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COMMITTEE AMENDMENT NO. 1 |
By: West |
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Amend H.B. No. 2080 (house engrossment) as follows: |
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(1) Add the following appropriately numbered SECTION to the |
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bill: |
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SECTION ____. Section 1102.003, Estates Code, as effective |
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January 1, 2014, is amended to read as follows: |
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Sec. 1102.003. INFORMATION LETTER. (a) An interested |
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person who submits an information letter under Section 1102.002(1) |
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about a person believed to be incapacitated must, to the best of the |
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interested person's knowledge [may]: |
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(1) state [include] the person's name, address, |
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telephone number, county of residence, and date of birth; |
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(2) state whether the person's residence is a private |
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residence, health care facility, or other type of residence; |
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(3) describe the relationship between the person and |
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the interested person submitting the letter; |
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(4) state [contain] the names and telephone numbers of |
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any known friends and relatives of the person; |
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(5) state whether a guardian of the person or estate |
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has been appointed in this state for the person; |
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(6) state whether the person has executed a power of |
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attorney and, if so, the designee's name, address, and telephone |
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number; |
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(7) describe any property of the person, including the |
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estimated value of that property; |
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(8) list the amount and source of any monthly income of |
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the person; |
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(9) describe the nature and degree of the person's |
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alleged incapacity; and |
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(10) state whether the person is in imminent danger of |
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serious impairment to the person's physical health, safety, or |
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estate. |
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(b) In addition to the requirements of Subsection (a), if an |
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information letter under that subsection is submitted by an |
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interested person who is a family member of the person believed to |
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be incapacitated, the information letter must: |
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(1) be signed and sworn to before a notary public by |
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the interested person; or |
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(2) include a written declaration signed by the |
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interested person under penalty of perjury that the information |
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contained in the information letter is true to the best of the |
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person's knowledge. |
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(2) On page 27, between lines 24 and 25, insert the |
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following: |
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(d) The changes in law made by this Act to Section 1102.003, |
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Estates Code, apply to a guardianship proceeding that is commenced |
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on or after the effective date of this Act. A guardianship |
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proceeding commenced before that date is governed by the law in |
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effect on the date the proceeding was commenced, and the former law |
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is continued in effect for that purpose. |
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(3) Renumber SECTIONS of the bill appropriately. |
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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; changing the amount of a fee |
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and requiring the collection of a fee. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 1002.002, Estates Code, as effective |
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January 1, 2014, is amended to read as follows: |
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Sec. 1002.002. ATTORNEY AD LITEM. "Attorney ad litem" |
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means an attorney appointed by a court to represent and advocate on |
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behalf of a proposed ward, an incapacitated person, [or] an unborn |
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person, or another person described by Section 1054.007 in a |
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guardianship proceeding. |
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SECTION 2. (a) Notwithstanding the transfer of Section |
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604, Texas Probate Code, to the Estates Code and redesignation as |
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Section 604 of that code effective January 1, 2014, by Section |
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3.01(a), Chapter 823 (H.B. 2759), Acts of the 82nd Legislature, |
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Regular Session, 2011, Section 604, Texas Probate Code, is |
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transferred to Chapter 1022, Estates Code, as added by H.B. 3862 or |
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S.B. 1093, 83rd Legislature, Regular Session, 2013, and |
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redesignated as Subsection (d), Section 1022.002, Estates Code, to |
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read as follows: |
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(d) [Sec. 604. PROCEEDING IN REM.] From the filing of the |
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application for the appointment of a guardian of the estate or |
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person, or both, until the guardianship is settled and closed under |
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this chapter, the administration of the estate of a minor or other |
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incapacitated person is one proceeding for purposes of jurisdiction |
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and is a proceeding in rem. |
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(b) This section takes effect only if H.B. 3862 or S.B. |
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1093, 83rd Legislature, Regular Session, 2013, is enacted and |
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becomes law and adds Section 1022.002, Estates Code. If that |
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legislation does not become law, or becomes law but does not add |
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that section, this section has no effect. |
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SECTION 3. 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 4. Section 1052.051, Estates Code, as effective |
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January 1, 2014, is amended by adding Subsections (d), (e), and (f) |
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to read as follows: |
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(d) Except as provided by Subsection (e), the court clerk |
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shall collect a filing fee, including a deposit for payment to an |
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attorney ad litem, required by law to be paid on the filing of any |
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document described by Subsection (a) from the person or entity |
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filing the document. |
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(e) Notwithstanding any other law requiring the payment of a |
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filing fee for the document, the following are not required to pay a |
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fee on the filing of a document described by Subsection (a): |
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(1) a guardian; |
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(2) an attorney ad litem; |
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(3) a guardian ad litem; |
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(4) a person or entity who files an affidavit of |
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inability to pay under Rule 145, Texas Rules of Civil Procedure; |
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(5) a guardianship program; |
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(6) a governmental entity; and |
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(7) a government agency or nonprofit agency providing |
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guardianship services. |
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(f) After the creation of a guardianship, a person or entity |
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is entitled to be reimbursed for a filing fee described by |
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Subsection (d), other than a deposit for payment to an attorney ad |
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litem, from: |
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(1) the guardianship estate; or |
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(2) the county treasury, if the guardianship estate is |
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insufficient to pay the amount of the filing fee. |
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SECTION 5. Subchapter C, Chapter 1053, Estates Code, as |
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effective January 1, 2014, is amended by adding Sections 1053.104 |
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and 1053.105 to read as follows: |
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Sec. 1053.104. CONFIDENTIALITY OF CERTAIN INFORMATION. (a) |
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On request by a person protected by a protective order issued under |
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Chapter 85, Family Code, or a guardian, attorney ad litem, or member |
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of the family or household of a person protected by an order, the |
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court may exclude from any document filed in a guardianship |
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proceeding: |
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(1) the address and phone number of the person |
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protected by the protective order; |
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(2) the place of employment or business of the person |
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protected by the protective order; |
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(3) the school attended by the person protected by the |
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protective order or the day-care center or other child-care |
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facility the person attends or in which the person resides; and |
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(4) the place at which service of process on the person |
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protected by the protective order was effectuated. |
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(b) On granting a request for confidentiality under this |
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section, the court shall order the clerk to: |
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(1) strike the information described by Subsection (a) |
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from the public records of the court; and |
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(2) maintain a confidential record of the information |
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for use only by the court. |
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Sec. 1053.105. INAPPLICABILITY OF CERTAIN RULES OF CIVIL |
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PROCEDURE. The following do not apply to guardianship proceedings: |
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(1) Rules 47(c) and 169, Texas Rules of Civil |
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Procedure; and |
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(2) the portions of Rule 190.2, Texas Rules of Civil |
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Procedure, concerning expedited actions under Rule 169, Texas Rules |
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of Civil Procedure. |
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SECTION 6. Subchapter A, Chapter 1054, Estates Code, as |
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effective January 1, 2014, is amended by adding Section 1054.007 to |
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read as follows: |
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Sec. 1054.007. ATTORNEYS AD LITEM. (a) Except in a |
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situation in which this title requires the appointment to represent |
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the interests of the person, a court may appoint an attorney ad |
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litem in any guardianship proceeding to represent the interests of: |
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(1) an incapacitated person or another person who has |
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a legal disability; |
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(2) a proposed ward; |
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(3) a nonresident; |
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(4) an unborn or unascertained person; or |
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(5) an unknown or missing potential heir. |
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(b) An attorney ad litem appointed under this section is |
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entitled to reasonable compensation for services provided in the |
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amount set by the court, to be taxed as costs in the proceeding. |
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SECTION 7. 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 |
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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 |
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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 |
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ward's best interests. |
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SECTION 8. Subchapter A, Chapter 1101, Estates Code, as |
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effective January 1, 2014, is amended by adding Section 1101.002 to |
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read as follows: |
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Sec. 1101.002. CONTENTS OF APPLICATION; CONFIDENTIALITY OF |
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CERTAIN ADDRESSES. An application filed under Section 1101.001 may |
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omit the address of a person named in the application if: |
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(1) the application states that the person is |
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protected by a protective order issued under Chapter 85, Family |
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Code; |
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(2) a copy of the protective order is attached to the |
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application as an exhibit; |
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(3) the application states the county in which the |
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person resides; |
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(4) the application indicates the place where notice |
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to or the issuance and service of citation on the person may be made |
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or sent; and |
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(5) the application is accompanied by a request for an |
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order under Section 1051.201 specifying the manner of issuance, |
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service, and return of citation or notice on the person. |
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SECTION 9. Section 1101.151, Estates Code, as effective |
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January 1, 2014, is amended by amending Subsection (b) and adding |
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Subsection (c) to read as follows: |
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(b) An order appointing a guardian under this section must |
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contain findings of fact and specify: |
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(1) the information required by Section 1101.153(a); |
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(2) that the guardian has full authority over the |
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incapacitated person; |
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(3) if necessary, the amount of funds from the corpus |
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of the person's estate the court will allow the guardian to spend |
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for the education and maintenance of the person under Subchapter A, |
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Chapter 1156; |
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(4) whether the person is totally incapacitated |
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because of a mental condition; [and] |
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(5) that the person does not have the capacity to |
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operate a motor vehicle and to vote in a public election; and |
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(6) if it is a guardianship of the person of the ward |
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or of both the person and the estate of the ward, the rights of the |
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guardian with respect to the person as specified in Section |
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1151.051(c)(1). |
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(c) An order appointing a guardian under this section that |
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includes the rights of the guardian with respect to the person as |
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specified in Section 1151.051(c)(1) must also contain the following |
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prominently displayed statement in boldfaced type, in capital |
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letters, or underlined: |
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"NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY |
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USE REASONABLE EFFORTS TO ENFORCE THE RIGHT OF A GUARDIAN OF THE |
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PERSON OF A WARD TO HAVE PHYSICAL POSSESSION OF THE WARD OR TO |
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ESTABLISH THE WARD'S LEGAL DOMICILE AS SPECIFIED IN THIS ORDER. A |
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PEACE OFFICER WHO RELIES ON THE TERMS OF A COURT ORDER AND THE |
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OFFICER'S AGENCY ARE ENTITLED TO THE APPLICABLE IMMUNITY AGAINST |
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ANY CIVIL OR OTHER CLAIM REGARDING THE OFFICER'S GOOD FAITH ACTS |
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PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING THE |
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TERMS OF THIS ORDER THAT RELATE TO THE ABOVE-MENTIONED RIGHTS OF THE |
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COURT-APPOINTED GUARDIAN OF THE PERSON OF THE WARD. ANY PERSON WHO |
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KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER THAT IS INVALID OR NO |
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LONGER IN EFFECT COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY |
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CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS |
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$10,000." |
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SECTION 10. Section 1101.152, Estates Code, as effective |
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January 1, 2014, is amended by adding Subsection (c) to read as |
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follows: |
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(c) An order appointing a guardian under this section that |
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includes the right of the guardian to have physical possession of |
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the ward or to establish the ward's legal domicile as specified in |
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Section 1151.051(c)(1) must also contain the following prominently |
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displayed statement in boldfaced type, in capital letters, or |
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underlined: |
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"NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY |
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USE REASONABLE EFFORTS TO ENFORCE THE RIGHT OF A GUARDIAN OF THE |
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PERSON OF A WARD TO HAVE PHYSICAL POSSESSION OF THE WARD OR TO |
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ESTABLISH THE WARD'S LEGAL DOMICILE AS SPECIFIED IN THIS ORDER. A |
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PEACE OFFICER WHO RELIES ON THE TERMS OF A COURT ORDER AND THE |
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OFFICER'S AGENCY ARE ENTITLED TO THE APPLICABLE IMMUNITY AGAINST |
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ANY CIVIL OR OTHER CLAIM REGARDING THE OFFICER'S GOOD FAITH ACTS |
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PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING THE |
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TERMS OF THIS ORDER THAT RELATE TO THE ABOVE-MENTIONED RIGHTS OF THE |
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COURT-APPOINTED GUARDIAN OF THE PERSON OF THE WARD. ANY PERSON WHO |
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KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER THAT IS INVALID OR NO |
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LONGER IN EFFECT COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY |
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CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS |
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$10,000." |
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SECTION 11. Section 1102.005(b), Estates Code, as effective |
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January 1, 2014, is amended to read as follows: |
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(b) After examining the [ward's or] proposed ward's assets |
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and determining that the [ward or] proposed ward is unable to pay |
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for services provided by the guardian ad litem, the court may |
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authorize compensation from the county treasury. |
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SECTION 12. Section 1104.303(b), Estates Code, as effective |
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January 1, 2014, is amended to read as follows: |
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(b) The application must be: |
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(1) made to the clerk of the county having venue of the |
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proceeding for the appointment of a guardian; and |
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(2) accompanied by a nonrefundable fee of $40 [set by
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the clerk in an amount necessary] to cover the cost of administering |
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this subchapter. |
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SECTION 13. Section 1104.353(b), Estates Code, as effective |
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January 1, 2014, is amended to read as follows: |
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(b) It is presumed to be not in the best interests of a ward |
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or incapacitated person to appoint as guardian of the ward or |
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incapacitated person a person who has been finally convicted of: |
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(1) any sexual offense, including sexual assault, |
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aggravated sexual assault, and prohibited sexual conduct; |
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(2) aggravated assault; |
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(3) injury to a child, elderly individual, or disabled |
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individual; [or] |
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(4) abandoning or endangering a child; |
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(5) terroristic threat; or |
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(6) continuous violence against the family of the ward |
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or incapacitated person. |
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SECTION 14. Subchapter H, Chapter 1104, Estates Code, as |
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effective January 1, 2014, is amended by adding Section 1104.358 to |
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read as follows: |
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Sec. 1104.358. SUBJECT TO PROTECTIVE ORDER FOR FAMILY |
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VIOLENCE. A person found to have committed family violence who is |
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subject to a protective order issued under Chapter 85, Family Code, |
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may not be appointed guardian of a proposed ward or ward who is |
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protected by the protective order. |
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SECTION 15. Section 1151.051(c), Estates Code, as effective |
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January 1, 2014, is amended to read as follows: |
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(c) A guardian of the person has: |
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(1) the right to have physical possession of the ward |
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and to establish the ward's legal domicile; |
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(2) the duty to provide care, supervision, and |
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protection for the ward; |
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(3) the duty to provide the ward with clothing, food, |
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medical care, and shelter; |
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(4) the power to consent to medical, psychiatric, and |
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surgical treatment other than the inpatient psychiatric commitment |
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of the ward; [and] |
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(5) on application to and order of the court, the power |
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to establish a trust in accordance with 42 U.S.C. Section |
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1396p(d)(4)(B) and direct that the income of the ward as defined by |
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that section be paid directly to the trust, solely for the purpose |
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of the ward's eligibility for medical assistance under Chapter 32, |
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Human Resources Code; and |
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(6) the power to sign documents necessary or |
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appropriate to facilitate employment of the ward if: |
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(A) the guardian was appointed with full |
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authority over the person of the ward under Section 1101.151; or |
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(B) the power is specified in the court order |
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appointing the guardian with limited powers over the person of the |
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ward under Section 1101.152. |
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SECTION 16. Sections 1155.052(a) and (c), Estates Code, as |
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effective January 1, 2014, are amended to read as follows: |
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(a) Notwithstanding any other provision of this chapter [or
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Section 665B], an attorney who serves as guardian and who also |
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provides legal services in connection with the guardianship is not |
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entitled to compensation for the guardianship services or payment |
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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 |
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with the court a detailed description of the services performed |
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that identifies which of the services provided were guardianship |
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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 |
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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 |
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legal services provided in accordance with Sections 1155.054 |
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[1155.051], 1155.101, and 1155.151 [665B]. |
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SECTION 17. 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. |
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2759), Acts of the 82nd Legislature, Regular Session, 2011, Section |
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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 |
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filed an application to be appointed guardian of the proposed ward, |
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an application for the appointment of another suitable person as |
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guardian of the proposed ward, or an application for the creation of |
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the management trust, may authorize the payment of reasonable and |
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necessary attorney's fees, as determined by the court, in amounts |
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the court considers equitable and just, to an attorney who |
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represents the person who filed the application at the application |
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hearing, regardless of whether the person is appointed the ward's |
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guardian or whether a management trust is created, from[:
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[(1)] available funds of the ward's estate or |
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management trust, if created, subject to Subsections (b) and (d). |
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(b) The court may authorize amounts that otherwise would be |
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paid from the ward's estate or the management trust as provided by |
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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,] |
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management trust[,] is insufficient to pay [for] the amounts |
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[services provided by the attorney]; and |
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(2) [(B)] funds in the county treasury are budgeted |
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for that purpose. |
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(c) [(b)] The court may not authorize attorney's fees under |
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this section unless the court finds that the applicant acted in good |
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faith and for just cause in the filing and prosecution of the |
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application. |
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(d) If the court finds that a party in a guardianship |
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proceeding acted in bad faith or without just cause in prosecuting |
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or objecting to an application in the proceeding, the court may |
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require the party to reimburse the ward's estate for all or part of |
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the attorney's fees awarded under this section and shall issue |
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judgment against the party and in favor of the estate for the amount |
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of attorney's fees required to be reimbursed to the estate. |
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(e) [(c)] The court may authorize the payment of attorney's |
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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 |
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the fees will be paid has not received, and is not seeking, payment |
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for the services described by that subsection from any other |
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source. |
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SECTION 18. Section 1155.151, Estates Code, as effective |
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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 |
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proceeding [Except as provided by Subsection (b)], the court costs |
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[cost] of the proceeding [in a guardianship matter], including the |
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cost of the guardians [guardian] ad litem, attorneys ad litem, [or] |
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court visitor, mental health professionals, and interpreters |
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appointed under this title, shall be set in an amount the court |
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considers equitable and just and, except as provided by Subsection |
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(c), shall be paid out of the guardianship estate, or [the cost of
|
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the proceeding shall be paid out of] the county treasury if the |
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estate is insufficient to pay the cost, and the court shall issue |
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the judgment accordingly. |
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(b) The costs attributable to the services of a person |
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described by Subsection (a) shall be paid under this section at any |
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time after the commencement of the proceeding as ordered by the |
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court. |
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(c) If the court finds that a party in a guardianship |
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proceeding acted in bad faith or without just cause in prosecuting |
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or objecting to an application in the proceeding, the court may |
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order the party to pay all or part of the costs of the proceeding. |
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If the party found to be acting in bad faith or without just cause |
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was required to provide security for the probable costs of the |
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proceeding under Section 1053.052, the court shall first apply the |
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amount provided as security as payment for costs ordered by the |
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court under this subsection. If the amount provided as security is |
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insufficient to pay the entire amount ordered by the court, the |
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court shall render judgment in favor of the estate against the party |
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for the remaining amount. [An applicant for the appointment of a
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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 19. The heading to Section 1163.005, Estates Code, |
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as effective January 1, 2014, is amended to read as follows: |
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Sec. 1163.005. VERIFICATION OF ACCOUNT AND STATEMENT |
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REGARDING TAXES AND STATUS AS GUARDIAN. |
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SECTION 20. Section 1163.005(a), Estates Code, as effective |
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January 1, 2014, is amended to read as follows: |
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(a) The guardian of the estate shall attach to an account |
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the guardian's affidavit stating: |
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(1) that the account contains a correct and complete |
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statement of the matters to which the account relates; |
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(2) that the guardian has paid the bond premium for the |
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next accounting period; |
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(3) that the guardian has filed all tax returns of the |
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ward due during the accounting period; [and] |
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(4) that the guardian has paid all taxes the ward owed |
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during the accounting period, the amount of the taxes, the date the |
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guardian paid the taxes, and the name of the governmental entity to |
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which the guardian paid the taxes; and |
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(5) if the guardian is a private professional |
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guardian, a guardianship program, or the Department of Aging and |
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Disability Services, whether the guardian or an individual |
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certified under Subchapter C, Chapter 111, Government Code, who is |
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providing guardianship services to the ward and who is swearing to |
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the account on the guardian's behalf, is or has been the subject of |
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an investigation conducted by the Guardianship Certification Board |
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during the accounting period. |
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SECTION 21. Section 1163.101(c), Estates Code, as effective |
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January 1, 2014, is amended to read as follows: |
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(c) The guardian of the person shall file a sworn affidavit |
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that contains: |
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(1) the guardian's current name, address, and |
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telephone number; |
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(2) the ward's date of birth and current name, address, |
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telephone number, and age; |
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(3) a description of the type of home in which the ward |
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resides, which shall be described as: |
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(A) the ward's own home; |
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(B) a nursing home; |
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(C) a guardian's home; |
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(D) a foster home; |
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(E) a boarding home; |
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(F) a relative's home, in which case the |
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description must specify the relative's relationship to the ward; |
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(G) a hospital or medical facility; or |
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(H) another type of residence; |
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(4) statements indicating: |
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(A) the length of time the ward has resided in the |
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present home; |
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(B) the reason for a change in the ward's |
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residence, if a change in the ward's residence has occurred in the |
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past year; |
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(C) the date the guardian most recently saw the |
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ward; |
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(D) how frequently the guardian has seen the ward |
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in the past year; |
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(E) whether the guardian has possession or |
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control of the ward's estate; |
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(F) whether the ward's mental health has |
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improved, deteriorated, or remained unchanged during the past year, |
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including a description of the change if a change has occurred; |
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(G) whether the ward's physical health has |
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improved, deteriorated, or remained unchanged during the past year, |
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including a description of the change if a change has occurred; |
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(H) whether the ward has regular medical care; |
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and |
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(I) the ward's treatment or evaluation by any of |
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the following persons during the past year, including the person's |
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name and a description of the treatment: |
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(i) a physician; |
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(ii) a psychiatrist, psychologist, or other |
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mental health care provider; |
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(iii) a dentist; |
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(iv) a social or other caseworker; or |
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(v) any other individual who provided |
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treatment; |
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(5) a description of the ward's activities during the |
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past year, including recreational, educational, social, and |
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occupational activities, or a statement that no activities were |
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available or that the ward was unable or refused to participate in |
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activities; |
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(6) the guardian's evaluation of: |
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(A) the ward's living arrangements as excellent, |
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average, or below average, including an explanation if the |
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conditions are below average; |
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(B) whether the ward is content or unhappy with |
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the ward's living arrangements; and |
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(C) unmet needs of the ward; |
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(7) a statement indicating whether the guardian's |
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power should be increased, decreased, or unaltered, including an |
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explanation if a change is recommended; |
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(8) a statement indicating that the guardian has paid |
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the bond premium for the next reporting period; [and] |
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(9) if the guardian is a private professional |
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guardian, a guardianship program, or the Department of Aging and |
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Disability Services, whether the guardian or an individual |
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certified under Subchapter C, Chapter 111, Government Code, who is |
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providing guardianship services to the ward and who is swearing to |
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the affidavit on the guardian's behalf, is or has been the subject |
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of an investigation conducted by the Guardianship Certification |
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Board during the preceding year; and |
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(10) any additional information the guardian desires |
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to share with the court regarding the ward, including: |
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(A) whether the guardian has filed for emergency |
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detention of the ward under Subchapter A, Chapter 573, Health and |
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Safety Code; and |
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(B) if applicable, the number of times the |
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guardian has filed for emergency detention and the dates of the |
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applications for emergency detention. |
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SECTION 22. Subchapter C, Chapter 1163, Estates Code, as |
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effective January 1, 2014, is amended by adding Section 1163.1011 |
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to read as follows: |
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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 |
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annual report required by Section 1163.101 electronically with the |
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court may use an unsworn declaration made as provided by this |
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section instead of a written sworn declaration or affidavit |
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required by Section 1163.101. |
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(b) An unsworn declaration authorized by this section must |
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be: |
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(1) in writing; and |
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(2) subscribed by the person making the declaration as |
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true under penalty of perjury. |
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(c) The form of an unsworn declaration authorized by this |
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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, |
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declare under penalty of perjury that the foregoing is true and |
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correct. |
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Executed on (insert date) |
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________________________ |
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(signature) |
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(d) An unsworn declaration authorized by Section 132.001, |
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Civil Practice and Remedies Code, may not be used instead of a |
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written sworn declaration or affidavit required by Section |
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1163.101. |
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SECTION 23. Section 1251.013, Estates Code, as effective |
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January 1, 2014, is amended to read as follows: |
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Sec. 1251.013. COURT COSTS. If the court appoints a |
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temporary guardian after the hearing required by Section |
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1251.006(b), all court costs, including attorney's fees, may be |
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assessed as provided by Sections 1155.054 and [1155.051,] |
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1155.151[, and 665B]. |
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SECTION 24. The heading to Section 1301.052, Estates Code, |
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as effective January 1, 2014, is amended to read as follows: |
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Sec. 1301.052. VENUE FOR PROCEEDING INVOLVING TRUST FOR AN |
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ALLEGED INCAPACITATED PERSON. |
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SECTION 25. Section 1301.054, Estates Code, as effective |
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January 1, 2014, is amended by amending Subsection (c) and adding |
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Subsection (c-1) to read as follows: |
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(c) Except as provided by Subsection (c-1), the [The] court |
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shall appoint an attorney ad litem and, if necessary, may appoint a |
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guardian ad litem, to represent the interests of the alleged |
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incapacitated person in the hearing to determine incapacity under |
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Subsection (a). |
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(c-1) If the application for the creation of the trust is |
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filed by a person who has only a physical disability, the court may, |
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but is not required to, appoint an attorney ad litem or guardian ad |
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litem to represent the interests of the person in the hearing to |
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determine incapacity under Subsection (a). |
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SECTION 26. Section 1301.055, Estates Code, as effective |
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January 1, 2014, is amended to read as follows: |
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Sec. 1301.055. AUTHORITY OF COURT TO APPOINT GUARDIAN |
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INSTEAD OF CREATING TRUST. If, after a hearing under Section |
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1301.054, the court finds that the person for whom the application |
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was filed is an incapacitated person but that it is not in the |
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incapacitated person's best interests for the court to create a |
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trust under this subchapter for the incapacitated person's estate, |
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the court may appoint a guardian of the person or estate, or both, |
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for the incapacitated person without commencing a separate |
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proceeding for that purpose. |
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SECTION 27. Sections 1301.057(b), (c), and (d), Estates |
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Code, as effective January 1, 2014, are amended to read as follows: |
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(b) Except as provided by Subsection (c), the court shall |
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appoint a financial institution to serve as trustee of a management |
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trust, other than a management trust created for a person who has |
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only a physical disability. |
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(c) The court may appoint a person or entity described by |
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Subsection (d) to serve as trustee of a management trust created for |
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a ward or incapacitated person instead of appointing a financial |
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institution to serve in that capacity if the court finds: |
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(1) that the appointment is in the best interests of |
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the ward or incapacitated person for whom the trust is created; and |
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(2) if the value of the trust's principal is more than |
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$150,000, that the applicant for the creation of the trust, after |
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the exercise of due diligence, has been unable to find a financial |
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institution in the geographic area willing to serve as trustee. |
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(d) The following are eligible for appointment as trustee of |
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a management trust created for a ward or incapacitated person under |
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Subsection (c): |
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(1) an individual, including an individual who is |
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certified as a private professional guardian; |
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(2) a nonprofit corporation qualified to serve as a |
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guardian; and |
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(3) a guardianship program. |
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SECTION 28. Section 1301.058, Estates Code, as effective |
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January 1, 2014, is amended to read as follows: |
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Sec. 1301.058. BOND REQUIREMENTS FOR TRUSTEES. (a) The |
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following serve [A trustee of a management trust that is a corporate
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fiduciary serves] without giving a bond in accordance with the |
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trust terms required by Sections [Section] 1301.101(a)(4) and |
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(a-1): |
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(1) a trustee of a management trust that is a corporate |
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fiduciary; and |
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(2) any other trustee of a management trust created |
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for a person who has only a physical disability. |
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(b) Except as provided by Subsection (a), the [The] court |
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shall require a person[, other than a corporate fiduciary,] serving |
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as trustee of a management trust to file with the county clerk a |
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bond that: |
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(1) is in an amount equal to the value of the trust's |
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principal and projected annual income; and |
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(2) meets the conditions the court determines are |
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necessary. |
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SECTION 29. Section 1301.101, Estates Code, as effective |
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January 1, 2014, is amended to conform to Section 31, Chapter 1085 |
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(S.B. 1196), Acts of the 82nd Legislature, Regular Session, 2011, |
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and is further amended to read as follows: |
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Sec. 1301.101. REQUIRED TERMS. (a) Except as provided by |
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Subsection (c), a management trust created for a ward or |
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incapacitated person must provide that: |
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(1) the ward or incapacitated person [for whom the
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trust is created] is the sole beneficiary of the trust; |
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(2) the trustee may disburse an amount of the trust's |
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principal or income as the trustee determines is necessary to spend |
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for the health, education, maintenance, or support of the [ward or
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incapacitated] person for whom the trust is created; |
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(3) the trust income that the trustee does not |
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disburse under Subdivision (2) must be added to the trust |
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principal; |
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(4) a trustee that is a corporate fiduciary serves |
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without giving a bond; and |
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(5) subject to the court's approval and Subsection |
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(b), a [the] trustee is entitled to receive reasonable compensation |
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for services the trustee provides to the [ward or incapacitated] |
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person for whom the trust is created as the person's trustee. |
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(a-1) A management trust created for a person who has only a |
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physical disability must provide that the trustee of the trust: |
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(1) serves without giving a bond; and |
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(2) is entitled to receive, without the court's |
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approval, reasonable compensation for services the trustee |
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provides to the person as the person's trustee. |
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(b) A trustee's compensation under Subsection (a)(5) must |
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be: |
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(1) paid from the management trust's income, |
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principal, or both; and |
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(2) determined, paid, reduced, and eliminated in the |
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same manner as compensation of a guardian [of an estate] under |
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Subchapter A, Chapter 1155. |
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(c) The court creating or modifying a management trust may |
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omit or modify otherwise applicable terms required by Subsection |
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(a), (a-1), or (b) [(a)(1) or (2) only] if the court is creating the |
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trust for a person who has only a physical disability, or if the |
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court determines that the omission or modification: |
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(1) is necessary and appropriate for the [ward or
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incapacitated] person for whom the trust is created to be eligible |
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to receive public benefits or assistance under a state or federal |
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program that is not otherwise available to the [ward or
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incapacitated] person; or [and] |
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(2) is in the [ward's or incapacitated person's] best |
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interests of the person for whom the trust is created. |
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SECTION 30. Section 1301.102(a), Estates Code, as effective |
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January 1, 2014, is amended to conform to Section 31, Chapter 1085 |
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(S.B. 1196), Acts of the 82nd Legislature, Regular Session, 2011, |
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and is further amended to read as follows: |
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(a) A management trust created for a ward or incapacitated |
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person may provide that the trustee make a distribution, payment, |
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use, or application of trust funds for the health, education, |
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maintenance, or support of the [ward or incapacitated] person for |
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whom the trust is created or of another person whom the [ward or
|
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incapacitated] person for whom the trust is created is legally |
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obligated to support: |
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(1) as necessary and without the intervention of: |
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(A) a guardian or other representative of the |
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ward; or |
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(B) a representative of the incapacitated |
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person; and |
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(2) to: |
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(A) the ward's guardian; |
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(B) a person who has physical custody of the |
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[ward or incapacitated] person for whom the trust is created or of |
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another person whom the [ward or incapacitated] person for whom the |
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trust is created is legally obligated to support; or |
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(C) a person providing a good or service to the |
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[ward or incapacitated] person for whom the trust is created or to |
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another person whom the [ward or incapacitated] person for whom the |
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trust is created is legally obligated to support. |
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SECTION 31. Section 1301.103, Estates Code, as effective |
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January 1, 2014, is amended to read as follows: |
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Sec. 1301.103. ENFORCEABILITY OF CERTAIN TERMS. A |
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provision in a management trust created for a ward or incapacitated |
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person that relieves a trustee from a duty or liability imposed by |
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this chapter or Subtitle B, Title 9, Property Code, is enforceable |
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only if: |
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(1) the provision is limited to specific facts and |
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circumstances unique to the property of that trust and is not |
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applicable generally to the trust; and |
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(2) the court creating or modifying the trust makes a |
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specific finding that there is clear and convincing evidence that |
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the inclusion of the provision is in the best interests of the trust |
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beneficiary. |
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SECTION 32. Section 1301.154(a), Estates Code, as effective |
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January 1, 2014, is amended to read as follows: |
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(a) The trustee of a management trust created for a ward |
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shall prepare and file with the court an annual accounting of |
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transactions in the trust in the same manner and form that is |
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required of a guardian of the estate under this title. |
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SECTION 33. Section 1301.202, Estates Code, as effective |
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January 1, 2014, is amended by adding Subsection (a-1) to read as |
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follows: |
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(a-1) For purposes of a proceeding to determine whether to |
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transfer property from a management trust to a pooled trust |
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subaccount, the court may, but is not required to, appoint an |
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attorney ad litem or guardian ad litem to represent the interests of |
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a person who has only a physical disability for whom the management |
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trust was created. |
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SECTION 34. (a) Section 1155.051, Estates Code, as |
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effective January 1, 2014, is repealed. |
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(b) Notwithstanding the transfer of Section 631, Texas |
|
Probate Code, to the Estates Code and redesignation as Section 631 |
|
of that code effective January 1, 2014, by Section 3.01(d), Chapter |
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823 (H.B. 2759), Acts of the 82nd Legislature, Regular Session, |
|
2011, Section 631, Texas Probate Code, is repealed. |
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SECTION 35. (a) Except as otherwise provided by this |
|
section, the changes in law made by this Act apply to: |
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(1) a guardianship created before, on, or after the |
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effective date of this Act; and |
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(2) an application for a guardianship pending on, or |
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filed on or after, the effective date of this Act. |
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(b) The changes in law made by this Act to Sections |
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1301.054, 1301.055, 1301.057(b), (c), and (d), 1301.058, 1301.101, |
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and 1301.102(a), Estates Code, apply only to an application for the |
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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 |
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created before, on, or after the effective date of this Act. |
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SECTION 36. Section 51.607, Government Code, does not apply |
|
to the change in the amount of a fee made by Section 1104.303(b), |
|
Estates Code, as amended by this Act. |
|
SECTION 37. 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. |
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SECTION 38. Except as otherwise provided by this Act, this |
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Act takes effect January 1, 2014. |
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* * * * * |