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A BILL TO BE ENTITLED
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AN ACT
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relating to authorizing counties to establish public guardians to |
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serve as guardians for certain incapacitated persons. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 1002, Estates Code, is amended by adding |
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Sections 1002.0215 and 1002.0265 to read as follows: |
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Sec. 1002.0215. OFFICE OF PUBLIC GUARDIAN. "Office of |
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public guardian" means an office of public guardian established by |
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the commissioners court of a county under Subchapter G-1, Chapter |
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1104. |
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Sec. 1002.0265. PUBLIC GUARDIAN. "Public guardian" means a |
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person: |
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(1) appointed to administer an office of public |
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guardian by the commissioners court of a county under Subchapter |
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G-1, Chapter 1104; or |
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(2) with which one or more counties enter into an |
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agreement under Section 1104.327(a)(2) or (d). |
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SECTION 2. Section 1104.251(a), Estates Code, is amended to |
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read as follows: |
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(a) An individual must be certified under Subchapter C, |
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Chapter 155, Government Code, if the individual: |
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(1) is a private professional guardian; |
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(2) will represent the interests of a ward as a |
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guardian on behalf of a private professional guardian; |
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(3) is providing guardianship services to a ward of a |
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guardianship program on the program's behalf, except as provided by |
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Section 1104.254; [or] |
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(4) is an employee of the Health and Human Services |
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Commission [Department of Aging and Disability Services] providing |
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guardianship services to a ward of the commission; |
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(5) is a public guardian; or |
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(6) will represent the interests of a ward as a |
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guardian on behalf of a public guardian [department]. |
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SECTION 3. Chapter 1104, Estates Code, is amended by adding |
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Subchapter G-1 to read as follows: |
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SUBCHAPTER G-1. PUBLIC GUARDIANS |
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Sec. 1104.326. DEFINITION. In this subchapter, unless the |
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context otherwise requires, "office" means an office of public |
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guardian established under this subchapter. |
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Sec. 1104.327. ESTABLISHMENT OF OFFICES; PUBLIC GUARDIANS. |
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(a) The commissioners court of a county by order may: |
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(1) create an office of public guardian to provide |
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guardianship services to incapacitated persons described by |
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Section 1104.334; or |
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(2) enter into an agreement with a person operating a |
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nonprofit guardianship program or private professional |
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guardianship program located in the county or in an adjacent county |
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to act as a public guardian by providing guardianship services to |
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incapacitated persons described by Section 1104.334. |
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(b) Subject to Subsection (c) and Section 1104.328, the |
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commissioners court of a county shall appoint a public guardian to |
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administer the office of public guardian established under |
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Subsection (a)(1) and may employ or authorize the public guardian |
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to employ personnel necessary to perform the duties of the office, |
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including personnel who will represent the interests of a ward as a |
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guardian on behalf of the office if approved by the commissioners |
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court. |
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(c) The commissioners court of a county may appoint or |
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contract with an individual to act as public guardian under this |
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section on a part-time basis with appropriate compensation if: |
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(1) the commissioners court determines a full-time |
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appointment does not serve the needs of the county; and |
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(2) the individual with whom a contract is entered |
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into or who is appointed on a part-time basis is not employed in or |
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does not hold another position that presents a conflict of |
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interest. |
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(d) The commissioners courts of two or more counties may |
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collectively enter into an agreement: |
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(1) to create and fund an office of public guardian for |
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purposes of Subsection (a)(1) and to appoint the same public |
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guardian to that office under Subsection (b); or |
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(2) with a person operating a guardianship program |
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described by Subsection (a)(2) to serve as a public guardian for |
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purposes of that subsection. |
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(e) A person appointed or acting as a public guardian under |
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this section serves a term of five years. |
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Sec. 1104.328. QUALIFICATIONS OF PUBLIC GUARDIAN. To be |
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appointed a public guardian under Section 1104.327(b), a person |
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must: |
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(1) be a licensed attorney or be certified under |
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Subchapter C, Chapter 155, Government Code; and |
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(2) have demonstrable guardianship experience. |
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Sec. 1104.329. CONFLICT OF INTEREST. An office must be |
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independent from providers of services to wards and proposed wards |
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and may not directly provide housing, medical, legal, or other |
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direct, non-surrogate decision-making services to a ward or |
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proposed ward. |
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Sec. 1104.330. COMPENSATION. A person appointed or acting |
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as public guardian under Section 1104.327 shall receive |
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compensation as set by the commissioners court and is not entitled |
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to compensation under Subchapter A, Chapter 1155. |
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Sec. 1104.331. BOND REQUIREMENT. (a) A public guardian |
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shall file with the court clerk a general bond in an amount fixed by |
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the commissioners court payable to the county and issued by a surety |
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company approved by the county judge. The bond must be conditioned |
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on the faithful performance by the person of the person's duties |
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and, if the public guardian administers an office, the office's |
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duties. |
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(b) The bond required by this section satisfies any bond |
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required under Chapter 1105. |
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Sec. 1104.332. VACANCY. If a person appointed or acting as |
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public guardian vacates the position, the commissioners court shall |
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appoint or enter into an agreement with a person, subject to Section |
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1104.328, to serve as public guardian for the unexpired term. |
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Sec. 1104.333. POWERS AND DUTIES. (a) An office or other |
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public guardian shall: |
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(1) evaluate the financial status of a proposed ward |
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to determine whether the proposed ward is eligible to have the |
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office or other public guardian appointed guardian of the ward |
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under Section 1104.334(a)(2); and |
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(2) serve as guardian of the person of a ward on |
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appointment by a court in accordance with the requirements of this |
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title. |
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(b) In connection with a financial evaluation under |
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Subsection (a)(1) and on the request of a public guardian, a court |
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with jurisdiction over the guardianship proceeding may order the |
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release of public and private records, including otherwise |
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confidential records, to the public guardian. |
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(c) Notwithstanding Section 552.261, Government Code, a |
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state agency may not charge an office or other public guardian for |
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providing the office with a copy of public information requested |
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from the agency by the office. |
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Sec. 1104.334. APPOINTMENT OF OFFICE AS GUARDIAN. (a) In |
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accordance with applicable law, including Subchapter C, Chapter |
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1101, a court may appoint an office to serve as guardian of the |
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person of a ward who: |
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(1) resides in or is located on the date the |
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guardianship application is filed in the county served by the |
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office; |
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(2) does not have sufficient assets or other resources |
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to pay a private professional guardian to serve as the ward's |
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guardian; and |
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(3) does not have a family member, friend, or other |
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suitable person or entity willing and able to serve as the ward's |
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guardian. |
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(b) For purposes of Subsection (a)(2), the determination of |
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a ward's ability to pay a private professional guardian is |
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dependent on: |
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(1) the nature, extent, and liquidity of the ward's |
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assets; |
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(2) the ward's disposable net income, including income |
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of a recipient of medical assistance that is used to pay expenses |
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under Section 1155.202(a); |
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(3) the nature of the guardianship; |
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(4) the type, duration, and the complexity of services |
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required by the ward; and |
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(5) additional, foreseeable expenses. |
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(c) The number of appointments of an office under this |
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section may not exceed 20 wards for each guardian representing the |
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interests of wards on behalf of the office. |
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(d) If an office meets the limitation provided by Subsection |
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(c), the office shall immediately give notice to the courts. |
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Sec. 1104.335. CONFIDENTIALITY AND DISCLOSURE OF |
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INFORMATION. (a) All files, reports, records, communications, or |
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working papers used or developed by an office or public guardian in |
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the performance of duties relating to a financial evaluation under |
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Section 1104.333(a)(1) or the provision of guardianship services |
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are confidential and not subject to disclosure under Chapter 552, |
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Government Code. |
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(b) Confidential information may be disclosed only for a |
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purpose consistent with this subchapter, as required by other state |
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or federal law, or as necessary to enable an office or public |
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guardian to exercise the powers and duties as guardian of the person |
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of a ward. |
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(c) A court on its own motion or on the motion of an |
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interested person may order disclosure of confidential information |
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only if: |
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(1) a hearing on the motion is conducted; |
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(2) notice of the hearing is served on the office or |
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public guardian and each interested person; and |
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(3) the court determines after the hearing and an in |
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camera review of the information that disclosure is essential to |
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the administration of justice and will not endanger the life or |
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safety of any individual who: |
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(A) is being assessed for guardianship services; |
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(B) is a ward of the office or public guardian; or |
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(C) provides services to a ward of the office or |
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public guardian. |
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(d) The Office of Court Administration of the Texas Judicial |
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System shall establish policies and procedures for the exchange of |
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information between offices, public guardians, and other |
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appropriate governmental entities, as necessary for offices, |
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public guardians, and governmental entities to properly execute |
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their respective duties and responsibilities respecting |
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guardianship services or other needed services for a ward. An |
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exchange of information under this subsection does not constitute a |
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release for purposes of waiving the confidentiality of the |
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information exchanged. |
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(e) To the extent consistent with policies and procedures |
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adopted by an office or public guardian, the office or public |
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guardian on request may release confidential information in the |
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record of an individual who is a former ward of the office or public |
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guardian to: |
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(1) the individual; |
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(2) the individual's guardian; or |
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(3) an executor or administrator of the individual's |
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estate. |
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(f) Before releasing confidential information under |
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Subsection (e), an office or public guardian shall edit the |
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information to protect the identity of any individual whose life or |
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safety may be endangered by the release. A release of information |
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under Subsection (e) does not constitute a release for purposes of |
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waiving the confidentiality of the information released. |
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Sec. 1104.336. CERTAIN ADMINISTRATIVE COSTS. (a) If an |
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office or public guardian is appointed guardian of the person of a |
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ward, the administrative costs of the guardianship services |
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provided to the ward may not be charged to the ward's estate unless |
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the court determines, subject to Subsection (b), that the ward is |
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financially able to pay all or part of the costs. |
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(b) A court shall measure a ward's ability to pay for costs |
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under Subsection (a) by whether the ward has sufficient assets or |
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other resources to pay a private professional guardian to serve as |
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the ward's guardian in accordance with Section 1104.334(b). |
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Sec. 1104.337. OFFICE OF COURT ADMINISTRATION OF THE TEXAS |
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JUDICIAL SYSTEM; REPORT. (a) The Office of Court Administration of |
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the Texas Judicial System shall: |
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(1) provide training, administrative support, and |
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resources to assist public guardians in performing their duties |
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under this subchapter; |
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(2) encourage consistency in data collection, forms, |
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and reporting instruments among public guardians; and |
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(3) facilitate the exchange of information and |
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encourage efficient practices among public guardians. |
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(b) Not later than December 1 of each even-numbered year, |
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the Office of Court Administration of the Texas Judicial System |
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shall submit a report to the governor and the legislature that |
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contains an evaluation of public guardians established under this |
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subchapter, including the establishment and operation of offices of |
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public guardians under this subchapter and the provision of |
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guardianship services by the offices. The report must include: |
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(1) an analysis of costs and offsetting savings or |
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other benefits to the state as a result of the establishment and |
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operation of public guardians under this subchapter; and |
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(2) recommendations for legislation, if any. |
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(c) If it is cost-effective and feasible, the Office of |
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Court Administration of the Texas Judicial System may contract with |
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an appropriate research or public policy entity with expertise in |
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gerontology, disabilities, and public administration to conduct |
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the analysis described by Subsection (b)(1). |
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Sec. 1104.338. RULES. The supreme court, in consultation |
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with the Office of Court Administration of the Texas Judicial |
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System and the presiding judge of the statutory probate courts |
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elected under Section 25.0022, Government Code, shall adopt rules |
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necessary to implement this subchapter. |
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SECTION 4. Section 1104.402(a), Estates Code, is amended to |
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read as follows: |
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(a) Except as provided by Section 1104.403, 1104.404, or |
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1104.406(a), the clerk of the county having venue of the proceeding |
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for the appointment of a guardian shall obtain criminal history |
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record information that is maintained by the Department of Public |
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Safety or the Federal Bureau of Investigation identification |
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division relating to: |
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(1) a private professional guardian; |
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(2) each person who represents or plans to represent |
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the interests of a ward as a guardian on behalf of the private |
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professional guardian; |
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(3) each person employed by a private professional |
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guardian who will: |
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(A) have personal contact with a ward or proposed |
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ward; |
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(B) exercise control over and manage a ward's |
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estate; or |
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(C) perform any duties with respect to the |
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management of a ward's estate; |
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(4) each person employed by or volunteering or |
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contracting with a guardianship program to provide guardianship |
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services to a ward of the program on the program's behalf; [or] |
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(5) a public guardian appointed under Section |
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1104.327(b); |
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(6) each person who represents or plans to represent |
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the interests of a ward as a guardian on behalf of an office of |
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public guardian; |
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(7) each person employed by an office of public |
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guardian who will have personal contact with a ward or proposed |
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ward; or |
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(8) any other person proposed to serve as a guardian |
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under this title, including a proposed temporary guardian and a |
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proposed successor guardian, other than an attorney. |
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SECTION 5. Section 1104.409, Estates Code, is amended to |
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read as follows: |
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Sec. 1104.409. USE OF INFORMATION BY COURT. The court shall |
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use the information obtained under this subchapter only in |
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determining whether to: |
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(1) appoint, remove, or continue the appointment of a |
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private professional guardian, a guardianship program, an office of |
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public guardian, or the Health and Human Services Commission |
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[department]; or |
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(2) appoint any other person proposed to serve as a |
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guardian under this title, including a proposed temporary guardian |
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and a proposed successor guardian, other than an attorney. |
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SECTION 6. Section 1155.151(a-2), Estates Code, is amended |
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to read as follows: |
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(a-2) Notwithstanding any other law requiring the payment |
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of court costs in a guardianship proceeding, the following are not |
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required to pay court costs on the filing of or during a |
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guardianship proceeding: |
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(1) an attorney ad litem; |
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(2) a guardian ad litem; |
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(3) a person or entity who files an affidavit of |
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inability to pay the costs under Rule 145, Texas Rules of Civil |
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Procedure, that shows the person or entity is unable to afford the |
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costs; |
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(4) a nonprofit guardianship program; |
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(5) a governmental entity, including an office of |
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public guardian; and |
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(6) a government agency or nonprofit agency providing |
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guardianship services. |
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SECTION 7. Section 1163.101(c), Estates Code, is amended to |
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read as follows: |
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(c) The guardian of the person shall file a sworn affidavit |
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that contains: |
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(1) the guardian's current name, address, and |
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telephone number; |
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(2) the ward's date of birth and current name, address, |
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telephone number, and age; |
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(3) a description of the type of home in which the ward |
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resides, which shall be described as: |
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(A) the ward's own home; |
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(B) a nursing home; |
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(C) a guardian's home; |
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(D) a foster home; |
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(E) a boarding home; |
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(F) a relative's home, in which case the |
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description must specify the relative's relationship to the ward; |
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(G) a hospital or medical facility; or |
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(H) another type of residence; |
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(4) statements indicating: |
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(A) the length of time the ward has resided in the |
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present home; |
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(B) the reason for a change in the ward's |
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residence, if a change in the ward's residence has occurred in the |
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past year; |
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(C) the date the guardian most recently saw the |
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ward; |
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(D) how frequently the guardian has seen the ward |
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in the past year; |
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(E) whether the guardian has possession or |
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control of the ward's estate; |
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(F) whether the ward's mental health has |
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improved, deteriorated, or remained unchanged during the past year, |
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including a description of the change if a change has occurred; |
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(G) whether the ward's physical health has |
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improved, deteriorated, or remained unchanged during the past year, |
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including a description of the change if a change has occurred; |
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(H) whether the ward has regular medical care; |
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and |
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(I) the ward's treatment or evaluation by any of |
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the following persons during the past year, including the person's |
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name and a description of the treatment: |
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(i) a physician; |
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(ii) a psychiatrist, psychologist, or other |
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mental health care provider; |
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(iii) a dentist; |
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(iv) a social or other caseworker; or |
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(v) any other individual who provided |
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treatment; |
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(5) a description of the ward's activities during the |
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past year, including recreational, educational, social, and |
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occupational activities, or a statement that no activities were |
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available or that the ward was unable or refused to participate in |
|
activities; |
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(6) the guardian's evaluation of: |
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(A) the ward's living arrangements as excellent, |
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average, or below average, including an explanation if the |
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conditions are below average; |
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(B) whether the ward is content or unhappy with |
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the ward's living arrangements; and |
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(C) unmet needs of the ward; |
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(7) a statement indicating whether the guardian's |
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power should be increased, decreased, or unaltered, including an |
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explanation if a change is recommended; |
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(8) a statement indicating that the guardian has paid |
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the bond premium for the next reporting period; |
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(9) if the guardian is a private professional |
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guardian, a guardianship program, an office of public guardian, or |
|
the Health and Human Services Commission [Department of Aging and
|
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Disability Services], whether the guardian or an individual |
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certified under Subchapter C, Chapter 155, Government Code, who is |
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providing guardianship services to the ward and who is filing the |
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affidavit on the guardian's behalf, is or has been the subject of an |
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investigation conducted by the Judicial Branch [Guardianship] |
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Certification Commission [Board] during the preceding year; and |
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(10) any additional information the guardian desires |
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to share with the court regarding the ward, including: |
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(A) whether the guardian has filed for emergency |
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detention of the ward under Subchapter A, Chapter 573, Health and |
|
Safety Code; and |
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(B) if applicable, the number of times the |
|
guardian has filed for emergency detention and the dates of the |
|
applications for emergency detention. |
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SECTION 8. 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 9. 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 10. 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 11. 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 12. 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 of the person 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 |
|
have personal contact with a ward or proposed ward; 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 13. 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 |
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under this section. |
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(b) A contract under Subsection (a) may allow for the |
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provision of guardianship services by an office of public guardian, |
|
as defined by Section 1002.0215, Estates Code. |
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SECTION 14. Not later than January 1, 2018, the supreme |
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court shall adopt rules necessary to implement Subchapter G-1, |
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Chapter 1104, Estates Code, as added by this Act, including rules |
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governing the transfer of guardianships of the person, if |
|
appropriate, to an office of public guardian established under that |
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subchapter or a public guardian contracted under that subchapter. |
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SECTION 15. (a) The changes in law made by this Act apply |
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only to the appointment of a guardian of the person of a ward made on |
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or after July 1, 2018. |
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(b) Notwithstanding any other law, a person who, |
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immediately before July 1, 2018, is serving as guardian of the |
|
person of a ward 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 |
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guardian of the person to the ward unless otherwise removed as |
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provided by law. |
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SECTION 16. This Act takes effect September 1, 2017. |