BILL ANALYSIS

S.B. 1606

By: Zaffirini

Judiciary & Civil Jurisprudence

Committee Report (Unamended)

BACKGROUND AND PURPOSE

The need for guardianship may arise from a person's age, disability, or injury. Guardianship provides for a person's care and management of their money while preserving, to the largest extent possible, that person's independence and right to make decisions affecting their life. A guardianship should be only as restrictive as warranted by the person's actual mental or physical limitations and as necessary to promote and protect their well-being. It is also important that all of the parties involved in the guardianship process be trained to help families select the best option for their family member with a disability, as it is difficult to modify a guardianship and even more challenging for persons to have their rights completely restored.

S.B. 1606 seeks to address these issues by implementing guardianship recommendations from the Texas Governor's Committee on People with Disabilities. Specifically, S.B. 1606 would establish a preference for a physician or psychologist conducting a capacity evaluation used in a guardianship proceeding for an individual with an intellectual disability to have experience examining such individuals. The bill also allows a licensed psychologist to offer evidence in restoration or modification hearings for individuals with intellectual disabilities, which would expand the number of mental health professionals that can help persons seeking to have their rights restored. Finally, the bill would allow persons who continue to be diagnosed with a mental condition, but have sufficient capacity with supports and services, to be eligible for the restorations of their rights. These changes would better preserve the rights of persons with mental health conditions or intellectual disabilities in the guardianship process.

CRIMINAL JUSTICE IMPACT

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

S.B. 1606 amends the Estates Code to make the existing requirements for the letter or certificate from a physician that must be presented to the court by an applicant for modification of a ward's guardianship or restoration of a ward's capacity inapplicable when the basis of the ward's alleged incapacity is an intellectual disability. The bill sets out new provisions that apply with respect to such a ward requiring the court to consider a written letter or certificate the applicant presents from either a physician licensed in Texas or a psychologist licensed in Texas or certified by the Health and Human Services Commission (HHSC) to perform the examination, in accordance with rules adopted by the executive commissioner of HHSC governing examinations of that kind. The bill requires the letter or certificate to satisfy the following criteria:

· state, in the physician's or psychologist's opinion, whether the ward has the capacity, or sufficient capacity with supports and services, to do any of the following activities:

o provide the ward food, clothing, and shelter;

o care for the ward's own physical health; and

o manage the ward's financial affairs;

· state how or in what manner the ward's ability to make or communicate reasonable decisions concerning themselves is affected by the ward's mental capacity;

· include any other information required by the court; and

· be dated not earlier than the 120th day before the date the application was filed or after the date the application was filed but before the date of the hearing. 

S.B. 1606 establishes that a physician or psychologist who provides such a letter or certificate or who conducts a capacity evaluation for a proposed ward with an intellectual disability in a proceeding for the appointment of a guardian must preferably have experience examining individuals with an intellectual disability. For purposes of this provision, a physician or psychologist is considered to have experience examining individuals with an intellectual disability if the physician or psychologist has an established patient-provider relationship with the ward or proposed ward, as applicable.

S.B. 1606 removes the requirement for an order completely restoring a ward's capacity to specify that the ward's mental capacity is completely restored if the ward's incapacity resulted from a mental condition.

S.B. 1606 applies only to an application for the appointment of a guardian, for the complete restoration of a ward's capacity, or for the modification of a guardianship, as applicable, that is filed on or after the bill's effective date.

EFFECTIVE DATE

September 1, 2023.