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A BILL TO BE ENTITLED
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AN ACT
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relating to guardianships and other matters related to |
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incapacitated persons. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 1023.005, Estates Code, is amended to |
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read as follows: |
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Sec. 1023.005. COURT ACTION. [(a)] On hearing an |
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application under Section 1023.003, if good cause is not shown to |
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deny the application and it appears that transfer of the |
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guardianship is in the best interests of the ward, the court shall |
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enter an order: |
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(1) authorizing the transfer on payment on behalf of |
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the estate of all accrued costs; and |
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(2) requiring that any existing bond of the guardian |
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must remain in effect until a new bond has been given or a rider has |
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been filed in accordance with Section 1023.010. |
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[(b)
In an order entered under Subsection (a), the court
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shall require the guardian, not later than the 20th day after the
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date the order is entered, to:
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[(1)
give a new bond payable to the judge of the court
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to which the guardianship is transferred; or
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[(2)
file a rider to an existing bond noting the court
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to which the guardianship is transferred.] |
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SECTION 2. Section 1023.010, Estates Code, is amended to |
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read as follows: |
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Sec. 1023.010. REVIEW OF TRANSFERRED GUARDIANSHIP. (a) |
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Not later than the 90th day after the date the transfer of the |
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guardianship takes effect under Section 1023.007, the court to |
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which the guardianship was transferred shall hold a hearing to |
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consider modifying the rights, duties, and powers of the guardian |
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or any other provisions of the transferred guardianship. |
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(b) After the hearing described by Subsection (a), the court |
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to which the guardianship was transferred shall enter an order |
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requiring the guardian to: |
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(1) give a new bond payable to the judge of the court |
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to which the guardianship was transferred; or |
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(2) file a rider to an existing bond noting the court |
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to which the guardianship was transferred. |
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SECTION 3. Section 1051.104(a), Estates Code, is amended to |
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read as follows: |
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(a) The person filing an application for guardianship shall |
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mail a copy of the application and a notice containing the |
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information required in the citation issued under Section 1051.102 |
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by registered or certified mail, return receipt requested, or by |
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any other form of mail that provides proof of delivery, to the |
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following persons, if their whereabouts are known or can be |
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reasonably ascertained: |
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(1) each adult child of the proposed ward; |
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(2) each adult sibling of the proposed ward; |
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(3) the administrator of a nursing home facility or |
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similar facility in which the proposed ward resides; |
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(4) the operator of a residential facility in which |
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the proposed ward resides; |
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(5) a person whom the applicant knows to hold a power |
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of attorney signed by the proposed ward; |
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(6) a person designated to serve as guardian of the |
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proposed ward by a written declaration under Subchapter E, Chapter |
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1104, if the applicant knows of the existence of the declaration; |
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(7) a person designated to serve as guardian of the |
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proposed ward in the probated will of the last surviving parent of |
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the proposed ward; |
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(8) a person designated to serve as guardian of the |
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proposed ward by a written declaration of the proposed ward's last |
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surviving parent, if the declarant is deceased and the applicant |
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knows of the existence of the declaration; and |
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(9) each adult [person] named [as another relative
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within the third degree by consanguinity] in the application as an |
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"other living relative" of the proposed ward within the third |
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degree by consanguinity, as required by Section 1101.001(b)(11) or |
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(13), if the proposed ward's spouse and each of the proposed ward's |
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parents, adult siblings, and adult children are deceased or there |
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is no spouse, parent, adult sibling, or adult child. |
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SECTION 4. Section 1052.001(a), Estates Code, is amended to |
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read as follows: |
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(a) The county clerk shall maintain a record book titled |
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"Judge's Guardianship Docket" and shall record in the book: |
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(1) the name of each person with respect to whom, or |
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with respect to whose estate, a proceeding is commenced or sought to |
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be commenced; |
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(2) the name of the guardian of the estate or person or |
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of the applicant for letters of guardianship; |
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(3) the date each original application for a |
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guardianship proceeding is filed; |
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(4) a notation of each order, judgment, decree, and |
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proceeding that occurs in each guardianship [estate], including the |
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date it occurs; and |
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(5) the docket number of each guardianship as assigned |
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under Subsection (b). |
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SECTION 5. Section 1052.051(f), Estates Code, is amended to |
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read as follows: |
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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; |
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(2) the management trust, if a management trust has |
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been created for the benefit of the ward under Chapter 1301 and the |
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court determines it is in the ward's best interest; or |
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(3) [(2)] the county treasury, if the assets of the |
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guardianship estate or management trust, as appropriate, are [is] |
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insufficient to pay the amount of the filing fee. |
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SECTION 6. Section 1101.001, Estates Code, is amended by |
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adding Subsection (c) to read as follows: |
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(c) For purposes of this section, a proposed ward's |
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relatives within the third degree by consanguinity include the |
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proposed ward's: |
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(1) grandparent or grandchild; and |
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(2) great-grandparent, great-grandchild, aunt who is |
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a sister of a parent of the proposed ward, uncle who is a brother of |
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a parent of the proposed ward, nephew who is a child of a brother or |
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sister of the proposed ward, or niece who is a child of a brother or |
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sister of the proposed ward. |
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SECTION 7. Subchapter D, Chapter 1101, Estates Code, is |
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amended by adding Section 1101.156 to read as follows: |
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Sec. 1101.156. REQUIRED DEPOSIT OF ESTATE ASSETS. (a) |
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Before an order appointing a guardian is entered, or in such an |
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order, a court may require the deposit of cash, securities, or other |
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assets of a proposed ward or ward in a financial institution |
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described by Section 1105.155(b) for safekeeping. |
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(b) The amount of the bond required to be given by the |
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guardian under Section 1105.101 shall be reduced in proportion to |
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the amount of the cash or the value of the securities or other |
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assets deposited under this section. |
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SECTION 8. Section 1102.005, Estates Code, is amended to |
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read as follows: |
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Sec. 1102.005. COMPENSATION OF GUARDIAN AD LITEM. (a) |
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Regardless of whether a guardianship is created for a proposed |
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ward, a [A] court that appoints a guardian ad litem under Section |
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1102.001 may authorize compensation of the guardian ad litem from |
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available funds of: |
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(1) the proposed ward's estate; or |
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(2) the management trust, if a management trust has |
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been created for the benefit of the proposed ward under Chapter |
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1301[, regardless of whether a guardianship is created for the
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proposed ward]. |
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(b) After examining the proposed ward's assets or the assets |
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of any management trust created for the proposed ward's benefit |
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under Chapter 1301, and determining that the proposed ward or the |
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management trust is unable to pay for services provided by the |
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guardian ad litem, the court may authorize compensation from the |
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county treasury. |
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SECTION 9. Section 1104.154(a), Estates Code, is amended to |
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read as follows: |
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(a) As an alternative to the self-proving affidavit |
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authorized by Section 1104.153, a declaration of appointment of a |
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guardian for the declarant's children in the event of the |
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declarant's death or incapacity may be simultaneously executed, |
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attested, and made self-proved by including the following in |
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substantially the same form and with substantially the same |
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contents: |
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I, _________________________, as declarant, after being duly |
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sworn, declare to the undersigned witnesses and to the undersigned |
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authority that this instrument is my Declaration of Appointment of |
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Guardian for My Children in the Event of My Death or Incapacity, and |
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that I willingly make [have made] and execute [executed] it for the |
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purposes expressed in the declaration. I now sign this declaration |
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in the presence of the attesting witnesses and the undersigned |
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authority on this ____ day of ________, 20__. |
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___________________________ |
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Declarant |
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The undersigned, _____________________ and |
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___________________, each being 14 years of age or older, after |
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being duly sworn, declare to the declarant and to the undersigned |
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authority that the declarant declared to us that this instrument is |
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the declarant's Declaration of Appointment of Guardian for the |
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Declarant's Children in the Event of Declarant's Death or |
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Incapacity and that the declarant executed it for the purposes |
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expressed in the declaration. The declarant then signed this |
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declaration and we believe the declarant to be of sound mind. We now |
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sign our names as attesting witnesses on this _____ day of |
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___________, 20___. |
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___________________________ |
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Witness |
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___________________________ |
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Witness |
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Subscribed and sworn to before me by the above named |
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declarant, and affiants, this ____ day of __________________, 20__. |
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___________________________ |
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Notary Public in and for the |
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State of Texas |
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My Commission expires: |
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___________________________ |
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SECTION 10. Section 1104.205(a), Estates Code, is amended |
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to read as follows: |
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(a) As an alternative to the self-proving affidavit |
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authorized by Section 1104.204, a declaration of guardian in the |
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event of later incapacity or need of guardian may be simultaneously |
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executed, attested, and made self-proved by including the following |
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in substantially the same form and with substantially the same |
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contents: |
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I, _________________________, as declarant, after being duly |
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sworn, declare to the undersigned witnesses and to the undersigned |
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authority that this instrument is my Declaration of Guardian in the |
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Event of Later Incapacity or Need of Guardian, and that I willingly |
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make [have made] and execute [executed] it for the purposes |
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expressed in the declaration. I now sign this declaration in the |
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presence of the attesting witnesses and the undersigned authority |
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on this ____ day of ________, 20__. |
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___________________________ |
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Declarant |
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The undersigned, _____________________ and |
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___________________, each being 14 years of age or older, after |
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being duly sworn, declare to the declarant and to the undersigned |
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authority that the declarant declared to us that this instrument is |
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the declarant's Declaration of Guardian in the Event of Later |
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Incapacity or Need of Guardian and that the declarant executed it |
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for the purposes expressed in the declaration. The declarant then |
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signed this declaration and we believe the declarant to be of sound |
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mind. We now sign our names as attesting witnesses on this _____ day |
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of ___________, 20___. |
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___________________________ |
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Witness |
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___________________________ |
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Witness |
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Subscribed and sworn to before me by the above named |
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declarant, and affiants, this ____ day of __________________, 20__. |
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__________________________ |
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Notary Public in and for the |
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State of Texas |
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My Commission expires: |
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__________________________ |
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SECTION 11. Section 1155.151(a), Estates Code, is amended |
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to read as follows: |
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(a) In a guardianship proceeding, the court costs of the |
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proceeding, including the cost of the guardians ad litem, attorneys |
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ad litem, court visitor, mental health professionals, and |
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interpreters appointed under this title, shall be set in an amount |
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the court considers equitable and just and, except as provided by |
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Subsection (c), shall be paid as follows, and the court shall issue |
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the judgment accordingly: |
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(1) out of the guardianship estate; |
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(2) out of the management trust, if a management trust |
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has been created for the benefit of the ward under Chapter 1301 and |
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the court determines it is in the ward's best interest; [,] or |
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(3) out of the county treasury if the assets of the |
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guardianship estate or management trust, as appropriate, are [is] |
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insufficient to pay the cost[, and the court shall issue the
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judgment accordingly]. |
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SECTION 12. Section 1203.202(c), Estates Code, is amended |
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to read as follows: |
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(c) A successor guardian may: |
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(1) make himself or herself, and be made, a party to a |
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suit prosecuted by or against the successor's predecessor; |
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(2) settle with the predecessor and receive and give a |
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receipt for any portion of the estate property that remains in the |
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predecessor's [successor's] possession; or |
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(3) commence a suit on the bond or bonds of the |
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predecessor, in the successor's own name and capacity, for all the |
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estate property that: |
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(A) came into the predecessor's possession; and |
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(B) has not been accounted for by the |
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predecessor. |
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SECTION 13. Section 1253.051, Estates Code, is amended to |
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read as follows: |
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Sec. 1253.051. APPLICATION FOR RECEIPT AND ACCEPTANCE OF |
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FOREIGN GUARDIANSHIP. A guardian appointed by a foreign court to |
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represent an incapacitated person who is residing in this state or |
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intends to move to this state may file an application with a court |
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in the county in which the ward resides or in which it is intended |
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that the ward will [intends to] reside to have the guardianship |
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transferred to that [the] court. The application must have |
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attached a certified copy of all papers of the guardianship filed |
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and recorded in the foreign court. |
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SECTION 14. Section 1301.1535, Estates Code, is amended to |
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read as follows: |
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Sec. 1301.1535. INITIAL ACCOUNTING BY CERTAIN TRUSTEES |
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REQUIRED. (a) This section applies only to a trustee of a |
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management trust created for a person who [for whom a guardianship
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proceeding is pending] on the date the trust is created is: |
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(1) a ward under an existing guardianship; or |
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(2) a proposed ward with respect to whom an |
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application for guardianship has been filed and is pending. |
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(b) Not later than the 30th day after the date a trustee to |
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which this section applies receives property into the trust, the |
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trustee shall file with the court that created the guardianship or |
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the court in which the application for guardianship was filed |
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[proceeding is pending] a report describing all property held in |
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the trust on the date of the report and specifying the value of the |
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property on that date. |
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SECTION 15. Section 1351.001, Estates Code, is amended to |
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read as follows: |
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Sec. 1351.001. AUTHORITY TO SELL MINOR'S INTEREST IN |
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PROPERTY WITHOUT GUARDIANSHIP. (a) A parent or managing |
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conservator of a minor who is not a ward may apply to the court under |
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this subchapter for an order to sell an interest of the minor in |
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property without being appointed guardian if the net value of the |
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interest does not exceed $100,000. |
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(b) If a minor who is not a ward does not have a parent or |
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managing conservator willing or able to file an application under |
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Subsection (a), the court may appoint an attorney ad litem or |
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guardian ad litem to act on the minor's behalf for the limited |
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purpose of applying for an order to sell the minor's interest in |
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property under this subchapter. |
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SECTION 16. Sections 1351.002(a) and (b), Estates Code, are |
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amended to read as follows: |
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(a) A parent, [or] managing conservator, or attorney ad |
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litem or guardian ad litem appointed under Section 1351.001(b) |
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shall apply to the court under oath for the sale of property under |
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this subchapter. |
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(b) An application must contain: |
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(1) the minor's name; |
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(2) a legal description of the real property or a |
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description that identifies the personal property, as applicable; |
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(3) the minor's interest in the property; |
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(4) the purchaser's name; |
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(5) a statement that the sale of the minor's interest |
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in the property is for cash; and |
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(6) a statement that all money received from the sale |
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of the minor's interest in the property [by the parent or managing
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conservator] shall be used for the minor's use and benefit. |
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SECTION 17. Section 1351.051, Estates Code, is amended to |
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read as follows: |
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Sec. 1351.051. APPLICABILITY OF SUBCHAPTER. This |
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subchapter applies only to a ward who has: |
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(1) a guardian of the person but does not have a |
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guardian of the estate; or |
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(2) a guardian of the estate appointed by a foreign |
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court. |
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SECTION 18. Section 1351.052, Estates Code, is amended to |
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read as follows: |
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Sec. 1351.052. AUTHORITY TO SELL WARD'S INTEREST IN |
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PROPERTY WITHOUT APPOINTMENT AS GUARDIAN OF THE ESTATE IN THIS |
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STATE. A guardian of the person of a ward or a guardian of the |
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estate of a ward appointed by a foreign court may apply to the court |
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under this subchapter for an order to sell an interest in property |
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in the ward's estate without being appointed guardian of the ward's |
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estate in this state if the net value of the interest does not |
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exceed $100,000. |
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SECTION 19. Section 1351.053(b), Estates Code, is amended |
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to read as follows: |
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(b) For purposes of Subsection (a)(2), references in |
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Section 1351.002(b) to[:
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[(1)] "minor" are replaced with references to "ward." |
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["ward"; and
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[(2)
"parent or managing conservator" are replaced
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with references to "guardian of the person."] |
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SECTION 20. (a) Except as otherwise provided by this |
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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 1023.005 |
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and 1023.010, Estates Code, apply only to an application for the |
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transfer of a guardianship to another county filed on or after the |
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effective date of this Act. An application for the transfer of a |
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guardianship to another county filed before the effective date of |
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this Act is governed by the law in effect on the date the |
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application was filed, and the former law is continued in effect for |
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that purpose. |
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(c) The changes in law made by this Act to Sections 1104.154 |
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and 1104.205, Estates Code, apply only to a declaration executed on |
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or after the effective date of this Act. A declaration executed |
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before the effective date of this Act is governed by the law in |
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effect on the date the declaration was executed, and the former law |
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is continued in effect for that purpose. |
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(d) The changes in law made by this Act to Section |
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1301.1535, Estates Code, apply only to a management trust created |
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on or after the effective date of this Act. A management trust |
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created before the effective date of this Act is governed by the law |
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in effect on the date the management trust was created, and the |
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former law is continued in effect for that purpose. |
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(e) The changes in law made by this Act to Sections 1351.001 |
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and 1351.002, Estates Code, apply only to an application for the |
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sale of an interest in property of a minor filed on or after the |
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effective date of this Act. An application for the sale of an |
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interest in property of a minor that is filed before the effective |
|
date of this Act is governed by the law in effect on the date the |
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application was filed, and the former law is continued in effect for |
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that purpose. |
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(f) The changes in law made by this Act to Sections |
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1351.051, 1351.052, and 1351.053, Estates Code, apply only to an |
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application for the sale of an interest in property of a ward filed |
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on or after the effective date of this Act. An application for the |
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sale of an interest in property of a ward that is filed before the |
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effective date of this Act is governed by the law in effect on the |
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date the application was filed, and the former law is continued in |
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effect for that purpose. |
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SECTION 21. This Act takes effect September 1, 2015. |