianship services by the Department of Aging and Disability Services.

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

SECTION 1. Sections 161.109(a) and (b), Human Resources Code, are amended to read as follows:

(a) The department shall have access to all of the records and documents concerning an individual who is referred for guardianship services or to whom guardianship services are provided under this subchapter that are necessary to the performance of the department's duties under this subchapter, including:

(1) client-identifying information; and

(2) medical, psychological, educational, financial, and [or] residential information.

(b) The department is exempt from the payment of a fee otherwise required or authorized by law to obtain a financial or medical record, including a mental health record, from any source [a hospital or health care provider] if the request for a record is related to [made in the course of] an assessment for guardianship services conducted by the department or the provision of guardianship services by the department.

SECTION 2. Section 161.111, Human Resources Code, is amended by adding Subsections (e) and (f) to read as follows:

(e) To the extent consistent with department policies and procedures, the department on request may release confidential information in the record of an individual who is assessed by the department or is a former ward of the department to:

(1) the individual;

(2) the individual's guardian; or

(3) an executor or administrator of the individual's estate.

(f) Before releasing confidential information under Subsection (e), the department shall edit the information to protect the identity of the reporter to the Department of Family and Protective Services and to protect any other individual whose life or safety may be endangered by the release. A release of information under Subsection (e) does not constitute a release for purposes of waiving the confidentiality of the information released.

SECTION 3. Subchapter E, Chapter 161, Human Resources Code, is amended by adding Section 161.114 to read as follows:

Sec. 161.114. USE OF VOLUNTEERS. (a) In this section, "volunteer" has the meaning assigned by Section 161.113.

(b) The department shall encourage the involvement of volunteers in guardianships in which the department serves as guardian of the person or estate, or both. To encourage that involvement, the department shall identify issues and tasks with which a volunteer could assist the department in a guardianship.

SECTION 4. Section 633(d), Texas Probate Code, is amended to read as follows:

(d) The applicant shall mail a copy of the application for guardianship and a notice containing the information required in the citation issued under Subsection (b) of this section by registered or certified mail, return receipt requested, or by any other form of mail that provides proof of delivery, to the following persons, if their whereabouts are known or can be reasonably ascertained:

(1) all adult children of a proposed ward;

(2) all adult siblings of a proposed ward;

(3) the administrator of a nursing home facility or similar facility in which the proposed ward resides;

(4) the operator of a residential facility in which the proposed ward resides;

(5) a person whom the applicant knows to hold a power of attorney signed by the proposed ward;

(6) a person designated to serve as guardian of the proposed ward by a written declaration under Section 679 of this code, if the applicant knows of the existence of the declaration;

(7) a person designated to serve as guardian of the proposed ward in the probated will of the last surviving parent of the ward;

(8) a person designated to serve as guardian of the proposed ward by a written declaration of the proposed ward's last surviving parent, if the declarant is deceased and the applicant knows of the existence of the declaration; and

(9) each person named as another relative within the third degree by consanguinity [next of kin] in the application for guardianship as required by Section 682(10) or (12) of this code 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 5. Section 665A, Texas Probate Code, is amended to read as follows:

Sec. 665A. PAYMENT FOR PROFESSIONAL SERVICES. The court shall order the payment of a fee set by the court as compensation to the attorneys, mental health professionals, and interpreters appointed under this chapter, as applicable, to be taxed as costs in the case. The court may allocate amounts taxed as costs under this section among the parties as the court finds is just and equitable. If after examining the proposed ward's assets the court determines the proposed ward is unable to pay for costs allocated to the proposed ward [services provided by an attorney, a mental health professional, or an interpreter appointed] under this section [chapter, as applicable], the county is responsible for those costs [the cost of those services].

SECTION 6. Section 665B, Texas Probate Code, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows:

(a) A court that creates a guardianship or creates a management trust under Section 867 of this code for a ward under this chapter, on request of a person who filed an application to be appointed guardian of the proposed ward, an application for the appointment of another suitable person as guardian of the proposed ward, or an application for the creation of the management trust, may authorize compensation of an attorney who represents the person who filed the application at the application hearing, regardless of whether the person is appointed the ward's guardian or whether a management trust is created, from:

(1) subject to Subsection (a-1) of this section, the parties to the guardianship proceeding, allocated as the court finds is just and equitable; or

(2) subject to Subsection (a-1) of this section, available funds of the [ward's estate or] management trust, if created.

(a-1) The court may authorize amounts allocated to the ward's estate under Subsection (a)(1) of this section or amounts to be paid from available funds of the management trust as provided by Subsection (a)(2) of this section to instead be paid from [; or

[(2)] the county treasury if:

(1) [(A)] the ward's estate or[, if created,] management trust[,] is insufficient to pay [for] the amounts [services provided by the attorney]; and

(2) [(B)] funds in the county treasury are budgeted for that purpose.

SECTION 7. The heading to Section 669, Texas Probate Code, is amended to read as follows:

Sec. 669. COSTS IN [AGAINST] GUARDIANSHIP PROCEEDING GENERALLY.

SECTION 8. Section 669(a), Texas Probate Code, is amended to read as follows:

(a) Except as provided by Subsection (b) or another provision of this code, in a guardianship matter, the cost of the proceeding, including the cost of the guardian ad litem or court visitor, shall be paid by the parties to the proceeding, including by the ward out of the guardianship estate. The court shall allocate the assessed costs among the parties as the court finds is just and equitable. If [, or, if] the guardianship estate is insufficient to pay for the cost of the proceeding allocated to the ward, that amount [the cost of the proceeding] shall be paid out of the county treasury, and the judgment of the court shall be issued accordingly.

SECTION 9. Section 682, Texas Probate Code, is amended to read as follows:

Sec. 682. APPLICATION; CONTENTS. Any person may commence a proceeding for the appointment of a guardian by filing a written application in a court having jurisdiction and venue. The application must be sworn to by the applicant and state:

(1) the name, sex, date of birth, and address of the proposed ward;

(2) the name, relationship, and address of the person the applicant desires to have appointed as guardian;

(3) whether guardianship of the person or estate, or both, is sought;

(4) the nature and degree of the alleged incapacity, the specific areas of protection and assistance requested, and the limitation or termination of rights requested to be included in the court's order of appointment, including a termination of:

(A) the right of a proposed ward who is 18 years of age or older to vote in a public election; and

(B) the proposed ward's eligibility to hold or obtain a license to operate a motor vehicle under Chapter 521, Transportation Code;

(5) the facts requiring that a guardian be appointed and the interest of the applicant in the appointment;

(6) the nature and description of any guardianship of any kind existing for the proposed ward in any other state;

(7) the name and address of any person or institution having the care and custody of the proposed ward;

(8) the approximate value and description of the proposed ward's property, including any compensation, pension, insurance, or allowance to which the proposed ward may be entitled;

(9) the name and address of any person whom the applicant knows to hold a power of attorney signed by the proposed ward and a description of the type of power of attorney;

(10) if the proposed ward is a minor and if known by the applicant:

(A) the name of each parent of the proposed ward and state the parent's address or that the parent is deceased;

(B) the name and age of each sibling, if any, of the proposed ward and state the sibling's address or that the sibling is deceased; and

(C) if each of the proposed ward's parents and adult siblings are deceased, the names and addresses of the proposed ward's other living relatives who are related to the proposed ward within the third degree by consanguinity and [next of kin] who are adults;

(11) if the proposed ward is a minor, whether the minor was the subject of a legal or conservatorship proceeding within the preceding two-year period and, if so, the court involved, the nature of the proceeding, and the final disposition, if any, of the proceeding;

(12) if the proposed ward is an adult and if known by the applicant:

(A) the name of the proposed ward's spouse, if any, and state the spouse's address or that the spouse is deceased;

(B) the name of each of the proposed ward's parents and state the parent's address or that the parent is deceased;

(C) the name and age of each of the proposed ward's siblings, if any, and state the sibling's address or that the sibling is deceased;

(D) the name and age of each of the proposed ward's children, if any, and state the child's address or that the child is deceased; and

(E) if the proposed ward's spouse and each of the proposed ward's parents, adult siblings, and adult children are deceased, or, if there is no spouse, parent, adult sibling, or adult child, the names and addresses of the proposed ward's other living relatives who are related to the proposed ward within the third degree by consanguinity and [next of kin] who are adults;

(13) facts showing that the court has venue over the proceeding; and

(14) if applicable, that the person whom the applicant desires to have appointed as a guardian is a private professional guardian who is certified under Subchapter C, Chapter 111, Government Code, and has complied with the requirements of Section 697 of this code.

SECTION 10. Section 694A(d), Texas Probate Code, is amended to read as follows:

(d) When an application is filed under this section, citation shall be served on:

(1) the ward's guardian;

(2) [and on] the ward, if the ward is not the applicant; and

(3) the ward's spouse and each of the ward's parents, adult siblings, and adult children, or 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, each other relative who is related to the ward within the third degree by consanguinity and who is an adult.

SECTION 11. Sections 695(a) and (b), Texas Probate Code, are amended to read as follows:

(a) If a guardian dies, resigns, or is removed, the court may, on application and on service of notice as directed by the court, appoint a successor guardian. On a finding that a necessity for the immediate appointment of a successor guardian exists, the court may appoint a successor guardian without citation or notice, subject to Section 761(f) of this code, if applicable.

(b) A successor guardian has the powers and rights and is subject to all of the duties of the preceding guardian, subject to Section 761(f) of this code, if applicable.

SECTION 12. Section 760, Texas Probate Code, is amended by adding Subsection (c-1) to read as follows:

(c-1) The sheriff or other officer shall personally serve the citation issued under Subsection (c) of this section 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.

SECTION 13. Section 761, Texas Probate Code, is amended by amending Subsections (a), (c), and (f) and adding Subsections (a-1), (b-1), and (c-2) 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.

SECTION 14. Section 762, Texas Probate Code, is amended to read as follows:

Sec. 762. REINSTATEMENT 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 15. Subpart D, Part 4, Chapter XIII, Texas Probate Code, is amended by adding Section 762A 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.

SECTION 16. The Department of Aging and Disability Services and the adult protective services division of the Department of Family and Protective Services shall identify and implement modifications to investigations of abuse, neglect, and exploitation conducted under Chapter 48, Human Resources Code, and the provision of protective and guardianship services under Chapters 48 and 161, Human Resources Code, to ensure that the agencies prevent any unnecessary duplication of efforts in performing their respective responsibilities under those chapters.

SECTION 17. (a) Except as otherwise provided by this section, the changes in law made by this Act apply to a guardianship created before, on, or after the effective date of this Act.

(b) Sections 633(d) and 682, Texas Probate Code, as amended 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.

(c) Section 694A(d), Texas Probate Code, as amended by this Act, applies only to an application for the complete restoration of a ward's capacity or modification of a guardianship filed on or after the effective date of this Act. An application for the complete restoration of a ward's capacity or modification of 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.

(d) Section 760(c-1), Texas Probate Code, as added by this Act, applies only with respect to a guardian's resignation filed on or after the effective date of this Act. A guardian's resignation filed before the effective date of this Act is governed by the law in effect on the date the resignation was filed, and the former law is continued in effect for that purpose.

(e) Sections 695, 761, and 762, Texas Probate Code, as amended by this Act, and Section 762A, 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.

SECTION 18. This Act takes effect September 1, 2011.