83R3599 CLG-F
 
  By: Thompson of Harris H.B. No. 2080
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to guardianships, including the assessment and payment of
  attorney's fees and other court costs in guardianships, and to
  court-created management trusts for persons who have physical
  disabilities or who are incapacitated.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 1051.253(c), Estates Code, as effective
  January 1, 2014, is amended to read as follows:
         (c)  At the expiration of the 10-day period prescribed by
  Subsection (a):
               (1)  [commission may issue for taking] the depositions
  for which the notice was posted may be taken; and
               (2)  the judge may file cross-interrogatories if no
  person appears.
         SECTION 2.  Chapter 1055, Estates Code, as effective January
  1, 2014, is amended by adding Subchapter D to read as follows:
  SUBCHAPTER D. MEDIATION
         Sec. 1055.151.  MEDIATION OF CONTESTED GUARDIANSHIP
  PROCEEDING. (a) On the written agreement of the parties or on the
  court's own motion, the court may refer a contested guardianship
  proceeding to mediation.
         (b)  A mediated settlement agreement is binding on the
  parties if the agreement:
               (1)  provides, in a prominently displayed statement
  that is in boldfaced type, in capital letters, or underlined, that
  the agreement is not subject to revocation by the parties;
               (2)  is signed by each party to the agreement; and
               (3)  is signed by the party's attorney, if any, who is
  present at the time the agreement is signed.
         (c)  If a mediated settlement agreement meets the
  requirements of this section, a party is entitled to judgment on the
  mediated settlement agreement notwithstanding Rule 11, Texas Rules
  of Civil Procedure, or another rule or law.
         (d)  Notwithstanding Subsections (b) and (c), a court may
  decline to enter a judgment on a mediated settlement agreement if
  the court finds that the agreement is not in the ward's or proposed
  ward's best interests.
         SECTION 3.  Section 1102.005(b), Estates Code, as effective
  January 1, 2014, is amended to read as follows:
         (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.
         SECTION 4.  Sections 1155.052(a) and (c), Estates Code, as
  effective January 1, 2014, are amended to read as follows:
         (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
  entitled to compensation for the guardianship services or payment
  of attorney's fees for the legal services from the ward's estate or
  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.
         (c)  The court shall set the compensation of an attorney
  described by Subsection (a) for the performance of guardianship
  services in accordance with Subchapter A. The court shall set
  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].
         SECTION 5.  Notwithstanding the transfer of Section 665B,
  Texas Probate Code, as amended by Chapters 314 (H.B. 587) and 930
  (H.B. 3080), Acts of the 81st Legislature, Regular Session, 2009,
  to the Estates Code and redesignation as Section 665B of that code
  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
  1155, Estates Code, redesignated as Section 1155.054, Estates Code,
  and reenacted and amended to read as follows:
         Sec. 1155.054  [665B].  PAYMENT OF ATTORNEY'S FEES TO
  CERTAIN ATTORNEYS. (a)  A court that creates a guardianship or
  creates a management trust under Chapter 1301 [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 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[:
               [(1)]  available funds of the ward's estate or
  management trust, if created, subject to Subsections (b) and (d).
         (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
               [(2)]  subject to Subsection (e), [(c) of this section,
  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.
         (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.
         (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
  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.
         SECTION 6.  Section 1155.151, Estates Code, as effective
  January 1, 2014, is amended to read as follows:
         Sec. 1155.151.  COSTS IN GUARDIANSHIP [COST OF] PROCEEDING
  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.
         (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.
         (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
  the court denies the application based on the recommendation of a
  court investigator.]
         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
  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:
         I, (insert name of guardian of the person), the guardian of
  the person for (insert name of ward) in _______ County, Texas,
  declare under penalty of perjury that the foregoing is true and
  correct.
         Executed on (insert date)
         ________________________
         (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
  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.