84R1627 MTB-F

By: Thompson of Harris H.B. No. 1438

A BILL TO BE ENTITLED

AN ACT

relating to guardianships and other matters related to incapacitated persons.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 1023.005, Estates Code, is amended to read as follows:

Sec. 1023.005. COURT ACTION. [(a)] On hearing an application under Section 1023.003, if good cause is not shown to deny the application and it appears that transfer of the guardianship is in the best interests of the ward, the court shall enter an order:

(1) authorizing the transfer on payment on behalf of the estate of all accrued costs; and

(2) requiring that any existing bond of the guardian must remain in effect until a new bond has been given or a rider has been filed in accordance with Section 1023.010.

[(b) In an order entered under Subsection (a), the court shall require the guardian, not later than the 20th day after the date the order is entered, to:

[(1) give a new bond payable to the judge of the court to which the guardianship is transferred; or

[(2) file a rider to an existing bond noting the court to which the guardianship is transferred.]

SECTION 2. Section 1023.010, Estates Code, is amended to read as follows:

Sec. 1023.010. REVIEW OF TRANSFERRED GUARDIANSHIP. (a) Not later than the 90th day after the date the transfer of the guardianship takes effect under Section 1023.007, the court to which the guardianship was transferred shall hold a hearing to consider modifying the rights, duties, and powers of the guardian or any other provisions of the transferred guardianship.

(b) After the hearing described by Subsection (a), the court to which the guardianship was transferred shall enter an order requiring the guardian to:

(1) give a new bond payable to the judge of the court to which the guardianship was transferred; or

(2) file a rider to an existing bond noting the court to which the guardianship was transferred.

SECTION 3. Section 1051.104(a), Estates Code, is amended to read as follows:

(a) The person filing an application for guardianship shall mail a copy of the application and a notice containing the information required in the citation issued under Section 1051.102 by registered or certified mail, return receipt requested, or by any other form of mail that provides proof of delivery, to the following persons, if their whereabouts are known or can be reasonably ascertained:

(1) each adult child of the proposed ward;

(2) each adult sibling of the proposed ward;

(3) the administrator of a nursing home facility or similar facility in which the proposed ward resides;

(4) the operator of a residential facility in which the proposed ward resides;

(5) a person whom the applicant knows to hold a power of attorney signed by the proposed ward;

(6) a person designated to serve as guardian of the proposed ward by a written declaration under Subchapter E, Chapter 1104, if the applicant knows of the existence of the declaration;

(7) a person designated to serve as guardian of the proposed ward in the probated will of the last surviving parent of the proposed ward;

(8) a person designated to serve as guardian of the proposed ward by a written declaration of the proposed ward's last surviving parent, if the declarant is deceased and the applicant knows of the existence of the declaration; and

(9) each adult [person] named [as another relative within the third degree by consanguinity] in the application as an "other living relative" of the proposed ward within the third degree by consanguinity, as required by Section 1101.001(b)(11) or (13), if the proposed ward's spouse and each of the proposed ward's parents, adult siblings, and adult children are deceased or there is no spouse, parent, adult sibling, or adult child.

SECTION 4. Section 1052.001(a), Estates Code, is amended to read as follows:

(a) The county clerk shall maintain a record book titled "Judge's Guardianship Docket" and shall record in the book:

(1) the name of each person with respect to whom, or with respect to whose estate, a proceeding is commenced or sought to be commenced;

(2) the name of the guardian of the estate or person or of the applicant for letters of guardianship;

(3) the date each original application for a guardianship proceeding is filed;

(4) a notation of each order, judgment, decree, and proceeding that occurs in each guardianship [estate], including the date it occurs; and

(5) the docket number of each guardianship as assigned under Subsection (b).

SECTION 5. Section 1052.051(f), Estates Code, is amended to read as follows:

(f) After the creation of a guardianship, a person or entity is entitled to be reimbursed for a filing fee described by Subsection (d), other than a deposit for payment to an attorney ad litem, from:

(1) the guardianship estate;

(2) the management trust, if a management trust has been created for the benefit of the ward under Chapter 1301 and the court determines it is in the ward's best interest; or

(3) [(2)] the county treasury, if the assets of the guardianship estate or management trust, as appropriate, are [is] insufficient to pay the amount of the filing fee.

SECTION 6. Section 1101.001, Estates Code, is amended by adding Subsection (c) to read as follows:

(c) For purposes of this section, a proposed ward's relatives within the third degree by consanguinity include the proposed ward's:

(1) grandparent or grandchild; and

(2) great-grandparent, great-grandchild, aunt who is a sister of a parent of the proposed ward, uncle who is a brother of a parent of the proposed ward, nephew who is a child of a brother or sister of the proposed ward, or niece who is a child of a brother or sister of the proposed ward.

SECTION 7. Subchapter D, Chapter 1101, Estates Code, is amended by adding Section 1101.156 to read as follows:

Sec. 1101.156. REQUIRED DEPOSIT OF ESTATE ASSETS. (a) Before an order appointing a guardian is entered, or in such an order, a court may require the deposit of cash, securities, or other assets of a proposed ward or ward in a financial institution described by Section 1105.155(b) for safekeeping.

(b) The amount of the bond required to be given by the guardian under Section 1105.101 shall be reduced in proportion to the amount of the cash or the value of the securities or other assets deposited under this section.

SECTION 8. Section 1102.005, Estates Code, is amended to read as follows:

Sec. 1102.005. COMPENSATION OF GUARDIAN AD LITEM. (a) Regardless of whether a guardianship is created for a proposed ward, a [A] court that appoints a guardian ad litem under Section 1102.001 may authorize compensation of the guardian ad litem from available funds of:

(1) the proposed ward's estate; or

(2) the management trust, if a management trust has been created for the benefit of the proposed ward under Chapter 1301[, regardless of whether a guardianship is created for the proposed ward].

(b) After examining the proposed ward's assets or the assets of any management trust created for the proposed ward's benefit under Chapter 1301, and determining that the proposed ward or the management trust is unable to pay for services provided by the guardian ad litem, the court may authorize compensation from the county treasury.

SECTION 9. Section 1104.154(a), Estates Code, is amended to read as follows:

(a) As an alternative to the self-proving affidavit authorized by Section 1104.153, a declaration of appointment of a guardian for the declarant's children in the event of the declarant's death or incapacity may be simultaneously executed, attested, and made self-proved by including the following in substantially the same form and with substantially the same contents:

I, _________________________, as declarant, after being duly sworn, declare to the undersigned witnesses and to the undersigned authority that this instrument is my Declaration of Appointment of Guardian for My Children in the Event of My Death or Incapacity, and that I willingly make [have made] and execute [executed] it for the purposes expressed in the declaration. I now sign this declaration in the presence of the attesting witnesses and the undersigned authority on this ____ day of ________, 20__.

___________________________

Declarant

The undersigned, _____________________ and ___________________, each being 14 years of age or older, after being duly sworn, declare to the declarant and to the undersigned authority that the declarant declared to us that this instrument is the declarant's Declaration of Appointment of Guardian for the Declarant's Children in the Event of Declarant's Death or Incapacity and that the declarant executed it for the purposes expressed in the declaration. The declarant then signed this declaration and we believe the declarant to be of sound mind. We now sign our names as attesting witnesses on this _____ day of ___________, 20___.

___________________________

Witness

___________________________

Witness

Subscribed and sworn to before me by the above named declarant, and affiants, this ____ day of __________________, 20__.

___________________________

Notary Public in and for the

State of Texas

My Commission expires:

___________________________

SECTION 10. Section 1104.205(a), Estates Code, is amended to read as follows:

(a) As an alternative to the self-proving affidavit authorized by Section 1104.204, a declaration of guardian in the event of later incapacity or need of guardian may be simultaneously executed, attested, and made self-proved by including the following in substantially the same form and with substantially the same contents:

I, _________________________, as declarant, after being duly sworn, declare to the undersigned witnesses and to the undersigned authority that this instrument is my Declaration of Guardian in the Event of Later Incapacity or Need of Guardian, and that I willingly make [have made] and execute [executed] it for the purposes expressed in the declaration. I now sign this declaration in the presence of the attesting witnesses and the undersigned authority on this ____ day of ________, 20__.

___________________________

Declarant

The undersigned, _____________________ and ___________________, each being 14 years of age or older, after being duly sworn, declare to the declarant and to the undersigned authority that the declarant declared to us that this instrument is the declarant's Declaration of Guardian in the Event of Later Incapacity or Need of Guardian and that the declarant executed it for the purposes expressed in the declaration. The declarant then signed this declaration and we believe the declarant to be of sound mind. We now sign our names as attesting witnesses on this _____ day of ___________, 20___.

___________________________

Witness

___________________________

Witness

Subscribed and sworn to before me by the above named declarant, and affiants, this ____ day of __________________, 20__.

__________________________

Notary Public in and for the

State of Texas

My Commission expires:

__________________________

SECTION 11. Section 1155.151(a), Estates Code, is amended to read as follows:

(a) In a guardianship proceeding, the court costs of the proceeding, including the cost of the guardians ad litem, attorneys ad litem, court visitor, mental health professionals, and interpreters appointed under this title, shall be set in an amount the court considers equitable and just and, except as provided by Subsection (c), shall be paid as follows, and the court shall issue the judgment accordingly:

(1) out of the guardianship estate;

(2) out of the management trust, if a management trust has been created for the benefit of the ward under Chapter 1301 and the court determines it is in the ward's best interest; [,] or

(3) out of the county treasury if the assets of the guardianship estate or management trust, as appropriate, are [is] insufficient to pay the cost[, and the court shall issue the judgment accordingly].

SECTION 12. Section 1203.202(c), Estates Code, is amended to read as follows:

(c) A successor guardian may:

(1) make himself or herself, and be made, a party to a suit prosecuted by or against the successor's predecessor;

(2) settle with the predecessor and receive and give a receipt for any portion of the estate property that remains in the predecessor's [successor's] possession; or

(3) commence a suit on the bond or bonds of the predecessor, in the successor's own name and capacity, for all the estate property that:

(A) came into the predecessor's possession; and

(B) has not been accounted for by the predecessor.

SECTION 13. Section 1253.051, Estates Code, is amended to read as follows:

Sec. 1253.051. APPLICATION FOR RECEIPT AND ACCEPTANCE OF FOREIGN GUARDIANSHIP. A guardian appointed by a foreign court to represent an incapacitated person who is residing in this state or intends to move to this state may file an application with a court in the county in which the ward resides or in which it is intended that the ward will [intends to] reside to have the guardianship transferred to that [the] court. The application must have attached a certified copy of all papers of the guardianship filed and recorded in the foreign court.

SECTION 14. Section 1301.1535, Estates Code, is amended to read as follows:

Sec. 1301.1535. INITIAL ACCOUNTING BY CERTAIN TRUSTEES REQUIRED. (a) This section applies only to a trustee of a management trust created for a person who [for whom a guardianship proceeding is pending] on the date the trust is created is:

(1) a ward under an existing guardianship; or

(2) a proposed ward with respect to whom an application for guardianship has been filed and is pending.

(b) Not later than the 30th day after the date a trustee to which this section applies receives property into the trust, the trustee shall file with the court that created the guardianship or the court in which the application for guardianship was filed [proceeding is pending] a report describing all property held in the trust on the date of the report and specifying the value of the property on that date.

SECTION 15. Section 1351.001, Estates Code, is amended to read as follows:

Sec. 1351.001. AUTHORITY TO SELL MINOR'S INTEREST IN PROPERTY WITHOUT GUARDIANSHIP. (a) A parent or managing conservator of a minor who is not a ward may apply to the court under this subchapter for an order to sell an interest of the minor in property without being appointed guardian if the net value of the interest does not exceed $100,000.

(b) If a minor who is not a ward does not have a parent or managing conservator willing or able to file an application under Subsection (a), the court may appoint an attorney ad litem or guardian ad litem to act on the minor's behalf for the limited purpose of applying for an order to sell the minor's interest in property under this subchapter.

SECTION 16. Sections 1351.002(a) and (b), Estates Code, are amended to read as follows:

(a) A parent, [or] managing conservator, or attorney ad litem or guardian ad litem appointed under Section 1351.001(b) shall apply to the court under oath for the sale of property under this subchapter.

(b) An application must contain:

(1) the minor's name;

(2) a legal description of the real property or a description that identifies the personal property, as applicable;

(3) the minor's interest in the property;

(4) the purchaser's name;

(5) a statement that the sale of the minor's interest in the property is for cash; and

(6) a statement that all money received from the sale of the minor's interest in the property [by the parent or managing conservator] shall be used for the minor's use and benefit.

SECTION 17. Section 1351.051, Estates Code, is amended to read as follows:

Sec. 1351.051. APPLICABILITY OF SUBCHAPTER. This subchapter applies only to a ward who has:

(1) a guardian of the person but does not have a guardian of the estate; or

(2) a guardian of the estate appointed by a foreign court.

SECTION 18. Section 1351.052, Estates Code, is amended to read as follows:

Sec. 1351.052. AUTHORITY TO SELL WARD'S INTEREST IN PROPERTY WITHOUT APPOINTMENT AS GUARDIAN OF THE ESTATE IN THIS STATE. A guardian of the person of a ward or a guardian of the estate of a ward appointed by a foreign court may apply to the court under this subchapter for an order to sell an interest in property in the ward's estate without being appointed guardian of the ward's estate in this state if the net value of the interest does not exceed $100,000.

SECTION 19. Section 1351.053(b), Estates Code, is amended to read as follows:

(b) For purposes of Subsection (a)(2), references in Section 1351.002(b) to[:

[(1)] "minor" are replaced with references to "ward." ["ward"; and

[(2) "parent or managing conservator" are replaced with references to "guardian of the person."]

SECTION 20. (a) Except as otherwise provided by this section, the changes in law made by this Act apply to:

(1) a guardianship created before, on, or after the effective date of this Act; and

(2) an application for a guardianship pending on, or filed on or after, the effective date of this Act.

(b) The changes in law made by this Act to Sections 1023.005 and 1023.010, Estates Code, apply only to an application for the transfer of a guardianship to another county filed on or after the effective date of this Act. An application for the transfer of a guardianship to another county 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 1104.154 and 1104.205, Estates Code, apply only to a declaration executed on or after the effective date of this Act. A declaration executed before the effective date of this Act is governed by the law in effect on the date the declaration was executed, and the former law is continued in effect for that purpose.

(d) The changes in law made by this Act to Section 1301.1535, Estates Code, apply only to a management trust created on or after the effective date of this Act. A management trust created before the effective date of this Act is governed by the law in effect on the date the management trust was created, and the former law is continued in effect for that purpose.

(e) The changes in law made by this Act to Sections 1351.001 and 1351.002, Estates Code, apply only to an application for the sale of an interest in property of a minor filed on or after the effective date of this Act. An application for the sale of an 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 application was filed, and the former law is continued in effect for that purpose.

(f) The changes in law made by this Act to Sections 1351.051, 1351.052, and 1351.053, Estates Code, apply only to an application for the sale of an interest in property of a ward filed on or after the effective date of this Act. An application for the sale of an interest in property of a ward 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.

SECTION 21. This Act takes effect September 1, 2015.