86R3313 CLG-F
 
  By: Zaffirini S.B. No. 667
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to guardianships, management trusts, and certain other
  procedures and proceedings for persons who are incapacitated.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 1021.001, Estates Code, is amended to
  read as follows:
         Sec. 1021.001.  MATTERS RELATED TO GUARDIANSHIP PROCEEDING.
  (a) For purposes of this code, in a county in which there is no
  statutory probate court or county court of law exercising original
  probate jurisdiction, a matter related to a guardianship proceeding
  includes:
               (1)  the granting of letters of guardianship;
               (2)  the settling of an account of a guardian and all
  other matters relating to the settlement, partition, or
  distribution of a ward's estate;
               (3)  a claim brought by or against a guardianship
  estate;
               (4)  an action for trial of title to real property that
  is guardianship estate property, including the enforcement of a
  lien against the property;
               (5)  an action for trial of the right of property that
  is guardianship estate property;
               (6)  after a guardianship of the estate of a ward is
  required to be settled as provided by Section 1204.001:
                     (A)  an action brought by or on behalf of the
  former ward against a former guardian of the ward for alleged
  misconduct arising from the performance of the person's duties as
  guardian;
                     (B)  an action calling on the surety of a guardian
  or former guardian to perform in place of the guardian or former
  guardian, which may include the award of a judgment against the
  guardian or former guardian in favor of the surety;
                     (C)  an action against a former guardian of the
  former ward that is brought by a surety that is called on to perform
  in place of the former guardian;
                     (D)  a claim for the payment of compensation,
  expenses, and court costs, and any other matter authorized under
  Chapter 1155; and
                     (E)  a matter related to an authorization made or
  duty performed by a guardian under Chapter 1204; and
               (7)  the appointment of a trustee for a trust created
  under Section 1301.053 or 1301.054, the settling of an account of
  the trustee, and all other matters relating to the trust.
         (a-1)  For purposes of this code, in a county in which there
  is no statutory probate court, but in which there is a county court
  at law exercising original probate jurisdiction, a matter related
  to a guardianship proceeding includes:
               (1)  all matters and actions described in Subsection
  (a);
               (2)  the interpretation and administration of a
  testamentary trust in which a ward is an income or remainder
  beneficiary; and
               (3)  the interpretation and administration of an inter
  vivos trust in which a ward is an income or remainder beneficiary.
         (b)  For purposes of this code, in a county in which there is
  a statutory probate court, a matter related to a guardianship
  proceeding includes:
               (1)  all matters and actions described in Subsections
  [Subsection] (a) and (a-1);
               (2)  a suit, action, or application filed against or on
  behalf of a guardianship or a trustee of a trust created under
  Section 1301.053 or 1301.054; and
               (3)  a cause of action in which a guardian in a
  guardianship pending in the statutory probate court is a party.
         SECTION 2.  Section 1151.351(b), Estates Code, is amended to
  read as follows:
         (b)  Unless limited by a court or otherwise restricted by
  law, a ward is authorized to the following:
               (1)  to have a copy of the guardianship order and
  letters of guardianship and contact information for the probate
  court that issued the order and letters;
               (2)  to have a guardianship that encourages the
  development or maintenance of maximum self-reliance and
  independence in the ward with the eventual goal, if possible, of
  self-sufficiency;
               (3)  to be treated with respect, consideration, and
  recognition of the ward's dignity and individuality;
               (4)  to reside and receive support services in the most
  integrated setting, including home-based or other community-based
  settings, as required by Title II of the Americans with
  Disabilities Act (42 U.S.C. Section 12131 et seq.);
               (5)  to consideration of the ward's current and
  previously stated personal preferences, desires, medical and
  psychiatric treatment preferences, religious beliefs, living
  arrangements, and other preferences and opinions;
               (6)  to financial self-determination for all public
  benefits after essential living expenses and health needs are met
  and to have access to a monthly personal allowance;
               (7)  to receive timely and appropriate health care and
  medical treatment that does not violate the ward's rights granted
  by the constitution and laws of this state and the United States;
               (8)  to exercise full control of all aspects of life not
  specifically granted by the court to the guardian;
               (9)  to control the ward's personal environment based
  on the ward's preferences;
               (10)  to complain or raise concerns regarding the
  guardian or guardianship to the court, including living
  arrangements, retaliation by the guardian, conflicts of interest
  between the guardian and service providers, or a violation of any
  rights under this section;
               (11)  to receive notice in the ward's native language,
  or preferred mode of communication, and in a manner accessible to
  the ward, of a court proceeding to continue, modify, or terminate
  the guardianship and the opportunity to appear before the court to
  express the ward's preferences and concerns regarding whether the
  guardianship should be continued, modified, or terminated;
               (12)  to have a court investigator or[,] guardian ad
  litem[, or attorney ad litem] appointed by the court to investigate
  a complaint received by the court from the ward or any person about
  the guardianship;
               (13)  to participate in social, religious, and
  recreational activities, training, employment, education,
  habilitation, and rehabilitation of the ward's choice in the most
  integrated setting;
               (14)  to self-determination in the substantial
  maintenance, disposition, and management of real and personal
  property after essential living expenses and health needs are met,
  including the right to receive notice and object about the
  substantial maintenance, disposition, or management of clothing,
  furniture, vehicles, and other personal effects;
               (15)  to personal privacy and confidentiality in
  personal matters, subject to state and federal law;
               (16)  to unimpeded, private, and uncensored
  communication and visitation with persons of the ward's choice,
  except that if the guardian determines that certain communication
  or visitation causes substantial harm to the ward:
                     (A)  the guardian may limit, supervise, or
  restrict communication or visitation, but only to the extent
  necessary to protect the ward from substantial harm; and
                     (B)  the ward may request a hearing to remove any
  restrictions on communication or visitation imposed by the guardian
  under Paragraph (A);
               (17)  to petition the court and retain counsel of the
  ward's choice who holds a certificate required by Subchapter E,
  Chapter 1054, to represent the ward's interest for capacity
  restoration, modification of the guardianship, the appointment of a
  different guardian, or for other appropriate relief under this
  subchapter, including a transition to a supported decision-making
  agreement, except as limited by Section 1054.006;
               (18)  to vote in a public election, marry, and retain a
  license to operate a motor vehicle, unless restricted by the court;
               (19)  to personal visits from the guardian or the
  guardian's designee at least once every three months, but more
  often, if necessary, unless the court orders otherwise;
               (20)  to be informed of the name, address, phone
  number, and purpose of Disability Rights Texas, an organization
  whose mission is to protect the rights of, and advocate for, persons
  with disabilities, and to communicate and meet with representatives
  of that organization;
               (21)  to be informed of the name, address, phone
  number, and purpose of an independent living center, an area agency
  on aging, an aging and disability resource center, and the local
  mental health and intellectual and developmental disability
  center, and to communicate and meet with representatives from these
  agencies and organizations;
               (22)  to be informed of the name, address, phone
  number, and purpose of the Judicial Branch Certification Commission
  and the procedure for filing a complaint against a certified
  guardian;
               (23)  to contact the Department of Family and
  Protective Services to report abuse, neglect, exploitation, or
  violation of personal rights without fear of punishment,
  interference, coercion, or retaliation; and
               (24)  to have the guardian, on appointment and on
  annual renewal of the guardianship, explain the rights delineated
  in this subsection in the ward's native language, or preferred mode
  of communication, and in a manner accessible to the ward.
         SECTION 3.  Sections 1153.001(a) and (c), Estates Code, are
  amended to read as follows:
         (a)  Within one month after receiving letters of
  guardianship, a guardian of an estate shall provide notice
  requiring each person who has a claim against the estate to present
  the claim within the period prescribed by law. The notice must be:
               (1)  published in a newspaper of general circulation
  [printed] in the county in which the letters were issued; and
               (2)  sent to the comptroller by certified or registered
  mail, if the ward remitted or should have remitted taxes
  administered by the comptroller.
         (c)  If there is no [a] newspaper of general circulation [is
  not printed] in the county in which the letters of guardianship were
  issued, the notice must be posted and the return made and filed as
  otherwise required by this title.
         SECTION 4.  Section 1155.054(d), Estates Code, is amended to
  read as follows:
         (d)  If the court finds that a party in a guardianship
  proceeding acted in bad faith or without just cause in prosecuting
  or objecting to an application in the proceeding, the court may
  order [require] the party to reimburse the ward's estate for all or
  part of the attorney's fees awarded under this section and shall
  issue judgment against the party and in favor of the estate for the
  amount of attorney's fees ordered [required] to be reimbursed to
  the estate.
         SECTION 5.  Section 1155.151(a), Estates Code, is amended to
  read as follows:
         (a)  In a guardianship proceeding, the court costs of the
  proceeding, including the costs described by Subsection (a-1),
  shall, except as provided by Subsection (c), be paid as follows, and
  the court shall issue the judgment accordingly:
               (1)  out of the guardianship estate, if a guardianship
  of the estate has been created for the benefit of the ward and the
  court determines it is in the ward's best interest;
               (2)  out of the management trust, if a management trust
  has been created for the benefit of the ward under Chapter 1301 and
  the court determines it is in the ward's best interest;
               (3)  by the party to the proceeding who incurred the
  costs, unless that party filed, on the party's own behalf, an
  affidavit of inability to pay the costs under Rule 145, Texas Rules
  of Civil Procedure, that shows the party is unable to afford the
  costs, if:
                     (A)  there is no guardianship estate or no
  management trust has been created for the ward's benefit; or
                     (B)  the assets of the guardianship estate or
  management trust, as appropriate, are insufficient to pay the
  costs; or
               (4)  out of the county treasury if:
                     (A)(i)  there is no guardianship estate or
  management trust;
                           (ii)  [or] the assets of the guardianship
  estate or management trust, as appropriate, are insufficient to pay
  the costs; or
                           (iii)  a guardianship of the estate has been
  created for the benefit of the ward and the court determines it is
  not in the ward's best interest to pay the costs; and
                     (B)  the party to the proceeding who incurred the
  costs filed, on the party's own behalf, an affidavit of inability to
  pay the costs under Rule 145, Texas Rules of Civil Procedure, that
  shows the party is unable to afford the costs.
         SECTION 6.  Section 1163.005(a), Estates Code, is amended to
  read as follows:
         (a)  The guardian of the estate shall attach to an account
  the guardian's affidavit stating:
               (1)  that the account contains a correct and complete
  statement of the matters to which the account relates;
               (2)  that the guardian has paid the bond premium for the
  next accounting period;
               (3)  that the guardian has filed all tax returns of the
  ward due during the accounting period;
               (4)  that the guardian has paid all taxes the ward owed
  during the accounting period, the amount of the taxes, the date the
  guardian paid the taxes, and the name of the governmental entity to
  which the guardian paid the taxes; and
               (5)  if the guardian is a private professional
  guardian, a guardianship program, or the Health and Human Services
  Commission [Department of Aging and Disability Services], whether
  the guardian or an individual certified under Subchapter C, Chapter
  155 [111], Government Code, who is providing guardianship services
  to the ward and who is swearing to the account on the guardian's
  behalf, is or has been the subject of an investigation conducted by
  the Judicial Branch [Guardianship] Certification Commission
  [Board] during the accounting period.
         SECTION 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, 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.  Subchapter B, Chapter 1301, Estates Code, is
  amended by adding Section 1301.0511 to read as follows:
         Sec. 1301.0511.  NOTICE REQUIRED FOR APPLICATION FOR
  CREATION OF TRUST; CITATION OF APPLICANT NOT REQUIRED. (a) On the
  filing of an application for creation of a management trust and
  except as provided by Subsection (d), notice shall be issued and
  served in the manner provided by Subchapter C, Chapter 1051, for the
  issuance and service of notice on the filing of an application for
  guardianship.
         (b)  It is not necessary to serve a citation on a person who
  files an application for the creation of a management trust under
  this subchapter or for that person to waive the issuance and
  personal service of citation.
         (c)  If the person for whom an application for creation of a
  management trust is filed is a ward, the sheriff or other officer,
  in addition to serving the persons described by Section 1051.103,
  shall personally serve each guardian of the ward with citation to
  appear and answer the application.
         (d)  Notice under this section is not required if a
  proceeding for the appointment of a guardian is pending for the
  person for whom an application for creation of a management trust is
  filed.
         SECTION 9.  Section 1301.101(a), Estates Code, is amended to
  read as follows:
         (a)  Except as provided by Subsection (c), a management trust
  created for a ward or incapacitated person must provide that:
               (1)  the ward or incapacitated person is the sole
  beneficiary of the trust;
               (2)  the trustee may disburse an amount of the trust's
  principal or income as the trustee determines is necessary to spend
  for the health, education, maintenance, or support of the person
  for whom the trust is created;
               (3)  the trust income that the trustee does not
  disburse under Subdivision (2) must be added to the trust
  principal;
               (4)  a trustee that is a corporate fiduciary serves
  without giving a bond; [and]
               (5)  subject to the court's approval and Subsection
  (b), a trustee is entitled to receive reasonable compensation for
  services the trustee provides to the person for whom the trust is
  created as the person's trustee; and
               (6)  the trust terminates:
                     (A)  except as provided by Paragraph (B), if the
  person for whom the trust is created is a minor:
                           (i)  on the earlier of:
                                 (a)  the person's death; or
                                 (b)  the person's 18th birthday; or
                           (ii)  on the date provided by court order,
  which may not be later than the person's 25th birthday;
                     (B)  if the person for whom the trust is created is
  a minor and is also incapacitated for a reason other than being a
  minor:
                           (i)  on the person's death; or
                           (ii)  when the person regains capacity; or
                     (C)  if the person for whom the trust is created is
  not a minor:
                           (i)  according to the terms of the trust;
                           (ii)  on the date the court determines that
  continuing the trust is no longer in the person's best interests,
  subject to Section 1301.202(c); or
                           (iii)  on the person's death.
         SECTION 10.  Section 1301.154(b), Estates Code, is amended
  to read as follows:
         (b)  The trustee of a management trust created for a ward
  shall provide a copy of the annual account to each [the] guardian of
  the ward [ward's estate or person].
         SECTION 11.  Section 1301.203, Estates Code, is amended by
  amending Subsection (a) and adding Subsection (a-1) to read as
  follows:
         (a)  Except as provided by Subsection (a-1), if [If] the
  person for whom a management trust is created is a minor, the trust
  terminates on:
               (1)  the earlier of:
                     (A)  the person's death; or
                     (B)  the person's 18th birthday; or
               (2)  the date provided by court order, which may not be
  later than the person's 25th birthday.
         (a-1)  If the person for whom a management trust is created
  is a minor and is also incapacitated for a reason other than being a
  minor, the trust terminates:
               (1)  on the person's death; or
               (2)  when the person regains capacity.
         SECTION 12.  Sections 1355.002(b), (c), (d), (e), and (f),
  Estates Code, are amended to read as follows:
         (b)  This section applies only to a nonresident creditor who
  is:
               (1)  a nonresident minor and has a nonresident guardian
  of the estate appointed by a foreign court;
               (2)  [,] a nonresident person who is adjudged by a
  foreign court [of competent jurisdiction] to be incapacitated and
  has a nonresident guardian of the estate appointed by that
  court;[,] or
               (3)  the nonresident former ward of a guardianship
  terminated under Chapter 1204 who has no legal guardian qualified
  in this state.
         (c)  A debtor in this state who owes money to a nonresident
  creditor to whom this section applies may pay the money:
               (1)  to the creditor's guardian of the estate qualified
  in the domiciliary jurisdiction; or
               (2)  to the county clerk of:
                     (A)  any county in this state in which real
  property owned by the creditor is located; or
                     (B)  if the creditor is not known to own real
  property in this state, the county in which the debtor resides.
         (d)  A payment made under this section is for the nonresident
  creditor's account and for the nonresident creditor's use and
  benefit.
         (e)  A receipt for payment signed by the county clerk is
  binding on the nonresident creditor as of the date and to the extent
  of payment if the receipt states:
               (1)  the creditor's name; and
               (2)  the creditor's post office address, if the address
  is known.
         (f)  A county clerk who receives a payment under Subsection
  (c) for a nonresident creditor shall handle the money in the same
  manner as provided for a payment to the account of a resident
  creditor under Sections 1355.001, 1355.051, 1355.052, 1355.102,
  1355.103, and 1355.104. Those sections apply to the handling and
  disposition of money or any increase, dividend, or income paid to
  the clerk for the use, benefit, and account of the nonresident
  creditor to whom this section applies.
         SECTION 13.  Section 1355.105, Estates Code, is amended to
  read as follows:
         Sec. 1355.105.  WITHDRAWAL OF MONEY BY CREDITOR OR
  CREDITOR'S HEIR, [OR] REPRESENTATIVE, OR GUARDIAN. (a) On
  presentation to the court clerk of an order of a county or probate
  court of the county in which the money is held, money that is not
  withdrawn by an authorized person as provided by this chapter may be
  withdrawn by:
               (1)  the creditor, after termination of the creditor's
  disability;
               (2)  a subsequent personal representative of the
  creditor; [or]
               (3)  the creditor's heirs; or
               (4)  a nonresident guardian of the estate appointed by
  a foreign court for a creditor who is:
                     (A)  a nonresident minor; or
                     (B)  a nonresident person who is adjudged to be
  incapacitated.
         (b)  Except as provided by Subsection (b-1), a [A] withdrawal
  under Subsection (a) may be made at any time and without a special
  bond for that purpose.
         (b-1)  A court may require a nonresident guardian of the
  estate of a creditor who is a nonresident minor or nonresident
  incapacitated person as described by Subsection (a)(4) to provide
  proof that the nonresident guardian of the estate gave an adequate
  bond in the foreign jurisdiction if the court determines that it is
  in the nonresident minor's or nonresident incapacitated person's
  best interest.
         (c)  The order presented under Subsection (a) must direct the
  court clerk to deliver the money to:
               (1)  the creditor;
               (2)  [,] the creditor's personal representative;
               (3)  [, or] the creditor's heirs named in the order; or
               (4)  if the creditor is a nonresident minor or
  nonresident person who is adjudged to be incapacitated, the
  creditor's nonresident guardian of the estate.
         (d)  Before the court may issue an order under this section,
  the person's identity and credentials must be proved to the court's
  satisfaction. For purposes of this subsection, a nonresident
  guardian of the estate described by Subsection (c)(4) must present
  to the court exemplified copies of the order of a foreign court
  appointing the guardian and current letters of guardianship issued
  in the foreign jurisdiction.
         SECTION 14.  (a) Except as otherwise provided by this
  section, the changes in law made by this Act apply to:
               (1)  a guardianship created before, on, or after the
  effective date of this Act; and
               (2)  an application for a guardianship pending on, or
  filed on or after, the effective date of this Act.
         (b)  The changes in law made by this Act to Section 1021.001,
  Estates Code, apply only to an action filed on or after the
  effective date of this Act. An action filed before the effective
  date of this Act is governed by the law in effect on the date the
  action was filed, and the former law is continued in effect for that
  purpose.
         (c)  The changes in law made by this Act to Sections
  1155.054(d) and 1155.151(a), Estates Code, apply only to a
  guardianship proceeding commenced on or after the effective date of
  this Act. A guardianship proceeding commenced before the effective
  date of this Act is governed by the law in effect on the date the
  proceeding was commenced, and the former law is continued in effect
  for that purpose.
         (d)  Section 1301.0511, Estates Code, as added by this Act,
  applies only to an application for creation of a management trust
  filed on or after the effective date of this Act. An application
  for creation of a management trust filed before the effective date
  of this Act is governed by the law in effect on the date the
  application was filed, and the former law is continued in effect for
  that purpose.
         (e)  The changes in law made by this Act to Sections 1301.101
  and 1301.203, Estates Code, apply only to an application for the
  creation or modification of a management trust filed on or after the
  effective date of this Act. An application for the creation or
  modification of a management trust filed before the effective date
  of this Act is governed by the law in effect on the date the
  application was filed, and the former law is continued in effect for
  that purpose.
         (f)  The changes in law made by this Act to Section 1355.105,
  Estates Code, apply only to an application for an order for the
  delivery of money that is filed on or after the effective date of
  this Act. An application for an order for the delivery of money
  that is filed before the effective date of this Act is governed by
  the law in effect on the date the application was filed, and the
  former law is continued in effect for that purpose.
         SECTION 15.  This Act takes effect September 1, 2019.