By: Zaffirini S.B. No. 38

A BILL TO BE ENTITLED

AN ACT

relating to guardianships.

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

SECTION 1. Sections 404.0035(a) and (b), Estates Code, are amended to read as follows:

(a) The probate court, on the court's own motion, may remove an independent executor appointed under this subtitle after providing 30 days' written notice of the court's intent to remove the independent executor, by certified mail, return receipt requested, to the independent executor's last known address and to the last known address of the independent executor's attorney of record, if the independent executor:

(1) neglects to qualify in the manner and time required by law; [or]

(2) fails to return, before the 91st day after the date the independent executor qualifies, either an inventory of the estate property and a list of claims that have come to the independent executor's knowledge or an affidavit in lieu of the inventory, appraisement, and list of claims, unless that deadline is extended by court order; or

(3) the independent executor fails to timely file the affidavit or certificates required by Section 308.004.

(b) The probate court, on its own motion or on motion of any interested person, after the independent executor has been cited by personal service to answer at a time and place fixed in the notice, may remove an independent executor when:

(1) the independent executor fails to make an accounting which is required by law to be made;

(2) [the independent executor fails to timely file the affidavit or certificate required by Section 308.004;

[(3)] the independent executor is proved to have been guilty of gross misconduct or gross mismanagement in the performance of the independent executor's duties;

(3) [(4)] the independent executor becomes an incapacitated person, or is sentenced to the penitentiary, or from any other cause becomes legally incapacitated from properly performing the independent executor's fiduciary duties; or

(4) [(5)] the independent executor becomes incapable of properly performing the independent executor's fiduciary duties due to a material conflict of interest.

SECTION 2. Section 1023.003, Estates Code, is amended to read as follows:

Sec. 1023.003. [APPLICATION FOR] TRANSFER OF GUARDIANSHIP TO ANOTHER COUNTY. (a) When a guardian or any other person desires to transfer the transaction of the business of the guardianship from one county to another, the person shall file a written application in the court in which the guardianship is pending stating the reason for the transfer.

(b) The court in which a guardianship is pending may on its own motion and with notice transfer the transaction of the business of the guardianship from one county to another of the ward is residing in the county to which the transfer is to be made.

SECTION 3. Sections 1032.004(a) and (b), Estates Code, are amended to read as follows:

(a) On filing an application to transfer a guardianship to another county or on notice by the court of intention to transfer a guardianship to another county, the sureties on the bond of the guardian shall be cited by personal service to appear and show cause why the guardianship should not be transferred [application should not be granted].

(b) If an application is filed by a person other than the guardian or a notice is given by the court, the guardian shall be cited by personal service to appear and show cause why the application should not be granted.

SECTION 4. Sections 1203.052, Estates Code, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows:

(a) The court may remove a guardian:

(1) on the court's own motion after the guardian has been notified by certified mail, return receipt requested;[,] or

(2) on the complaint of an interested person, after the guardian has been cited by personal service to answer at a time and place set in the citation.

(a-1) The court may remove a guardian only [notice,] if:

(1) sufficient grounds appear to support a belief that the guardian has misapplied, embezzled, or removed from the state, or is about to misapply, embezzle, or remove from the state, any of the property entrusted to the guardian's care;

(2) the guardian fails to return any account or report that is required by law to be made;

(3) the guardian fails to obey a proper order of the court that has jurisdiction with respect to the performance of the guardian's duties;

(4) the guardian is proved to have been guilty of gross misconduct or mismanagement in the performance of the guardian's duties;

(5) the guardian:

(A) becomes incapacitated;

(B) is sentenced to the penitentiary; or

(C) from any other cause, becomes incapable of properly performing the duties of the guardian's trust;

(6) the guardian has engaged in conduct with respect to the ward that would be considered to be abuse, neglect, or exploitation, as those terms are defined by Section 48.002, Human Resources Code, if engaged in with respect to an elderly or disabled person, as defined by that section;

(7) the guardian neglects to educate or maintain the ward as liberally as the means of the ward's estate and the ward's ability or condition permit;

(8) the guardian interferes with the ward's progress or participation in programs in the community;

(9) the guardian fails to comply with the requirements of Subchapter G, Chapter 1104;

(10) the court determines that, because of the dissolution of the joint guardians' marriage, the termination of the guardians' joint appointment and the continuation of only one of the joint guardians as the sole guardian is in the best interest of the ward; or

(11) the guardian would be ineligible for appointment as a guardian under Subchapter H, Chapter 1104.

SECTION 5. This Act takes effect September 1, 2017.