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.