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A BILL TO BE ENTITLED
|
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AN ACT
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relating to guardianships, including the assessment and payment of |
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attorney's fees and other court costs in guardianships, and to |
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court-created management trusts for persons who have physical |
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disabilities or who are incapacitated. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 1051.253(c), Estates Code, as effective |
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January 1, 2014, is amended to read as follows: |
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(c) At the expiration of the 10-day period prescribed by |
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Subsection (a): |
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(1) [commission may issue for taking] the depositions |
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for which the notice was posted may be taken; and |
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(2) the judge may file cross-interrogatories if no |
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person appears. |
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SECTION 2. Chapter 1055, Estates Code, as effective January |
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1, 2014, is amended by adding Subchapter D to read as follows: |
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SUBCHAPTER D. MEDIATION |
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Sec. 1055.151. MEDIATION OF CONTESTED GUARDIANSHIP |
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PROCEEDING. (a) On the written agreement of the parties or on the |
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court's own motion, the court may refer a contested guardianship |
|
proceeding to mediation. |
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(b) A mediated settlement agreement is binding on the |
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parties if the agreement: |
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(1) provides, in a prominently displayed statement |
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that is in boldfaced type, in capital letters, or underlined, that |
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the agreement is not subject to revocation by the parties; |
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(2) is signed by each party to the agreement; and |
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(3) is signed by the party's attorney, if any, who is |
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present at the time the agreement is signed. |
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(c) If a mediated settlement agreement meets the |
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requirements of this section, a party is entitled to judgment on the |
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mediated settlement agreement notwithstanding Rule 11, Texas Rules |
|
of Civil Procedure, or another rule or law. |
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(d) Notwithstanding Subsections (b) and (c), a court may |
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decline to enter a judgment on a mediated settlement agreement if |
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the court finds that the agreement is not in the ward's or proposed |
|
ward's best interests. |
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SECTION 3. Section 1102.005(b), Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
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(b) After examining the [ward's or] proposed ward's assets |
|
and determining that the [ward or] proposed ward is unable to pay |
|
for services provided by the guardian ad litem, the court may |
|
authorize compensation from the county treasury. |
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SECTION 4. Sections 1155.052(a) and (c), Estates Code, as |
|
effective January 1, 2014, are amended to read as follows: |
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(a) Notwithstanding any other provision of this chapter [or
|
|
Section 665B], an attorney who serves as guardian and who also |
|
provides legal services in connection with the guardianship is not |
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entitled to compensation for the guardianship services or payment |
|
of attorney's fees for the legal services from the ward's estate or |
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other funds available for that purpose unless the attorney files |
|
with the court a detailed description of the services performed |
|
that identifies which of the services provided were guardianship |
|
services and which were legal services. |
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(c) The court shall set the compensation of an attorney |
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described by Subsection (a) for the performance of guardianship |
|
services in accordance with Subchapter A. The court shall set |
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attorney's fees for an attorney described by Subsection (a) for |
|
legal services provided in accordance with Sections 1155.054 |
|
[1155.051], 1155.101, and 1155.151 [665B]. |
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SECTION 5. Notwithstanding the transfer of Section 665B, |
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Texas Probate Code, as amended by Chapters 314 (H.B. 587) and 930 |
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(H.B. 3080), Acts of the 81st Legislature, Regular Session, 2009, |
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to the Estates Code and redesignation as Section 665B of that code |
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effective January 1, 2014, by Section 3.01(e), Chapter 823 (H.B. |
|
2759), Acts of the 82nd Legislature, Regular Session, 2011, Section |
|
665B, Texas Probate Code, is transferred to Subchapter B, Chapter |
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1155, Estates Code, redesignated as Section 1155.054, Estates Code, |
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and reenacted and amended to read as follows: |
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Sec. 1155.054 [665B]. PAYMENT OF ATTORNEY'S FEES TO |
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CERTAIN ATTORNEYS. (a) A court that creates a guardianship or |
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creates a management trust under Chapter 1301 [Section 867 of this
|
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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 the payment of reasonable and |
|
necessary attorney's fees, as determined by the court, in amounts |
|
the court considers equitable and just, to 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[:
|
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[(1)] available funds of the ward's estate or |
|
management trust, if created, subject to Subsections (b) and (d). |
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(b) The court may authorize amounts that otherwise would be |
|
paid from the ward's estate or the management trust as provided by |
|
Subsection (a) to instead be paid from the county treasury,[; or
|
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[(2)] subject to Subsection (e), [(c) of this section,
|
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the county treasury] if: |
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(1) [(A)] the ward's estate or[, if created,] |
|
management trust[,] is insufficient to pay [for] the amounts |
|
[services provided by the attorney]; and |
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(2) [(B)] funds in the county treasury are budgeted |
|
for that purpose. |
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(c) [(b)] The court may not authorize attorney's fees under |
|
this section unless the court finds that the applicant acted in good |
|
faith and for just cause in the filing and prosecution of the |
|
application. |
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(d) If the court finds that a party in a guardianship |
|
proceeding acted in bad faith or without just cause in prosecuting |
|
or objecting to an application in the proceeding, the court may |
|
require the party to reimburse the ward's estate for all or part of |
|
the attorney's fees awarded under this section and shall issue |
|
judgment against the party and in favor of the estate for the amount |
|
of attorney's fees required to be reimbursed to the estate. |
|
(e) [(c)] The court may authorize the payment of attorney's |
|
fees from the county treasury under Subsection (b) [(a) of this
|
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section] only if the court is satisfied that the attorney to whom |
|
the fees will be paid has not received, and is not seeking, payment |
|
for the services described by that subsection from any other |
|
source. |
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SECTION 6. Section 1155.151, Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
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Sec. 1155.151. COSTS IN GUARDIANSHIP [COST OF] PROCEEDING |
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GENERALLY [IN GUARDIANSHIP MATTER]. (a) In a guardianship |
|
proceeding [Except as provided by Subsection (b)], the court costs |
|
[cost] of the proceeding [in a guardianship matter], including the |
|
cost of the guardians [guardian] ad litem, attorneys ad litem, [or] |
|
court visitor, mental health professionals, and interpreters |
|
appointed under this title, shall be set in an amount the court |
|
considers equitable and just and, except as provided by Subsection |
|
(c), shall be paid out of the guardianship estate, or [the cost of
|
|
the proceeding shall be paid out of] the county treasury if the |
|
estate is insufficient to pay the cost, and the court shall issue |
|
the judgment accordingly. |
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(b) The costs attributable to the services of a person |
|
described by Subsection (a) shall be paid under this section at any |
|
time after the commencement of the proceeding as ordered by the |
|
court. |
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(c) If the court finds that a party in a guardianship |
|
proceeding acted in bad faith or without just cause in prosecuting |
|
or objecting to an application in the proceeding, the court may |
|
order the party to pay all or part of the costs of the proceeding. |
|
If the party found to be acting in bad faith or without just cause |
|
was required to provide security for the probable costs of the |
|
proceeding under Section 1053.052, the court shall first apply the |
|
amount provided as security as payment for costs ordered by the |
|
court under this subsection. If the amount provided as security is |
|
insufficient to pay the entire amount ordered by the court, the |
|
court shall render judgment in favor of the estate against the party |
|
for the remaining amount. [An applicant for the appointment of a
|
|
guardian under this title shall pay the cost of the proceeding if
|
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the court denies the application based on the recommendation of a
|
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court investigator.] |
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SECTION 7. Subchapter C, Chapter 1163, Estates Code, as |
|
effective January 1, 2014, is amended by adding Section 1163.1011 |
|
to read as follows: |
|
Sec. 1163.1011. USE OF UNSWORN DECLARATION FOR ELECTRONIC |
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FILING OF ANNUAL REPORT. (a) A guardian of the person who files the |
|
annual report required by Section 1163.101 electronically with the |
|
court may use an unsworn declaration made as provided by this |
|
section instead of a written sworn declaration or affidavit |
|
required by Section 1163.101. |
|
(b) An unsworn declaration authorized by this section must |
|
be: |
|
(1) in writing; and |
|
(2) subscribed by the person making the declaration as |
|
true under penalty of perjury. |
|
(c) The form of an unsworn declaration authorized by this |
|
section must be substantially as follows: |
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I, (insert name of guardian of the person), the guardian of |
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the person for (insert name of ward) in _______ County, Texas, |
|
declare under penalty of perjury that the foregoing is true and |
|
correct. |
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Executed on (insert date) |
|
________________________ |
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(signature) |
|
(d) An unsworn declaration authorized by Section 132.001, |
|
Civil Practice and Remedies Code, may not be used instead of a |
|
written sworn declaration or affidavit required by Section |
|
1163.101. |
|
SECTION 8. Section 1251.013, Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
Sec. 1251.013. COURT COSTS. If the court appoints a |
|
temporary guardian after the hearing required by Section |
|
1251.006(b), all court costs, including attorney's fees, may be |
|
assessed as provided by Sections 1155.054 and [1155.051,] |
|
1155.151[, and 665B]. |
|
SECTION 9. The heading to Section 1301.052, Estates Code, |
|
as effective January 1, 2014, is amended to read as follows: |
|
Sec. 1301.052. VENUE FOR PROCEEDING INVOLVING TRUST FOR AN |
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ALLEGED INCAPACITATED PERSON. |
|
SECTION 10. Section 1301.054, Estates Code, as effective |
|
January 1, 2014, is amended by amending Subsection (c) and adding |
|
Subsection (c-1) to read as follows: |
|
(c) Except as provided by Subsection (c-1), the [The] court |
|
shall appoint an attorney ad litem and, if necessary, may appoint a |
|
guardian ad litem, to represent the interests of the alleged |
|
incapacitated person in the hearing to determine incapacity under |
|
Subsection (a). |
|
(c-1) If the application for the creation of the trust is |
|
filed by a person who has only a physical disability, the court may, |
|
but is not required to, appoint an attorney ad litem or guardian ad |
|
litem to represent the interests of the person in the hearing to |
|
determine incapacity under Subsection (a). |
|
SECTION 11. Section 1301.055, Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
Sec. 1301.055. AUTHORITY OF COURT TO APPOINT GUARDIAN |
|
INSTEAD OF CREATING TRUST. If, after a hearing under Section |
|
1301.054, the court finds that the person for whom the application |
|
was filed is an incapacitated person but that it is not in the |
|
incapacitated person's best interests for the court to create a |
|
trust under this subchapter for the incapacitated person's estate, |
|
the court may appoint a guardian of the person or estate, or both, |
|
for the incapacitated person without commencing a separate |
|
proceeding for that purpose. |
|
SECTION 12. Sections 1301.057(b), (c), and (d), Estates |
|
Code, as effective January 1, 2014, are amended to read as follows: |
|
(b) Except as provided by Subsection (c), the court shall |
|
appoint a financial institution to serve as trustee of a management |
|
trust, other than a management trust created for a person who has |
|
only a physical disability. |
|
(c) The court may appoint a person or entity described by |
|
Subsection (d) to serve as trustee of a management trust created for |
|
a ward or incapacitated person instead of appointing a financial |
|
institution to serve in that capacity if the court finds: |
|
(1) that the appointment is in the best interests of |
|
the ward or incapacitated person for whom the trust is created; and |
|
(2) if the value of the trust's principal is more than |
|
$150,000, that the applicant for the creation of the trust, after |
|
the exercise of due diligence, has been unable to find a financial |
|
institution in the geographic area willing to serve as trustee. |
|
(d) The following are eligible for appointment as trustee of |
|
a management trust created for a ward or incapacitated person under |
|
Subsection (c): |
|
(1) an individual, including an individual who is |
|
certified as a private professional guardian; |
|
(2) a nonprofit corporation qualified to serve as a |
|
guardian; and |
|
(3) a guardianship program. |
|
SECTION 13. Section 1301.058, Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
Sec. 1301.058. BOND REQUIREMENTS FOR TRUSTEES. (a) The |
|
following serve [A trustee of a management trust that is a corporate
|
|
fiduciary serves] without giving a bond in accordance with the |
|
trust terms required by Sections [Section] 1301.101(a)(4) and |
|
(a-1): |
|
(1) a trustee of a management trust that is a corporate |
|
fiduciary; and |
|
(2) any other trustee of a management trust created |
|
for a person who has only a physical disability. |
|
(b) Except as provided by Subsection (a), the [The] court |
|
shall require a person[, other than a corporate fiduciary,] serving |
|
as trustee of a management trust to file with the county clerk a |
|
bond that: |
|
(1) is in an amount equal to the value of the trust's |
|
principal and projected annual income; and |
|
(2) meets the conditions the court determines are |
|
necessary. |
|
SECTION 14. Section 1301.101, Estates Code, as effective |
|
January 1, 2014, is amended to conform to Section 31, Chapter 1085 |
|
(S.B. 1196), Acts of the 82nd Legislature, Regular Session, 2011, |
|
and is further amended to read as follows: |
|
Sec. 1301.101. REQUIRED TERMS. (a) Except as provided by |
|
Subsection (c), a management trust created for a ward or |
|
incapacitated person must provide that: |
|
(1) the ward or incapacitated person [for whom the
|
|
trust is created] 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 spend |
|
for the health, education, maintenance, or support of the [ward or
|
|
incapacitated] person for whom the trust is created; |
|
(3) the trust income that the trustee does not |
|
disburse under Subdivision (2) must be added to the trust |
|
principal; |
|
(4) a trustee that is a corporate fiduciary serves |
|
without giving a bond; and |
|
(5) subject to the court's approval and Subsection |
|
(b), a [the] trustee is entitled to receive reasonable compensation |
|
for services the trustee provides to the [ward or incapacitated] |
|
person for whom the trust is created as the person's trustee. |
|
(a-1) A management trust created for a person who has only a |
|
physical disability must provide that the trustee of the trust: |
|
(1) serves without giving a bond; and |
|
(2) is entitled to receive, without the court's |
|
approval, reasonable compensation for services the trustee |
|
provides to the person as the person's trustee. |
|
(b) A trustee's compensation under Subsection (a)(5) must |
|
be: |
|
(1) paid from the management trust's income, |
|
principal, or both; and |
|
(2) determined, paid, reduced, and eliminated in the |
|
same manner as compensation of a guardian [of an estate] under |
|
Subchapter A, Chapter 1155. |
|
(c) The court creating or modifying a management trust may |
|
omit or modify otherwise applicable terms required by Subsection |
|
(a), (a-1), or (b) [(a)(1) or (2) only] if the court is creating the |
|
trust for a person who has only a physical disability, or 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; or [and] |
|
(2) is in the [ward's or incapacitated person's] best |
|
interests of the person for whom the trust is created. |
|
SECTION 15. Section 1301.102(a), Estates Code, as effective |
|
January 1, 2014, is amended to conform to Section 31, Chapter 1085 |
|
(S.B. 1196), Acts of the 82nd Legislature, Regular Session, 2011, |
|
and is further amended to read as follows: |
|
(a) A management trust created for a ward or incapacitated |
|
person may provide that the trustee make a distribution, payment, |
|
use, or application of trust funds for the health, education, |
|
maintenance, or support 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: |
|
(1) as necessary and without the intervention of: |
|
(A) a guardian or other representative of the |
|
ward; or |
|
(B) a representative of the incapacitated |
|
person; and |
|
(2) to: |
|
(A) the ward's guardian; |
|
(B) a person who has physical custody 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; or |
|
(C) a person providing a good or service to the |
|
[ward or incapacitated] person for whom the trust is created or to |
|
another person whom the [ward or incapacitated] person for whom the |
|
trust is created is legally obligated to support. |
|
SECTION 16. Section 1301.103, Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
Sec. 1301.103. ENFORCEABILITY OF CERTAIN TERMS. A |
|
provision in a management trust created for a ward or incapacitated |
|
person that relieves a trustee from a duty or liability imposed by |
|
this chapter or Subtitle B, Title 9, Property Code, is enforceable |
|
only if: |
|
(1) the provision is limited to specific facts and |
|
circumstances unique to the property of that trust and is not |
|
applicable generally to the trust; and |
|
(2) the court creating or modifying the trust makes a |
|
specific finding that there is clear and convincing evidence that |
|
the inclusion of the provision is in the best interests of the trust |
|
beneficiary. |
|
SECTION 17. Section 1301.154(a), Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
(a) The trustee of a management trust created for a ward |
|
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 of the estate under this title. |
|
SECTION 18. Section 1301.202, Estates Code, as effective |
|
January 1, 2014, is amended by adding Subsection (a-1) to read as |
|
follows: |
|
(a-1) For purposes of a proceeding to determine whether to |
|
transfer property from a management trust to a pooled trust |
|
subaccount, the court may, but is not required to, appoint an |
|
attorney ad litem or guardian ad litem to represent the interests of |
|
a person who has only a physical disability for whom the management |
|
trust was created. |
|
SECTION 19. Section 1155.051, Estates Code, as effective |
|
January 1, 2014, is repealed. |
|
SECTION 20. (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) The changes in law made by this Act to Sections |
|
1301.054, 1301.055, 1301.057(b), (c), and (d), 1301.058, 1301.101, |
|
and 1301.102(a), Estates Code, apply only to an application for the |
|
creation, modification, or termination of a management trust 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. |
|
(c) The changes in law made by this Act to Sections 1301.103 |
|
and 1301.154(a), Estates Code, and by Section 1301.202(a-1), |
|
Estates Code, as added by this Act, apply to a management trust |
|
created before, on, or after the effective date of this Act. |
|
SECTION 21. To the extent of any conflict, this Act prevails |
|
over another Act of the 83rd Legislature, Regular Session, 2013, |
|
relating to nonsubstantive additions to and corrections in enacted |
|
codes. |
|
SECTION 22. This Act takes effect January 1, 2014. |