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A BILL TO BE ENTITLED
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AN ACT
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relating to examination requirements for wards and proposed wards |
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in certain guardianship matters. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 1101.103, Estates Code, as effective |
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January 1, 2014, is amended to read as follows: |
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Sec. 1101.103. DETERMINATION OF INCAPACITY OF CERTAIN |
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ADULTS: PHYSICIAN OR PSYCHOLOGIST EXAMINATION. (a) Except as |
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provided by Section 1101.104, the court may not grant an |
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application to create a guardianship for an incapacitated person, |
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other than a minor or person for whom it is necessary to have a |
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guardian appointed only to receive funds from a governmental |
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source, unless the applicant presents to the court a written letter |
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or certificate from a physician or psychologist licensed in this |
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state that is: |
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(1) dated not earlier than the 120th day before the |
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date the application is filed; and |
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(2) based on an examination the physician or |
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psychologist performed not earlier than the 120th day before the |
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date the application is filed. |
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(b) The letter or certificate must: |
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(1) describe the nature, degree, and severity of the |
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proposed ward's incapacity, including any functional deficits |
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regarding the proposed ward's ability to: |
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(A) handle business and managerial matters; |
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(B) manage financial matters; |
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(C) operate a motor vehicle; |
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(D) make personal decisions regarding residence, |
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voting, and marriage; and |
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(E) consent to medical, dental, psychological, |
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or psychiatric treatment; |
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(2) in providing a description under Subdivision (1) |
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regarding the proposed ward's ability to operate a motor vehicle |
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and make personal decisions regarding voting, state whether in the |
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physician's or psychologist's opinion the proposed ward: |
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(A) has the mental capacity to vote in a public |
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election; and |
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(B) has the ability to safely operate a motor |
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vehicle; |
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(3) provide: |
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(A) if a physician performs the examination, an |
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evaluation of the proposed ward's physical condition and mental |
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function and summarize the proposed ward's medical history if |
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reasonably available; or |
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(B) if a psychologist performs the examination, |
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an evaluation of the proposed ward's mental function and summarize |
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the proposed ward's psychological history, if applicable; |
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(4) state how or in what manner the proposed ward's |
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ability to make or communicate responsible decisions concerning |
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himself or herself is affected by the proposed ward's physical or |
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mental health, including the proposed ward's ability to: |
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(A) understand or communicate; |
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(B) recognize familiar objects and individuals; |
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(C) perform simple calculations; |
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(D) reason logically; and |
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(E) administer to daily life activities; |
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(5) state whether any current medication affects the |
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proposed ward's demeanor or the proposed ward's ability to |
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participate fully in a court proceeding; |
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(6) describe the precise physical or [and] mental |
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conditions underlying a diagnosis of a mental disability, and state |
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whether the proposed ward would benefit from supports and services |
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that would allow the individual to live in the least restrictive |
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setting; and |
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(7) include any other information required by the |
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court. |
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(c) If the court determines it is necessary, the court may |
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appoint a physician or psychologist [the necessary physicians] to |
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examine the proposed ward. The court must make its determination |
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with respect to the necessity for a physician's or psychologist's |
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examination of the proposed ward at a hearing held for that |
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purpose. Not later than the fourth day before the date of the |
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hearing, the applicant shall give to the proposed ward and the |
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proposed ward's attorney ad litem written notice specifying the |
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purpose and the date and time of the hearing. |
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(d) A physician or psychologist who examines the proposed |
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ward, other than a physician or psychologist who examines the |
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proposed ward under Section 1101.104(2), shall make available for |
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inspection by the attorney ad litem appointed to represent the |
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proposed ward a written letter or certificate from the physician or |
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psychologist that complies with the requirements of Subsections (a) |
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and (b). |
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SECTION 2. Section 1202.152, Estates Code, as effective |
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January 1, 2014, is amended to read as follows: |
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Sec. 1202.152. PHYSICIAN'S OR PSYCHOLOGIST'S LETTER OR |
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CERTIFICATE REQUIRED. (a) The court may not grant an order |
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completely restoring a ward's capacity or modifying a ward's |
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guardianship under an application filed under Section 1202.051 |
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unless the applicant presents to the court a written letter or |
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certificate from a physician or psychologist licensed in this state |
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that is dated: |
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(1) not earlier than the 120th day before the date the |
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application was filed; or |
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(2) after the date the application was filed but |
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before the date of the hearing. |
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(b) A letter or certificate presented under Subsection (a) |
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must: |
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(1) describe the nature and degree of incapacity, |
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including, as appropriate, the medical or psychological history if |
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reasonably available, or state that, in the physician's or |
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psychologist's opinion, the ward has the capacity to: |
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(A) provide food, clothing, and shelter for |
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himself or herself; |
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(B) care for the ward's own physical health; and |
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(C) manage the ward's financial affairs; |
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(2) provide: |
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(A) if the letter or certificate is from a |
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physician, a medical prognosis specifying the estimated severity of |
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any incapacity; or |
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(B) if the letter or certificate is from a |
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psychologist, a psychological prognosis specifying the estimated |
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severity of any mental incapacity; |
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(3) state how or in what manner the ward's ability to |
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make or communicate responsible decisions concerning himself or |
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herself is affected by the ward's physical or mental health; |
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(4) state whether any current medication affects the |
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ward's demeanor or the ward's ability to participate fully in a |
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court proceeding; |
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(5) describe the precise physical or [and] mental |
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conditions underlying a diagnosis of senility, if applicable; and |
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(6) include any other information required by the |
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court. |
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(c) If the court determines it is necessary, the court may |
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appoint a physician or psychologist [the necessary physicians] to |
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examine the ward in the same manner and to the same extent as a ward |
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is examined by a physician or psychologist under Section 1101.103 |
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or 1101.104. |
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SECTION 3. (a) The changes in law made by this Act to |
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Section 1101.103, Estates Code, apply only to an application for |
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the creation of a guardianship filed on or after the effective date |
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of this Act. An application for the creation of a guardianship |
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filed before the effective date of this Act is governed by the law |
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in effect on the date the application was filed, and the former law |
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is continued in effect for that purpose. |
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(b) The changes in law made by this Act to Section 1202.152, |
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Estates Code, apply only to an application for the complete |
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restoration of a ward's capacity or modification of a guardianship |
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filed on or after the effective date of this Act. An application |
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for the complete restoration of a ward's capacity or modification |
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of a guardianship filed before the effective date of this Act is |
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governed by the law in effect on the date the application was filed, |
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and the former law is continued in effect for that purpose. |
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SECTION 4. This Act takes effect January 1, 2014. |