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A BILL TO BE ENTITLED
|
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AN ACT
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relating to parental administrations for certain adults with |
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intellectual disabilities and the prosecution of a related criminal |
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offense. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 1002.0015, Estates Code, is amended to |
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read as follows: |
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Sec. 1002.0015. ALTERNATIVES TO GUARDIANSHIP. |
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"Alternatives to guardianship" includes the: |
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(1) execution of a medical power of attorney under |
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Chapter 166, Health and Safety Code; |
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(2) appointment of an attorney in fact or agent under a |
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durable power of attorney as provided by Subtitle P, Title 2; |
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(3) execution of a declaration for mental health |
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treatment under Chapter 137, Civil Practice and Remedies Code; |
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(4) appointment of a representative payee to manage |
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public benefits; |
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(5) establishment of a joint bank account; |
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(6) creation of a management trust under Chapter 1301; |
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(7) creation of a special needs trust; |
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(8) designation of a guardian before the need arises |
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under Subchapter E, Chapter 1104; [and] |
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(9) establishment of alternate forms of |
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decision-making based on person-centered planning; and |
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(10) appointment of a parental administrator under |
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Chapter 1359. |
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SECTION 2. Section 1002.002, Estates Code, is amended to |
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read as follows: |
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Sec. 1002.002. ATTORNEY AD LITEM. "Attorney ad litem" |
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means an attorney appointed by a court to represent and advocate on |
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behalf of: |
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(1) a proposed ward, an incapacitated person, an |
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unborn person, or another person described by Section 1054.007 in a |
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guardianship proceeding; or |
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(2) a proposed incapacitated adult, as defined by |
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Section 1359.001, in a proceeding for a parental administration |
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under Chapter 1359. |
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SECTION 3. Subchapter A, Chapter 1202, Estates Code, is |
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amended by adding Section 1202.004 to read as follows: |
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Sec. 1202.004. TERMINATION OF GUARDIANSHIP OF THE PERSON IF |
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ELIGIBLE FOR PARENTAL ADMINISTRATION. On the application of a |
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parent, as defined by Section 1359.001, a court with jurisdiction |
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over a guardianship of the person may terminate the guardianship on |
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a finding that the ward qualifies as an incapacitated adult under |
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Chapter 1359 and appoint a parental administrator of the |
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incapacitated adult under that chapter. |
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SECTION 4. Subtitle I, Title 3, Estates Code, is amended by |
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adding Chapter 1359 to read as follows: |
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CHAPTER 1359. PARENTAL ADMINISTRATION |
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SUBCHAPTER A. GENERAL PROVISIONS RELATING TO APPOINTMENT OF |
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PARENTAL ADMINISTRATOR |
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Sec. 1359.001. DEFINITIONS. (a) In this chapter: |
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(1) "Incapacitated adult" means a person who is 18 |
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years of age or older or will be 18 years of age within 180 days of |
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the date of an application under this chapter who, because of a |
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mental condition, is substantially unable to: |
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(A) provide food, clothing, or shelter for |
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himself or herself; |
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(B) care for the person's own physical health; or |
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(C) manage the person's own financial affairs. |
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(2) "Intellectual disability" has the meaning |
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assigned by Section 591.003, Health and Safety Code. |
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(3) "Parent" has the meaning assigned by Section |
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1002.022, except that the term includes a person who was appointed |
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the conservator of a child under Chapter 153, Family Code. |
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(4) "Proposed incapacitated adult" means a person |
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alleged in a parental administration proceeding under this chapter |
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to be an incapacitated adult. |
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(b) To the extent a definition of a term provided by this |
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chapter conflicts with the definition of that term provided by |
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Chapter 1002, the definition provided by this chapter prevails in |
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this chapter. |
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Sec. 1359.002. APPLICABILITY. This chapter applies only |
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to: |
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(1) an incapacitated adult whose incapacity has |
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existed since the person was a minor; and |
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(2) the parent of an incapacitated adult. |
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SUBCHAPTER B. APPOINTMENT OF PARENTAL ADMINISTRATOR |
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Sec. 1359.051. PARENTAL ADMINISTRATOR. The parent of a |
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proposed incapacitated adult may in accordance with this chapter |
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seek appointment as the parental administrator of that adult with |
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the rights and duties granted under Section 1359.061. |
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Sec. 1359.052. APPLICATION; VENUE. (a) A parent of a |
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proposed incapacitated adult may apply to the court for the |
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appointment of a parental administrator. |
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(b) Subject to Section 1359.053, the application must be |
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under oath and in writing and must include: |
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(1) the proposed incapacitated adult's name, date of |
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birth, and address; |
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(2) the name, relationship, and address of the person |
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the applicant seeks to have appointed as parental administrator; |
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(3) a description of the nature of the proposed |
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incapacitated adult's alleged incapacity and a statement that the |
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incapacity existed during minority; |
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(4) a statement that the proposed incapacitated adult |
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is totally without capacity to care for himself or herself; |
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(5) a statement of the facts requiring the appointment |
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of a parental administrator; |
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(6) a statement of the nature and description of any |
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existing guardianship of the proposed incapacitated adult; |
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(7) a statement as to whether the proposed |
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incapacitated adult was the subject of a conservatorship proceeding |
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and, if so, the name of the conservator; |
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(8) the name of the proposed incapacitated adult's |
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spouse, if any, and the spouse's address or a statement that the |
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spouse is deceased; |
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(9) the names of the proposed incapacitated adult's |
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parents and, for each parent, the parent's address or a statement |
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that the parent is deceased; |
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(10) the name and age of each of the proposed |
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incapacitated adult's siblings, if any, and, for each sibling, the |
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sibling's address or a statement that the sibling is deceased; and |
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(11) a statement of facts showing that the proposed |
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incapacitated adult is a resident of the county in which the |
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proceeding is brought. |
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(c) Venue for a proceeding for the appointment of a parental |
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administrator is the same as venue for a proceeding for the |
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appointment of a guardian. |
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Sec. 1359.053. CONFIDENTIALITY OF CERTAIN ADDRESSES. An |
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application filed under Section 1359.052 may omit the address of a |
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person named in the application if: |
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(1) the application states that the person is |
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protected by a protective order issued under Chapter 85, Family |
|
Code; |
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(2) a copy of the protective order is attached to the |
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application as an exhibit; |
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(3) the application states the county in which the |
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person resides; |
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(4) the application indicates the place where notice |
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to or the issuance and service of citation on the person may be made |
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or sent; and |
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(5) the application is accompanied by a request for an |
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order under Section 1051.201 specifying the manner of issuance, |
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service, and return of citation or notice on the person. |
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Sec. 1359.054. APPOINTMENT OF ATTORNEY AD LITEM IN |
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PROCEEDING FOR APPOINTMENT OF PARENTAL ADMINISTRATOR. (a) In a |
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proceeding for the appointment of a parental administrator, the |
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court shall appoint an attorney ad litem to represent the proposed |
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incapacitated adult's interests. |
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(b) The attorney ad litem must have the certification |
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required by Section 1054.201. |
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(c) The provisions of Chapter 1054 applicable to the term of |
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appointment, right to access records, and duties of an attorney ad |
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litem appointed in a guardianship proceeding apply to an attorney |
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ad litem appointed under this section in a proceeding for the |
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appointment of a parental administrator. |
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Sec. 1359.055. DETERMINATION OF INCAPACITY: EXAMINATIONS. |
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(a) The court may not grant an application for the appointment of a |
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parental administrator for a proposed incapacitated adult unless |
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the applicant presents to the court: |
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(1) a written letter or certificate from a physician |
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licensed in this state that: |
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(A) is dated not earlier than the 120th day |
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before the date the application is filed; |
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(B) is based on an examination the physician |
|
performed not earlier than the 120th day before the date the |
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application is filed; and |
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(C) complies with Subsection (b); or |
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(2) a written letter or certificate that: |
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(A) shows that not earlier than 24 months before |
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the date of a hearing on the application: |
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(i) the proposed incapacitated adult has |
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been examined by a physician or psychologist licensed in this state |
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or certified by the Health and Human Services Commission to perform |
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the examination, in accordance with rules of the executive |
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commissioner of the Health and Human Services Commission governing |
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examinations of that kind, and the physician's or psychologist's |
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written findings and recommendations include a determination of an |
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intellectual disability; or |
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(ii) a physician or psychologist licensed |
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in this state or certified by the Health and Human Services |
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Commission to perform examinations described by Subparagraph (i) |
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updated or endorsed in writing a prior determination of an |
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intellectual disability for the proposed incapacitated adult made |
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by a physician or psychologist licensed in this state or certified |
|
by the commission; and |
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(B) complies with Subsection (b). |
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(b) A letter or certificate under Subsection (a)(1) or (2) |
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must: |
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(1) describe the nature, degree, and severity of the |
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proposed incapacitated adult's incapacity, including any |
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functional deficits regarding the proposed incapacitated adult's |
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ability to consent to medical, dental, psychological, or |
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psychiatric treatment; |
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(2) provide an evaluation of the proposed |
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incapacitated adult's physical condition and mental functioning |
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and summarize the proposed incapacitated adult's medical history if |
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reasonably available, including whether the incapacitated adult's |
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incapacity existed when the incapacitated adult was a minor; |
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(3) state how or in what manner the proposed |
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incapacitated adult's ability to make or communicate responsible |
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decisions concerning himself or herself is affected by the proposed |
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incapacitated adult's physical or mental health, including the |
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proposed incapacitated adult's ability to: |
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(A) understand or communicate; |
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(B) recognize familiar objects and individuals; |
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(C) solve problems; |
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(D) reason logically; and |
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(E) administer to daily life activities with and |
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without supports and services; |
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(4) state whether any current medication affects the |
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proposed incapacitated adult's demeanor or the proposed |
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incapacitated adult's ability to participate fully in a court |
|
proceeding; |
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(5) describe the precise physical and mental |
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conditions underlying a diagnosis of an intellectual disability; |
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(6) state whether a parental administration is |
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necessary for the proposed incapacitated adult; and |
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(7) include any other information required by the |
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court. |
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(c) If the court determines it is necessary, the court may |
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appoint a physician to examine the proposed incapacitated adult. |
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The court must make a determination with respect to the necessity |
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for a physician's examination of the proposed incapacitated adult |
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at a hearing held for that purpose. Not later than the fourth day |
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before the date of the hearing, the applicant shall give to the |
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proposed incapacitated adult and the proposed incapacitated |
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adult's attorney ad litem written notice specifying the purpose and |
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the date and time of the hearing. |
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(d) A physician who examines the proposed incapacitated |
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adult for purposes of Subsection (a)(1) shall file with the court |
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and provide to the attorney ad litem appointed to represent the |
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proposed incapacitated adult a written letter or certificate from |
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the physician that complies with the requirements of Subsections |
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(a)(1) and (b). |
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Sec. 1359.056. SERVICE AND NOTICE. (a) The citation and |
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the application filed under this chapter shall be personally served |
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on the proposed incapacitated adult by a sheriff, constable, or |
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other person authorized by law to serve process. |
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(b) Notice shall be given by certified mail, return receipt |
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requested, to: |
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(1) a guardian of the proposed incapacitated adult, if |
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applicable, unless the guardian is the applicant; and |
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(2) each other person named under Section |
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1359.052(b)(8), (9), or (10). |
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(c) The applicant shall file with the court: |
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(1) a copy of any notice required by Subsection (b) and |
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the proof of delivery of the notice; and |
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(2) for each notice, an affidavit sworn to by the |
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applicant or the applicant's attorney stating: |
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(A) that the notice was mailed as required by |
|
Subsection (b); and |
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(B) the name of the person to whom the notice was |
|
mailed, if the person's name is not shown on the proof of delivery. |
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(d) A person who is entitled to receive notice under |
|
Subsection (b) may, by writing filed with the clerk, waive the |
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receipt of notice either in person or through an attorney ad litem. |
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Sec. 1359.057. HEARING. (a) At a hearing for the |
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appointment of a parental administrator, the court shall inquire |
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into: |
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(1) the ability of the proposed incapacitated adult |
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to: |
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(A) feed, clothe, and shelter himself or herself; |
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and |
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(B) care for his or her own physical health; |
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(2) whether the incapacity existed when the proposed |
|
incapacitated adult was a minor; and |
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(3) the parental status of the applicant seeking to be |
|
appointed parental administrator. |
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(b) A proposed incapacitated adult must be present at the |
|
hearing unless the court, on the record or in the order, determines |
|
that a personal appearance is not necessary. |
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(c) The court may close the hearing at the request of the |
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proposed incapacitated adult. |
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(d) A proposed incapacitated adult is entitled to a jury |
|
trial on timely request. |
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Sec. 1359.058. USE OF RECORDS. Current medical, |
|
psychological, and intellectual testing records are a sufficient |
|
basis for an appointment of a parental administrator, but the |
|
findings and recommendations contained in those records are not |
|
binding on the court. |
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Sec. 1359.059. FINDINGS AND PROOF REQUIRED. Before |
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appointing a parental administrator for a proposed incapacitated |
|
adult, the court must find by a preponderance of the evidence that: |
|
(1) the proposed incapacitated adult is an |
|
incapacitated adult; |
|
(2) the incapacitated adult's incapacity existed when |
|
the incapacitated adult was a minor; and |
|
(3) the person to be appointed parental administrator |
|
is suitable to act as parental administrator. |
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Sec. 1359.060. APPOINTMENT OF PARENTAL ADMINISTRATOR. |
|
After making the findings required by Section 1359.059, the court |
|
may appoint a parent of the person found to be an incapacitated |
|
adult as parental administrator. |
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Sec. 1359.061. RIGHTS AND DUTIES OF PARENTAL ADMINISTRATOR. |
|
(a) A parental administrator has the following rights and duties: |
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(1) the right to have physical possession of the |
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incapacitated adult and to establish the incapacitated adult's |
|
legal domicile; |
|
(2) the duty to provide care, supervision, and |
|
protection for the incapacitated adult; |
|
(3) the duty to provide the incapacitated adult with |
|
clothing, food, medical care, and shelter; |
|
(4) the power to consent to medical, psychiatric, and |
|
surgical treatment of the incapacitated adult; |
|
(5) the power to establish a trust in accordance with |
|
42 U.S.C. Section 1396p(d)(4)(B) and direct that the income of the |
|
incapacitated adult as defined by that section be paid directly to |
|
the trust, solely for the purpose of the incapacitated adult's |
|
eligibility for medical assistance under Chapter 32, Human |
|
Resources Code; and |
|
(6) the power to sign documents necessary or |
|
appropriate to facilitate employment of the incapacitated adult. |
|
(b) With respect to the rights and duties described under |
|
Subsection (a), a parental administrator has the same authority as |
|
a guardian of the person under law. |
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SUBCHAPTER C. REPORTING |
|
Sec. 1359.101. REPORT OF PARENTAL ADMINISTRATOR. At any |
|
time after a parental administrator is appointed, the court, on its |
|
own motion or on the motion of a person interested in the welfare of |
|
the incapacitated adult and for good cause shown, may order the |
|
parental administrator to submit to the court a report on the |
|
condition of the incapacitated adult. The parental administrator |
|
must include in the report a statement regarding: |
|
(1) whether the incapacitated adult is receiving |
|
residential care in a public or private residential care facility; |
|
and |
|
(2) if the incapacitated adult is receiving care in a |
|
residential care facility, the necessity for continued care in the |
|
facility. |
|
SUBCHAPTER D. INVESTIGATION OF ALLEGED ABUSE, NEGLECT, OR |
|
EXPLOITATION CONCERNING INCAPACITATED ADULT |
|
Sec. 1359.151. INTERFERENCE WITH INVESTIGATION OR SERVICES |
|
PROHIBITED. A parental administrator may not interfere with: |
|
(1) an investigation by the Department of Family and |
|
Protective Services, another state agency, or a law enforcement |
|
agency of alleged abuse, neglect, or exploitation of the |
|
incapacitated adult; or |
|
(2) the provision of protective services by the |
|
Department of Family and Protective Services or another state |
|
agency to the incapacitated adult. |
|
Sec. 1359.152. REPORT TO COURT OF INVESTIGATION OF ALLEGED |
|
ABUSE, NEGLECT, OR EXPLOITATION. Subject to rules adopted under |
|
Section 48.101, Human Resources Code, the Department of Family and |
|
Protective Services or another state agency that conducts an |
|
investigation of alleged abuse, neglect, or exploitation of an |
|
incapacitated adult for whom a parental administrator is appointed |
|
shall report the results of the investigation to the court with |
|
jurisdiction of the parental administration. |
|
SUBCHAPTER E. REMOVAL OR TERMINATION OF POWERS OF PARENTAL |
|
ADMINISTRATOR |
|
Sec. 1359.201. GROUNDS FOR REMOVAL OF PARENTAL |
|
ADMINISTRATOR. A court may remove a parental administrator if the |
|
parental administrator: |
|
(1) fails to comply with a court order for a report |
|
under Section 1359.101; |
|
(2) is proven to have been guilty of gross misconduct |
|
or gross mismanagement in the performance of duties as parental |
|
administrator; |
|
(3) becomes an incapacitated person; |
|
(4) is convicted of an offense and subsequently |
|
confined or imprisoned; or |
|
(5) for any other reason becomes unable to properly |
|
perform the parental administrator's duties. |
|
Sec. 1359.202. TERMINATION OF PARENTAL ADMINISTRATOR'S |
|
RIGHTS AND POWERS ON CONVERSION TO GUARDIANSHIP. The rights and |
|
powers of a parental administrator terminate when a court orders |
|
the parental administration converted into a guardianship of the |
|
person. |
|
Sec. 1359.203. PROCEDURE FOR REMOVAL OF PARENTAL |
|
ADMINISTRATOR OR CONVERSION OF PARENTAL ADMINISTRATION TO |
|
GUARDIANSHIP. (a) The court on the court's own motion or on the |
|
application of any person may initiate a proceeding to: |
|
(1) subject to Subsection (b), remove a parental |
|
administrator on proof of a ground for removal described by Section |
|
1359.201; or |
|
(2) subject to Subsection (c), convert a parental |
|
administration for an incapacitated adult to a guardianship of the |
|
person for the incapacitated adult. |
|
(b) In a proceeding for the removal of a parental |
|
administrator initiated under Subsection (a)(1), the court shall |
|
have the parental administrator cited by personal service to appear |
|
before the court. The citation must state: |
|
(1) the time and place of a hearing on the matter at |
|
which the parental administrator is to appear; and |
|
(2) the alleged ground for removal of the parental |
|
administrator. |
|
(c) Notice of a proceeding to convert a parental |
|
administration and appoint a guardian of the person initiated under |
|
Subsection (a)(2) must be provided in the manner required by |
|
Chapter 1051. |
|
(d) Notwithstanding the requirements of Section 1101.104, |
|
an application for the conversion of a parental administration and |
|
the appointment of a guardian of the person does not require a |
|
written letter or certificate from a physician licensed in this |
|
state. |
|
SECTION 5. The heading to Section 25.10, Penal Code, is |
|
amended to read as follows: |
|
Sec. 25.10. INTERFERENCE WITH CERTAIN POSSESSORY RIGHTS [OF
|
|
GUARDIAN OF THE PERSON]. |
|
SECTION 6. Sections 25.10(a) and (b), Penal Code, are |
|
amended to read as follows: |
|
(a) In this section: |
|
(1) "Incapacitated adult" has the meaning assigned by |
|
Section 1359.001, Estates Code. |
|
(1-a) "Possessory right" means: |
|
(A) the right of a guardian of the person to have |
|
physical possession of a ward and to establish the ward's legal |
|
domicile, as provided by Section 1151.051 [767(1)], Estates [Texas
|
|
Probate] Code; or |
|
(B) the right of a parental administrator to have |
|
physical possession of an incapacitated adult and to establish the |
|
incapacitated adult's legal domicile, as provided by Section |
|
1359.061, Estates Code. |
|
(2) "Ward" has the meaning assigned by Section |
|
1002.030 [601], Estates [Texas Probate] Code. |
|
(b) A person commits an offense if the person takes, |
|
retains, or conceals a ward or incapacitated adult when the person |
|
knows that the person's taking, retention, or concealment |
|
interferes with a possessory right with respect to the ward or |
|
incapacitated adult. |
|
SECTION 7. To the extent of any conflict, this Act prevails |
|
over another Act of the 85th Legislature, Regular Session, 2017, |
|
relating to nonsubstantive additions to and corrections in enacted |
|
codes. |
|
SECTION 8. The changes in law made by this Act to Section |
|
25.10, Penal Code, apply only to an offense committed on or after |
|
the effective date of this Act. An offense committed before the |
|
effective date of this Act is governed by the law in effect on the |
|
date the offense was committed, and the former law is continued in |
|
effect for that purpose. For purposes of this section, an offense |
|
was committed before the effective date of this Act if any element |
|
of the offense occurred before that date. |
|
SECTION 9. This Act takes effect September 1, 2017. |