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A BILL TO BE ENTITLED
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AN ACT
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relating to guardianships for persons who have physical |
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disabilities or who are incapacitated. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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ESTATES CODE |
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SECTION 1. Section 1055.003, Estates Code, is amended as |
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follows: |
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Sec. 1055.003. INTERVENTION BY INTERESTED PERSON. (a) |
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Notwithstanding the Texas Rules of Civil Procedure, an interested |
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person may intervene in a guardianship proceeding only by filing a |
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timely motion to intervene that is served on the parties. |
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(b) The motion must state the grounds for intervention in |
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the proceeding and be accompanied by a pleading that sets out the |
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purpose for which intervention is sought. |
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(c) The provisions of Subsections (a) and (b) do not apply |
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to any person who would be entitled to notice of the filing of the |
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guardianship application pursuant to Section 1051.104 of this code. |
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SECTION 2. Section 1102.002, Estates Code, is amended as |
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follows: |
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Sec. 1102.002. CONTENTS OF APPLICATION FOR GUARDIANSHIP; |
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CONFIDENTIALITY OF CERTAIN ADDRESSES. An application filed under |
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Section 1101.001 may omit the address of a person named in the |
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application if: |
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(1) The application states that the person is or was |
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protected by a protective order issued under Chapter 85, Family |
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Code; |
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SECTION 3. Section 1357.056, Estates Code is amended as |
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follows: |
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Sec. 1357.056. FORM OF SUPPORTED DECISION-MAKING |
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AGREEMENT. |
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IMPORTANT INFORMATION FOR SUPPORTER |
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Supporter's Duties |
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When you accept the authority granted to a supporter |
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under this supported decision-making agreement, you |
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establish a "fiduciary" relationship with the adult |
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with a disability who executes the agreement. This is a |
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special legal relationship that imposes on you legal |
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duties that continue until the agreement is terminated |
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by either party, by the terms of the agreement, or by |
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operation of law. A fiduciary duty generally includes |
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the duty to: |
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(1) act in good faith; |
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(2) do nothing beyond the authority granted in this |
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agreement; |
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(3) act loyally for the benefit of the adult with a |
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disability making the agreement; |
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(4) disclose to the adult with a disability pertinent |
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information affecting that person; and |
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(5) avoid conflicts that would impair your ability to |
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act in the best interest of the person executing the agreement. |
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Termination of Agent's Authority |
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You must stop acting as a supporter on behalf of the |
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adult with a disability if you learn of any event that |
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terminates this agreement or your authority to act |
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under it. An event that terminates this agreement or |
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your authority to act under it includes: |
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(1) the termination of the agreement by either you or |
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the adult with a disability; |
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(2) the appointment and qualification of a guardian of |
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the person or estate; |
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(3) if the Texas Department of Family and Protective |
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Services finds that the adult with a disability has been abused, |
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neglected or exploited by you; or you are found criminally liable |
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for conduct involving the adult with a disability. |
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SECTION 4. Section 1357.101, Estates Code is amended as |
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follows: |
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Sec. 1357.101. RELIANCE ON AGREEMENT; LIMITATION OF |
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LIABILITY. |
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(c) A supporter in a supported decision making agreement is |
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in a fiduciary relationship with the adult with a disability who |
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enters into the agreement, and owes to the adult with a disability |
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those duties stated in the form set forth in Section 1357.056. |
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SECTION 5. Section 752.051, Estates Code, is amended as |
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follows: |
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Sec. 752.051. FORM OF STATUTORY DURABLE POWER OF ATTORNEY. |
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If any agent named by me dies, becomes legally |
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disabled, resigns, or refuses to act, or is removed by |
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a court of competent jurisdiction, I name the |
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following (each to act alone and successively, in the |
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order named) as successor(s) to that agent: |
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____________________________________________________ |
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_______. |
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SECTION 6. Section 752.052, Estates Code, is amended as |
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follows: |
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Sec. 752.052. RELATION OF ATTORNEY-IN-FACT TO |
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COURT-APPOINTED GUARDIAN OF ESTATE. |
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(a) The appointment by a court in a guardianship proceeding |
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in Texas of a temporary or permanent guardian of the estate for a |
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ward who is the principal under a statutory durable power of |
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attorney automatically revokes all powers and authority granted to |
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each agent or attorney-in-fact named in the power of attorney, |
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unless the court in the guardianship proceeding enters an order |
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that: |
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(1) affirms and states the effectiveness of the power |
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of attorney; and |
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(2) confirms the validity of the appointment of the |
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named agent or attorney-in-fact. |
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SECTION 7. Subtitle P, Chapter 753, Section 753.001, |
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Estates Code is added as follows: |
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Sec. 753.001. REMOVAL OF ATTORNEY-IN FACT. |
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(a) The following persons may file a petition to remove the |
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currently serving attorney-in-fact named in a durable power of |
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attorney and appoint a successor attorney-in-fact who is named in |
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the durable power of attorney: |
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(1) any person named as a successor attorney-in-fact |
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in the durable power of attorney; or |
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(2) as a least restrictive alternative to |
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guardianship, any interested person (including an attorney |
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ad-litem or guardian ad-litem) in a guardianship proceeding. |
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(b) An attorney-in-fact may be removed on the petition of an |
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interested person, and after hearing, a court may, in its |
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discretion, remove an attorney-in-fact and deny part or all of the |
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attorney-in-fact's compensation, if allowed by the terms of the |
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power of attorney, if: |
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(1) the court finds that the attorney-in-fact has |
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breached his or her fiduciary duties to the principal; |
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(2) the court finds that the attorney-in-fact has |
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materially violated or attempted to violate the terms of the |
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durable power of attorney and the violation or attempted violation |
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results in a material financial loss to the principal; |
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(3) the attorney-in-fact becomes incapacitated or is |
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otherwise incapable of properly performing his or her duties; |
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(4) the attorney-in-fact fails to make an accounting |
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that is required by law or by the terms of the power of attorney or |
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as ordered by the court; or |
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(5) the court finds other cause for removal. |
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(c) A cause of action brought under subsection (a) may be |
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filed in any court with original probate jurisdiction. |
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SECTION 8. Subtitle P, Chapter 753, Section 753.002, |
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Estates Code is added as follows: |
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Sec. 753.002. APPOINTMENT OF DESIGNATED SUCCESSOR |
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ATTORNEY-IN FACT. |
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(a) If a person currently serving as an attorney-in-fact |
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under a durable power of attorney is removed pursuant to Section |
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753.001 of this code, the court shall not authorize the appointment |
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of any successor attorney-in-fact named in the durable power of |
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attorney unless the court enters findings that such person is |
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qualified and capable of properly performing his or her duties to |
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the principal, pursuant to the terms of the durable power of |
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attorney and other applicable law. |
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(b) Within twenty-one days after entry of an order removing |
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an attorney-in-fact, pursuant to Section 753.001, and appointing a |
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successor attorney-in-fact, as provided in this subsection (a), the |
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successor attorney-in-fact shall provide actual notice of such |
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order to all appropriate third-parties who the attorney-in-fact has |
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reason to believe have relied, or may rely, on the durable power of |
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attorney. |