87R6714 KFF-F
 
  By: Zaffirini S.B. No. 960
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to a pilot program that allows counties to establish
  public guardians for certain incapacitated persons.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 1104, Estates Code, is amended by adding
  Subchapter G-1 to read as follows:
  SUBCHAPTER G-1. PILOT PROGRAM TO ESTABLISH PUBLIC GUARDIANS
         Sec. 1104.326.  DEFINITIONS. In this subchapter:
               (1)  "Office," unless the context requires otherwise,
  means an office of public guardian established under the pilot
  program.
               (2)  "Participating county" means a county that
  participates in the pilot program.
               (3)  "Pilot program" means the pilot program
  established under Section 1104.327.
         Sec. 1104.327.  ESTABLISHMENT OF PILOT PROGRAM; PUBLIC
  GUARDIANS. (a)  Not later than January 1, 2022, the Office of Court
  Administration of the Texas Judicial System shall develop and
  implement a pilot program under which the office will assist one or  
  more counties that elect to participate in the program to establish
  public guardians in accordance with this subchapter.  The program
  must require, if a county elects to participate in the program, that
  the commissioners court of the county by order:
               (1)  create an office of public guardian to provide
  guardianship services described by Section 1104.334 to
  incapacitated persons; 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
  described by Section 1104.334 to incapacitated persons.
         (b)  Subject to Subsection (c) and Section 1104.328, the
  commissioners court of a participating county shall appoint an
  individual as public guardian to administer the office of public
  guardian established under Subsection (a)(1) and may employ or
  authorize the public guardian to employ personnel necessary to
  perform the duties of the office, including personnel who will
  represent the interests of a ward as a guardian on behalf of the
  office if approved by the commissioners court.
         (c)  The commissioners court of a participating county may
  enter into an agreement with an individual to act as public guardian
  under Subsection (b) on a part-time basis with appropriate
  compensation if:
               (1)  the commissioners court determines a full-time
  appointment does not serve the needs of the county; and
               (2)  the individual who is appointed on a part-time
  basis is not employed in or does not hold another position that
  presents a conflict of interest.
         (d)  The commissioners courts of two or more participating
  counties may collectively enter into an agreement:
               (1)  to create and fund an office of public guardian for
  purposes of Subsection (a)(1) and to appoint the same individual as
  public guardian to that office under Subsection (b); or
               (2)  with a person operating a guardianship program
  described by Subsection (a)(2) to serve as a public guardian for
  purposes of that subdivision.
         (e)  An individual appointed as public guardian under
  Subsection (b) serves a term that expires on September 1, 2023.
         Sec. 1104.328.  QUALIFICATIONS OF PUBLIC GUARDIAN. To be
  appointed as public guardian under Section 1104.327(b), an
  individual must:
               (1)  be a licensed attorney or be certified under
  Subchapter C, Chapter 155, Government Code; and
               (2)  have demonstrable guardianship experience.
         Sec. 1104.329.  CONFLICT OF INTEREST. (a)  Except as
  provided by Subsection (b), an office or a public guardian must be
  independent from providers of services to wards and proposed wards
  and may not directly provide housing, medical, legal, or other
  direct, non-surrogate decision-making services to a ward or
  proposed ward, unless approved by the court.
         (b)  An office or a public guardian may provide money
  management services described by Section 531.125, Government Code,
  or other representative payee services to a ward or proposed ward.
         Sec. 1104.330.  COMPENSATION. A person appointed or acting
  as public guardian under Section 1104.327 shall receive
  compensation as set by the commissioners court and is not entitled
  to compensation under Subchapter A, Chapter 1155, unless approved
  by the court or the person is appointed as guardian of a ward in
  accordance with Section 1104.334(a)(2)(B).
         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 participating county and
  issued by a surety company approved by the county judge. The bond
  must be conditioned on the faithful performance by the person of the
  person's duties and, if the public guardian administers an office,
  the office's duties.
         (b)  The bond required by this section satisfies any bond
  required under Chapter 1105.
         Sec. 1104.332.  VACANCY. If an individual appointed as
  public guardian under Section 1104.327(b) vacates the position, the
  commissioners court of the participating county shall appoint,
  subject to Section 1104.328, an individual to serve as public
  guardian for the unexpired term.
         Sec. 1104.333.  POWERS AND DUTIES. (a)  An office or a
  public guardian shall:
               (1)  if applicable, evaluate the financial status of a
  proposed ward to determine whether the proposed ward is eligible to
  have the office or public guardian appointed guardian of the ward
  under Section 1104.334(a)(2)(A); and
               (2)  serve as guardian of the person or of the estate of
  a ward, or both, on appointment by a court in accordance with the
  requirements of this title.
         (b)  In connection with a financial evaluation under
  Subsection (a)(1) and on the request of an office or 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 office or public
  guardian.
         (c)  Notwithstanding Section 552.261, Government Code, a
  state agency may not charge an office or a public guardian for
  providing the office or public guardian with a copy of public
  information requested from the agency by the office or public
  guardian.
         Sec. 1104.334.  APPOINTMENT OF OFFICE OR PUBLIC GUARDIAN AS
  GUARDIAN. (a)  In accordance with applicable law, including
  Subchapter C, Chapter 1101, a court may appoint an office or a
  public guardian to serve as guardian of the person or of the estate
  of a ward, or both, if:
               (1)  on the date the guardianship application is filed,
  the ward resides in or is located in a participating county served
  by an office or a public guardian; and
               (2)  the court finds that the ward:
                     (A)  does not have sufficient assets or other
  resources to pay a private professional guardian to serve as the
  ward's guardian and the appointment is in the ward's best interest;
  or
                     (B)  has sufficient assets or other resources to
  pay a private professional guardian to serve as the ward's
  guardian, the appointment is in the ward's best interest, and:
                           (i)  the ward's family members who are
  eligible for appointment as the ward's guardian agree to the
  appointment of an office or a public guardian to serve as the ward's
  guardian or are unable to agree on the person or persons that should
  be appointed as the ward's guardian; or
                           (ii)  the ward does not have a family member,
  friend, or other suitable person 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 complexity of services
  required by the ward; and
               (5)  additional, foreseeable expenses.
         (c)  The number of appointments of an office under the pilot
  program may not exceed 35 wards for each guardian representing the
  interests of wards on behalf of the office.
         (d)  If each guardian representing the interests of wards on
  behalf of an office reaches the limitation provided by Subsection
  (c), the office shall immediately give notice to the courts.
         Sec. 1104.335.  CONFIDENTIALITY AND DISCLOSURE OF
  INFORMATION. (a)  All files, reports, records, communications, or
  working papers used or developed by an office or a 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 a public
  guardian to exercise the powers and duties as guardian of the person
  or of the estate of a ward, or both.
         (c)  A court on its own motion or on the motion of an
  interested person may order disclosure of confidential information
  only if:
               (1)  a hearing on the motion is conducted;
               (2)  notice of the hearing is served on the office or
  public guardian and each interested person; and
               (3)  the court determines after the hearing and an in
  camera review of the information that disclosure is essential to
  the administration of justice and will not endanger the life or
  safety of any individual who:
                     (A)  is being assessed for guardianship services;
                     (B)  is a ward of the office or public guardian; or
                     (C)  provides services to a ward of the office or
  public guardian.
         (d)  The Office of Court Administration of the Texas Judicial
  System shall establish policies and procedures for the exchange of
  information between offices, public guardians, and other
  appropriate governmental entities, as necessary for offices,
  public guardians, and governmental entities to properly execute
  their respective duties and responsibilities relating to
  guardianship services or other needed services for a ward. An
  exchange of information under this subsection does not constitute a
  release for purposes of waiving the confidentiality of the
  information exchanged.
         (e)  To the extent consistent with policies and procedures
  adopted by an office or a 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 a 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 a public guardian is appointed guardian of the person or
  of the estate of a ward, or both, the administrative costs of the
  guardianship services provided to the ward may not be charged to the
  ward's estate unless the court determines, subject to Subsection
  (b), that the ward is financially able to pay all or part of the
  costs.
         (b)  A court shall measure a ward's ability to pay for costs
  under Subsection (a) by whether the ward has sufficient assets or
  other resources to pay a private professional guardian to serve as
  the ward's guardian in accordance with Section 1104.334(b).
         Sec. 1104.337.  COSTS OF GUARDIANSHIP PROCEEDING GENERALLY.
  Notwithstanding any other law requiring the payment of court costs
  in a guardianship proceeding and in accordance with Section
  1155.151(a-2)(5), an office is not required to pay court costs on
  the filing of or during a guardianship proceeding.
         Sec. 1104.338.  CONTRACT WITH HEALTH AND HUMAN SERVICES
  COMMISSION TO PROVIDE GUARDIANSHIP SERVICES. A contract under
  Section 161.103, Human Resources Code, may allow for the provision
  of guardianship services by an office.
         Sec. 1104.339.  FUNDING USING SUPPLEMENTAL COURT-INITIATED
  GUARDIANSHIP FEE; MONITORING.  (a)  Notwithstanding Section
  118.067, Local Government Code, if a county participates in the
  pilot program, the "supplemental court-initiated guardianship fee"
  under Section 118.052(2)(E), Local Government Code, may be used to
  support guardianship services provided by public guardians.
         (b)  The Office of Court Administration of the Texas Judicial
  System shall monitor participating counties to ensure money is
  appropriately used in compliance with this section.
         Sec. 1104.340.  ACCESS TO CRIMINAL HISTORY RECORD
  INFORMATION; AUTHORITY TO CHARGE FEE.  (a) The clerk of a
  participating 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 and
  may charge a fee in the manner and amount provided by Section
  1104.402 relating to:
               (1)  a public guardian appointed under Section
  1104.327(b);
               (2)  each person who represents or plans to represent
  the interests of a ward as a guardian on behalf of an office; or
               (3)  each person employed by an office 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.
         (b)  The Department of Public Safety shall provide a report
  requested under this section to the clerk in the manner provided by
  Section 411.1386, Government Code.
         Sec. 1104.341.  USE OF CRIMINAL HISTORY RECORD INFORMATION.
  The court shall use the information obtained under Section 1104.340
  only in determining whether to appoint, remove, or continue the
  appointment of an office.
         Sec. 1104.342.  ADDITION TO VERIFICATION OF ACCOUNT AND
  STATEMENT REGARDING TAXES AND STATUS AS GUARDIAN. In addition to
  the other requirements of Section 1163.005, an affidavit attached
  to an account under that section must state whether the public
  guardian or an individual certified under Subchapter C, Chapter
  155, 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 Certification Commission during the accounting
  period.
         Sec. 1104.343.  GUARDIAN'S AFFIDAVIT ON ANNUAL REPORT.  In
  addition to the other requirements of Section 1163.101(c), an
  affidavit under that subsection must state whether the public
  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 Certification Commission during the preceding year.
         Sec. 1104.344.  MINIMUM STANDARDS FOR GUARDIANSHIP
  SERVICES. The Office of Court Administration of the Texas Judicial
  System shall consult with the Judicial Branch Certification
  Commission to adopt minimum standards for the provision of
  guardianship services by offices under the pilot program.
         Sec. 1104.345.  CERTIFICATION OF CERTAIN OFFICE PERSONNEL.
  An individual who will provide guardianship services to a ward of an
  office or represent the interests of a ward as a guardian on behalf
  of a public guardian must hold a certificate issued under
  Subchapter C, Chapter 155, Government Code.
         Sec. 1104.346.  REPORTS BY OFFICES. Not later than
  September 1, 2022, each office of public guardian established under
  the pilot program shall provide to the Office of Court
  Administration of the Texas Judicial System a report containing:
               (1)  the number of wards served by the office under the
  pilot program;
               (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 participating 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.
         Sec. 1104.347.  REPORT ON PILOT PROGRAM. (a)  Not later than
  December 1, 2022, 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 the pilot program,
  including the establishment and operation of offices of public
  guardians under the program and the provision of guardianship
  services by the offices. The report must include:
               (1)  an analysis of costs and offsetting savings or
  other benefits to the state as a result of the establishment and
  operation of offices and public guardians under the program; and
               (2)  recommendations for legislation, if any.
         (b)  If it is cost-effective and feasible, the Office of
  Court Administration of the Texas Judicial System may contract with
  an appropriate research or public policy entity with expertise in
  gerontology, disabilities, and public administration to conduct
  the analysis described by Subsection (a)(1).
         Sec. 1104.348.  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 the pilot program.
         Sec. 1104.349. EXPIRATION.  The pilot program terminates and
  this subchapter expires on September 1, 2023.
         SECTION 2.  Not later than January 1, 2022, the supreme court
  shall adopt rules necessary to develop and implement the pilot
  program required by Subchapter G-1, Chapter 1104, Estates Code, as
  added by this Act, including rules governing:
               (1)  the transfer of a guardianship of the person or of
  the estate of a ward, or both, if appropriate, to an office of
  public guardian established under that program or a public guardian
  contracted under that program; and
               (2)  the transfer or continuation of a guardianship of
  the person or of the estate of a ward, or both, if appropriate, from
  an office of public guardian established under the program or a
  public guardian contracted under the program on the expiration of
  the program.
         SECTION 3.  This Act takes effect September 1, 2021.