85R7676 KFF-F
 
  By: Zaffirini S.B. No. 1325
 
 
 
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 a 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 or
  contract with an individual to act as public guardian under this
  section 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 with whom a contract is entered
  into or 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 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 subsection.
         (e)  A person appointed or acting as a public guardian under
  this section serves a term of five years.
         Sec. 1104.328.  QUALIFICATIONS OF PUBLIC GUARDIAN. To be
  appointed a public guardian under Section 1104.327(b), a person
  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. An office 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.
         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.
         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 a person appointed or acting as
  public guardian vacates the position, the commissioners court shall
  appoint or enter into an agreement with a person, subject to Section
  1104.328, to serve as public guardian for the unexpired term.
         Sec. 1104.333.  POWERS AND DUTIES. (a) An office or other
  public guardian shall:
               (1)  evaluate the financial status of a proposed ward
  to determine whether the proposed ward is eligible to have the
  office or other public guardian appointed guardian of the ward
  under Section 1104.334(a)(2); and
               (2)  serve as guardian of the person of a ward 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 a 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 public guardian.
         (c)  Notwithstanding Section 552.261, Government Code, a
  state agency may not charge an office or other public guardian for
  providing the office with a copy of public information requested
  from the agency by the office.
         Sec. 1104.334.  APPOINTMENT OF OFFICE AS GUARDIAN. (a) In
  accordance with applicable law, including Subchapter C, Chapter
  1101, a court may appoint an office to serve as guardian of the
  person of a ward who:
               (1)  resides in or is located on the date the
  guardianship application is filed in the county served by the
  office;
               (2)  does not have sufficient assets or other resources
  to pay a private professional guardian to serve as the ward's
  guardian; and
               (3)  does not have a family member, friend, or other
  suitable person or entity willing and able to serve as the ward's
  guardian.
         (b)  For purposes of Subsection (a)(2), 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 the 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 20 wards for each guardian representing the
  interests of wards on behalf of the office.
         (d)  If an office meets 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
  of a ward.
         (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 respecting
  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 of a
  ward, 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)  The Office of Court Administration of
  the Texas Judicial System shall:
               (1)  provide training, administrative support, and
  resources to assist public guardians in performing their duties
  under this subchapter;
               (2)  encourage consistency in data collection, forms,
  and reporting instruments among public guardians; and
               (3)  facilitate the exchange of information and
  encourage efficient practices among public guardians.
         (b)  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 public guardians under this subchapter; and
               (2)  recommendations for legislation, if any.
         (c)  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 (b)(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 have personal contact with a ward or proposed
  ward; 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 1163.101(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 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
  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 14.  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 guardianships of the person, if
  appropriate, to an office of public guardian established under that
  subchapter or a public guardian contracted under that subchapter.
         SECTION 15.  (a) The changes in law made by this Act apply
  only to the appointment of a guardian of the person of a ward 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 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
  guardian of the person to the ward unless otherwise removed as
  provided by law.
         SECTION 16.  This Act takes effect September 1, 2017.