By: Zaffirini S.B. No. 1325

(Thompson of Harris)

A BILL TO BE ENTITLED

AN ACT

relating to authorizing counties to establish public guardians to serve as guardians for certain incapacitated persons.

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

SECTION 1. Chapter 1002, Estates Code, is amended by adding Sections 1002.0215 and 1002.0265 to read as follows:

Sec. 1002.0215. OFFICE OF PUBLIC GUARDIAN. "Office of public guardian" means an office of public guardian established by the commissioners court of a county under Subchapter G-1, Chapter 1104.

Sec. 1002.0265. PUBLIC GUARDIAN. "Public guardian" means a person:

(1) appointed to administer an office of public guardian by the commissioners court of a county under Subchapter G-1, Chapter 1104; or

(2) with which one or more counties enter into an agreement under Section 1104.327(a)(2) or (d).

SECTION 2. Section 1104.251(a), Estates Code, is amended to read as follows:

(a) An individual must be certified under Subchapter C, Chapter 155, Government Code, if the individual:

(1) is a private professional guardian;

(2) will represent the interests of a ward as a guardian on behalf of a private professional guardian;

(3) is providing guardianship services to a ward of a guardianship program on the program's behalf, except as provided by Section 1104.254; [or]

(4) is an employee of the Health and Human Services Commission [Department of Aging and Disability Services] providing guardianship services to a ward of the commission;

(5) is a public guardian; or

(6) will represent the interests of a ward as a guardian on behalf of a public guardian [department].

SECTION 3. Chapter 1104, Estates Code, is amended by adding Subchapter G-1 to read as follows:

SUBCHAPTER G-1. PUBLIC GUARDIANS

Sec. 1104.326. DEFINITION. In this subchapter, unless the context otherwise requires, "office" means an office of public guardian established under this subchapter.

Sec. 1104.327. ESTABLISHMENT OF OFFICES; PUBLIC GUARDIANS. (a) The commissioners court of a county by order may:

(1) create an office of public guardian to provide guardianship services to incapacitated persons described by Section 1104.334; or

(2) enter into an agreement with a person operating a nonprofit guardianship program or private professional guardianship program located in the county or in an adjacent county to act as a public guardian by providing guardianship services to incapacitated persons described by Section 1104.334.

(b) Subject to Subsection (c) and Section 1104.328, the commissioners court of a county shall appoint an individual as public guardian to administer the office of public guardian established under Subsection (a)(1) and may employ or authorize the public guardian to employ personnel necessary to perform the duties of the office, including personnel who will represent the interests of a ward as a guardian on behalf of the office if approved by the commissioners court.

(c) The commissioners court of a county may appoint an individual as public guardian under Subsection (b) on a part-time basis with appropriate compensation if:

(1) the commissioners court determines a full-time appointment does not serve the needs of the county; and

(2) the individual who is appointed on a part-time basis is not employed in or does not hold another position that presents a conflict of interest.

(d) The commissioners courts of two or more counties may collectively enter into an agreement:

(1) to create and fund an office of public guardian for purposes of Subsection (a)(1) and to appoint the same individual as public guardian to that office under Subsection (b); or

(2) with a person operating a guardianship program described by Subsection (a)(2) to serve as a public guardian for purposes of that subdivision.

(e) An individual appointed as public guardian under Subsection (b) serves a term of five years.

Sec. 1104.328. QUALIFICATIONS OF PUBLIC GUARDIAN. To be appointed as public guardian under Section 1104.327(b), an individual must:

(1) be a licensed attorney or be certified under Subchapter C, Chapter 155, Government Code; and

(2) have demonstrable guardianship experience.

Sec. 1104.329. CONFLICT OF INTEREST. (a) Except as provided by Subsection (b), an office or public guardian must be independent from providers of services to wards and proposed wards and may not directly provide housing, medical, legal, or other direct, non-surrogate decision-making services to a ward or proposed ward, unless approved by the court.

(b) An office or public guardian may provide money management services described by Section 531.125, Government Code, or other representative payee services to a ward or proposed ward.

Sec. 1104.330. COMPENSATION. A person appointed or acting as public guardian under Section 1104.327 shall receive compensation as set by the commissioners court and is not entitled to compensation under Subchapter A, Chapter 1155, unless approved by the court.

Sec. 1104.331. BOND REQUIREMENT. (a) A public guardian shall file with the court clerk a general bond in an amount fixed by the commissioners court payable to the county and issued by a surety company approved by the county judge. The bond must be conditioned on the faithful performance by the person of the person's duties and, if the public guardian administers an office, the office's duties.

(b) The bond required by this section satisfies any bond required under Chapter 1105.

Sec. 1104.332. VACANCY. If an individual appointed as public guardian under Section 1104.327(b) vacates the position, the commissioners court shall appoint, subject to Section 1104.328, an individual to serve as public guardian for the unexpired term.

Sec. 1104.333. POWERS AND DUTIES. (a) An office or public guardian shall:

(1) if applicable, evaluate the financial status of a proposed ward to determine whether the proposed ward is eligible to have the office or public guardian appointed guardian of the ward under Section 1104.334(a)(2)(A); and

(2) serve as guardian of the person or of the estate of a ward, or both, on appointment by a court in accordance with the requirements of this title.

(b) In connection with a financial evaluation under Subsection (a)(1) and on the request of an office or public guardian, a court with jurisdiction over the guardianship proceeding may order the release of public and private records, including otherwise confidential records, to the office or public guardian.

(c) Notwithstanding Section 552.261, Government Code, a state agency may not charge an office or public guardian for providing the office or public guardian with a copy of public information requested from the agency by the office or public guardian.

Sec. 1104.334. APPOINTMENT OF OFFICE OR PUBLIC GUARDIAN AS GUARDIAN. (a) In accordance with applicable law, including Subchapter C, Chapter 1101, a court may appoint an office or public guardian to serve as guardian of the person or of the estate of a ward, or both, if:

(1) on the date the guardianship application is filed, the ward resides in or is located in the county served by the office or public guardian; and

(2) the court finds that:

(A) the ward does not have sufficient assets or other resources to pay a private professional guardian to serve as the ward's guardian;

(B) the ward does not have a family member, friend, or other suitable person or entity willing and able to serve as the ward's guardian; or

(C) the appointment of an office or public guardian is in the ward's best interest.

(b) For purposes of Subsection (a)(2)(A), the determination of a ward's ability to pay a private professional guardian is dependent on:

(1) the nature, extent, and liquidity of the ward's assets;

(2) the ward's disposable net income, including income of a recipient of medical assistance that is used to pay expenses under Section 1155.202(a);

(3) the nature of the guardianship;

(4) the type, duration, and complexity of services required by the ward; and

(5) additional, foreseeable expenses.

(c) The number of appointments of an office under this section may not exceed 35 wards for each guardian representing the interests of wards on behalf of the office.

(d) If each guardian representing the interests of wards on behalf of an office reaches the limitation provided by Subsection (c), the office shall immediately give notice to the courts.

Sec. 1104.335. CONFIDENTIALITY AND DISCLOSURE OF INFORMATION. (a) All files, reports, records, communications, or working papers used or developed by an office or public guardian in the performance of duties relating to a financial evaluation under Section 1104.333(a)(1) or the provision of guardianship services are confidential and not subject to disclosure under Chapter 552, Government Code.

(b) Confidential information may be disclosed only for a purpose consistent with this subchapter, as required by other state or federal law, or as necessary to enable an office or public guardian to exercise the powers and duties as guardian of the person or of the estate of a ward, or both.

(c) A court on its own motion or on the motion of an interested person may order disclosure of confidential information only if:

(1) a hearing on the motion is conducted;

(2) notice of the hearing is served on the office or public guardian and each interested person; and

(3) the court determines after the hearing and an in camera review of the information that disclosure is essential to the administration of justice and will not endanger the life or safety of any individual who:

(A) is being assessed for guardianship services;

(B) is a ward of the office or public guardian; or

(C) provides services to a ward of the office or public guardian.

(d) The Office of Court Administration of the Texas Judicial System shall establish policies and procedures for the exchange of information between offices, public guardians, and other appropriate governmental entities, as necessary for offices, public guardians, and governmental entities to properly execute their respective duties and responsibilities relating to guardianship services or other needed services for a ward. An exchange of information under this subsection does not constitute a release for purposes of waiving the confidentiality of the information exchanged.

(e) To the extent consistent with policies and procedures adopted by an office or public guardian, the office or public guardian on request may release confidential information in the record of an individual who is a former ward of the office or public guardian to:

(1) the individual;

(2) the individual's guardian; or

(3) an executor or administrator of the individual's estate.

(f) Before releasing confidential information under Subsection (e), an office or public guardian shall edit the information to protect the identity of any individual whose life or safety may be endangered by the release. A release of information under Subsection (e) does not constitute a release for purposes of waiving the confidentiality of the information released.

Sec. 1104.336. CERTAIN ADMINISTRATIVE COSTS. (a) If an office or public guardian is appointed guardian of the person or of the estate of a ward, or both, the administrative costs of the guardianship services provided to the ward may not be charged to the ward's estate unless the court determines, subject to Subsection (b), that the ward is financially able to pay all or part of the costs.

(b) A court shall measure a ward's ability to pay for costs under Subsection (a) by whether the ward has sufficient assets or other resources to pay a private professional guardian to serve as the ward's guardian in accordance with Section 1104.334(b).

Sec. 1104.337. OFFICE OF COURT ADMINISTRATION OF THE TEXAS JUDICIAL SYSTEM; REPORT. (a) Not later than December 1 of each even-numbered year, the Office of Court Administration of the Texas Judicial System shall submit a report to the governor and the legislature that contains an evaluation of public guardians established under this subchapter, including the establishment and operation of offices of public guardians under this subchapter and the provision of guardianship services by the offices. The report must include:

(1) an analysis of costs and offsetting savings or other benefits to the state as a result of the establishment and operation of offices and public guardians under this subchapter; and

(2) recommendations for legislation, if any.

(b) If it is cost-effective and feasible, the Office of Court Administration of the Texas Judicial System may contract with an appropriate research or public policy entity with expertise in gerontology, disabilities, and public administration to conduct the analysis described by Subsection (a)(1).

Sec. 1104.338. RULES. The supreme court, in consultation with the Office of Court Administration of the Texas Judicial System and the presiding judge of the statutory probate courts elected under Section 25.0022, Government Code, shall adopt rules necessary to implement this subchapter.

SECTION 4. Section 1104.402(a), Estates Code, is amended to read as follows:

(a) Except as provided by Section 1104.403, 1104.404, or 1104.406(a), the clerk of the county having venue of the proceeding for the appointment of a guardian shall obtain criminal history record information that is maintained by the Department of Public Safety or the Federal Bureau of Investigation identification division relating to:

(1) a private professional guardian;

(2) each person who represents or plans to represent the interests of a ward as a guardian on behalf of the private professional guardian;

(3) each person employed by a private professional guardian who will:

(A) have personal contact with a ward or proposed ward;

(B) exercise control over and manage a ward's estate; or

(C) perform any duties with respect to the management of a ward's estate;

(4) each person employed by or volunteering or contracting with a guardianship program to provide guardianship services to a ward of the program on the program's behalf; [or]

(5) a public guardian appointed under Section 1104.327(b);

(6) each person who represents or plans to represent the interests of a ward as a guardian on behalf of an office of public guardian;

(7) each person employed by an office of public guardian who will:

(A) have personal contact with a ward or proposed ward;

(B) exercise control over and manage a ward's estate; or

(C) perform any duties with respect to the management of a ward's estate; or

(8) any other person proposed to serve as a guardian under this title, including a proposed temporary guardian and a proposed successor guardian, other than an attorney.

SECTION 5. Section 1104.409, Estates Code, is amended to read as follows:

Sec. 1104.409. USE OF INFORMATION BY COURT. The court shall use the information obtained under this subchapter only in determining whether to:

(1) appoint, remove, or continue the appointment of a private professional guardian, a guardianship program, an office of public guardian, or the Health and Human Services Commission [department]; or

(2) appoint any other person proposed to serve as a guardian under this title, including a proposed temporary guardian and a proposed successor guardian, other than an attorney.

SECTION 6. Section 1155.151(a-2), Estates Code, is amended to read as follows:

(a-2) Notwithstanding any other law requiring the payment of court costs in a guardianship proceeding, the following are not required to pay court costs on the filing of or during a guardianship proceeding:

(1) an attorney ad litem;

(2) a guardian ad litem;

(3) a person or entity who files an affidavit of inability to pay the costs under Rule 145, Texas Rules of Civil Procedure, that shows the person or entity is unable to afford the costs;

(4) a nonprofit guardianship program;

(5) a governmental entity, including an office of public guardian; and

(6) a government agency or nonprofit agency providing guardianship services.

SECTION 7. Section 1163.005(a), Estates Code, is amended to read as follows:

(a) The guardian of the estate shall attach to an account the guardian's affidavit stating:

(1) that the account contains a correct and complete statement of the matters to which the account relates;

(2) that the guardian has paid the bond premium for the next accounting period;

(3) that the guardian has filed all tax returns of the ward due during the accounting period;

(4) that the guardian has paid all taxes the ward owed during the accounting period, the amount of the taxes, the date the guardian paid the taxes, and the name of the governmental entity to which the guardian paid the taxes; and

(5) if the guardian is a private professional guardian, a guardianship program, an office of public guardian, or the Health and Human Services Commission [Department of Aging and Disability Services], whether the guardian or an individual certified under Subchapter C, Chapter 155 [111], Government Code, who is providing guardianship services to the ward and who is swearing to the account on the guardian's behalf, is or has been the subject of an investigation conducted by the Judicial Branch [Guardianship] Certification Commission [Board] during the accounting period.

SECTION 8. Section 1163.101(c), Estates Code, is amended to read as follows:

(c) The guardian of the person shall file a sworn affidavit that contains:

(1) the guardian's current name, address, and telephone number;

(2) the ward's date of birth and current name, address, telephone number, and age;

(3) a description of the type of home in which the ward resides, which shall be described as:

(A) the ward's own home;

(B) a nursing home;

(C) a guardian's home;

(D) a foster home;

(E) a boarding home;

(F) a relative's home, in which case the description must specify the relative's relationship to the ward;

(G) a hospital or medical facility; or

(H) another type of residence;

(4) statements indicating:

(A) the length of time the ward has resided in the present home;

(B) the reason for a change in the ward's residence, if a change in the ward's residence has occurred in the past year;

(C) the date the guardian most recently saw the ward;

(D) how frequently the guardian has seen the ward in the past year;

(E) whether the guardian has possession or control of the ward's estate;

(F) whether the ward's mental health has improved, deteriorated, or remained unchanged during the past year, including a description of the change if a change has occurred;

(G) whether the ward's physical health has improved, deteriorated, or remained unchanged during the past year, including a description of the change if a change has occurred;

(H) whether the ward has regular medical care; and

(I) the ward's treatment or evaluation by any of the following persons during the past year, including the person's name and a description of the treatment:

(i) a physician;

(ii) a psychiatrist, psychologist, or other mental health care provider;

(iii) a dentist;

(iv) a social or other caseworker; or

(v) any other individual who provided treatment;

(5) a description of the ward's activities during the past year, including recreational, educational, social, and occupational activities, or a statement that no activities were available or that the ward was unable or refused to participate in activities;

(6) the guardian's evaluation of:

(A) the ward's living arrangements as excellent, average, or below average, including an explanation if the conditions are below average;

(B) whether the ward is content or unhappy with the ward's living arrangements; and

(C) unmet needs of the ward;

(7) a statement indicating whether the guardian's power should be increased, decreased, or unaltered, including an explanation if a change is recommended;

(8) a statement indicating that the guardian has paid the bond premium for the next reporting period;

(9) if the guardian is a private professional guardian, a guardianship program, an office of public guardian, or the Health and Human Services Commission [Department of Aging and Disability Services], whether the guardian or an individual certified under Subchapter C, Chapter 155, Government Code, who is providing guardianship services to the ward and who is filing the affidavit on the guardian's behalf, is or has been the subject of an investigation conducted by the Judicial Branch [Guardianship] Certification Commission [Board] during the preceding year; and

(10) any additional information the guardian desires to share with the court regarding the ward, including:

(A) whether the guardian has filed for emergency detention of the ward under Subchapter A, Chapter 573, Health and Safety Code; and

(B) if applicable, the number of times the guardian has filed for emergency detention and the dates of the applications for emergency detention.

SECTION 9. Section 155.001, Government Code, is amended by amending Subdivisions (4) and (6) and adding Subdivisions (5-a) and (6-a) to read as follows:

(4) "Guardianship program" means a local, county, or regional program, other than an office of public guardian, that provides guardianship and related services to an incapacitated person or other person who needs assistance in making decisions concerning the person's own welfare or financial affairs.

(5-a) "Office of public guardian" has the meaning assigned by Section 1002.0215, Estates Code.

(6) "Private professional guardian" means a person, other than an attorney, [or] a corporate fiduciary, or an office of public guardian, who is engaged in the business of providing guardianship services.

(6-a) "Public guardian" has the meaning assigned by Section 1002.0265, Estates Code.

SECTION 10. Section 155.101(a), Government Code, is amended to read as follows:

(a) The commission shall adopt minimum standards for:

(1) the provision of guardianship services or other similar but less restrictive types of assistance or services by:

(A) guardianship programs; and

(B) private professional guardians; [and]

(2) the provision of guardianship services by the Health and Human Services Commission; and

(3) the provision of guardianship services by offices of public guardians [Department of Aging and Disability Services].

SECTION 11. Section 155.102(a), Government Code, is amended to read as follows:

(a) To provide guardianship services in this state, the following individuals must hold a certificate issued under this section:

(1) an individual who is a private professional guardian;

(2) an individual who will provide those services to a ward of a private professional guardian on the guardian's behalf; [and]

(3) an individual, other than a volunteer, who will provide those services or other services under Section 161.114, Human Resources Code, to a ward of a guardianship program or the Health and Human Services Commission [Department of Aging and Disability Services] on the program's or commission's [department's] behalf;

(4) an individual who is a public guardian; and

(5) an individual who will provide those services to a ward of an office of public guardian.

SECTION 12. Section 155.105, Government Code, is amended by adding Subsection (b-1) to read as follows:

(b-1) Not later than January 31 of each year, each office of public guardian shall provide to the commission a report containing for the preceding year:

(1) the number of wards served by the office;

(2) the total amount of any money received from this state for the provision of guardianship services; and

(3) the amount of money received from any other public source, including a county or the federal government, for the provision of guardianship services, reported by source, and the total amount of money received from those public sources.

SECTION 13. Section 411.1386(a), Government Code, is amended to read as follows:

(a) Except as provided by Subsections (a-1), (a-5), and (a-6), the clerk of the county having venue over a proceeding for the appointment of a guardian under Title 3, Estates Code, shall obtain from the department criminal history record information maintained by the department that relates to:

(1) a private professional guardian;

(2) each person who represents or plans to represent the interests of a ward as a guardian on behalf of the private professional guardian;

(3) each person employed by a private professional guardian who will:

(A) have personal contact with a ward or proposed ward;

(B) exercise control over and manage a ward's estate; or

(C) perform any duties with respect to the management of a ward's estate;

(4) each person employed by or volunteering or contracting with a guardianship program to provide guardianship services to a ward of the program on the program's behalf; [or]

(5) a public guardian, as defined by Section 1002.0265(1), Estates Code;

(6) each person who represents or plans to represent the interests of a ward as a guardian on behalf of an office of public guardian;

(7) each person employed by an office of public guardian, as defined by Section 1002.0215, Estates Code, who will:

(A) have personal contact with a ward or proposed ward;

(B) exercise control over and manage a ward's estate; or

(C) perform any duties with respect to the management of a ward's estate; or

(8) any other person proposed to serve as a guardian under Title 3, Estates Code, including a proposed temporary guardian and a proposed successor guardian, other than an attorney.

SECTION 14. Section 161.103, Human Resources Code, is amended to read as follows:

Sec. 161.103. CONTRACT FOR GUARDIANSHIP SERVICES. (a) If appropriate, the commission [department] may contract with a political subdivision of this state, a guardianship program as defined by Section 1002.016, Estates Code, a private agency, or another state agency for the provision of guardianship services under this section.

(b) A contract under Subsection (a) may allow for the provision of guardianship services by an office of public guardian, as defined by Section 1002.0215, Estates Code.

SECTION 15. Not later than January 1, 2018, the supreme court shall adopt rules necessary to implement Subchapter G-1, Chapter 1104, Estates Code, as added by this Act, including rules governing the transfer of a guardianship of the person or of the estate of a ward, or both, if appropriate, to an office of public guardian established under that subchapter or a public guardian contracted under that subchapter.

SECTION 16. (a) The changes in law made by this Act apply only to the appointment of a guardian of the person or of the estate of a ward, or both, made on or after July 1, 2018.

(b) Notwithstanding any other law, a person who, immediately before July 1, 2018, is serving as guardian of the person or of the estate of a ward, or both, who, under Section 1104.334, Estates Code, as added by this Act, would be eligible for appointment of an office of public guardian as the ward's guardian, may continue to serve as guardian of the person or of the estate of the ward, or both, unless otherwise removed as provided by law.

SECTION 17. This Act takes effect September 1, 2017.