84R14432 CLG-F

By: Klick H.B. No. 3914

A BILL TO BE ENTITLED

AN ACT

relating to certain court-initiated guardianship proceedings involving individuals believed to be incapacitated persons including the appointment of a guardian ad litem or court investigator.

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

SECTION 1. Section 1102.001, Estates Code, is amended to read as follows:

Sec. 1102.001. COURT-INITIATED INVESTIGATION. (a) If a court has probable cause to believe that a person domiciled or found in the county in which the court is located is an incapacitated person, and the person does not have a guardian in this state, the court shall appoint a guardian ad litem or court investigator to investigate the person's conditions and circumstances to determine whether:

(1) the person is an incapacitated person; and

(2) a guardianship is necessary.

(b) If a court appoints a guardian ad litem or court investigator under Subsection (a):

(1) the person believed to be incapacitated may petition the court to have the appointment set aside;

(2) the court's order appointing a guardian ad litem or court investigator must include a statement that the person believed to be incapacitated has the right to petition the court to have the appointment set aside;

(3) not later than the 48th hour after the hour the court issues the order appointing a guardian ad litem or court investigator, the guardian ad litem or court investigator, as appropriate, shall provide a copy of the order to and discuss the contents of the order with the person believed to be incapacitated; and

(4) within a reasonable time after the court issues the order appointing a guardian ad litem or court investigator, the court shall hold a preliminary hearing to determine whether there is a need for further investigation.

SECTION 2. Section 1102.002, Estates Code, is amended to read as follows:

Sec. 1102.002. ESTABLISHMENT OF PROBABLE CAUSE FOR INVESTIGATION. (a) To establish probable cause under Section 1102.001, the court shall [may require]:

(1) require:

(A) an affidavit [information letter about the person believed to be incapacitated that is] submitted by an interested person that alleges facts about the person believed to be incapacitated that, if true, satisfy a requirement [and satisfies the requirements] of Section 1002.017(1) or 1002.017(2), as applicable [1102.003]; or

(B) [(2)] a written letter or certificate from a physician who has examined the person alleged [believed] to be incapacitated that satisfies the requirements of Section 1101.103, except that the letter must be:

(i) [(A)] dated not earlier than the 120th day before the date of the appointment of a guardian ad litem or court investigator under Section 1102.001; and

(ii) [(B)] based on an examination the physician performed not earlier than the 120th day before that date; and

(2) subject to Subsection (b), conduct a preliminary hearing at which any interested person may offer evidence, including oral or written testimony, regarding the condition and circumstances of the person alleged to be incapacitated.

(b) A preliminary hearing under Subsection (a)(2) must be held:

(1) after the date of the physician's letter or certificate under Subsection (a)(1)(B), if applicable; and

(2) not later than the 30th day before the date of the appointment of a guardian ad litem or court investigator under Section 1102.001.

SECTION 3. Section 1102.003, Estates Code, is repealed.

SECTION 4. The changes in law made by this Act apply to a guardianship proceeding commenced on or after the effective date of this Act. A guardianship proceeding commenced before that date is governed by the law in effect on the date the proceeding was commenced, and the former law is continued in effect for that purpose.

SECTION 5. This Act takes effect January 1, 2016.