BILL ANALYSIS

Senate Research Center	S.B. 1606
88R3495 EAS-D	By: Zaffirini
	State Affairs
	4/6/2023
	As Filed

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

Guardianship is a legal tool that allows a person to make decisions for another person. It removes the civil rights and privileges of a person by assigning control of their life to someone else. The need for guardianship may come from a person's age, disability or injury. Guardianship provides for the 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 indicated by the person's actual mental or physical limitations and as necessary to promote and protect their well-being. It is 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. What's more, it is difficult to modify a guardianship and even more challenging for persons to get their rights completely restored. Generally, S.B. 1606 would implement guardianship recommendations from the Governor's Committee on People with Disabilities to address these issues.

Specifically, S.B. 1606 would require physicians to provide information regarding their specific specialty to assure the court they have the relevant knowledge and experience to conduct the capacity evaluation that would be used in the guardianship proceeding. What's more, S.B. 1606 would allow a licensed psychologist to offer evidence in restoration and/or modification hearings for persons with intellectual and developmental disabilities. This would expand the number of mental health professionals that can help persons seeking to have their rights restored. S.B. 1606 also 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 and developmental disabilities in the guardianship process.

As proposed, S.B. 1606 amends current law relating to evidence and orders regarding intellectual disability or mental condition in certain guardianship proceedings.

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 1101.104, Estates Code, as follows:

Sec. 1101.104. EXAMINATIONS AND DOCUMENTATION REGARDING INTELLECTUAL DISABILITY. (a) Creates this subsection from existing text. Prohibits a court from granting an application to create a guardianship for the proposed ward, if an intellectual disability is the basis of the proposed ward's alleged incapacity, unless the applicant presents to the court a written letter or certificate that:

(1) makes no changes to this subdivision; or

(2) shows that not earlier than 24 months before the hearing date:

(A) the proposed ward has been examined by a physician or psychologist licensed in this state or certified by the Health and Human Services Commission (HHSC), rather than the Department of Aging and Disability Services, to perform the examination, in accordance with rules of the executive commissioner of HHSC governing examinations of that kind, and the physician's or psychologist's written findings and recommendations include a determination of intellectual disability; or

(B) makes conforming changes to this paragraph.

(b) Requires a physician or psychologist described by Subsection (a)(2)(A) to have experience examining individuals with an intellectual disability.

SECTION 2. Amends Section 1202.152(a), Estates Code, to create an exception under Section 1202.1521.

SECTION 3. Amends Subchapter D, Chapter 1202, Estates Code, by adding Section 1202.1521, as follows:

Sec. 1202.1521. EXAMINATIONS AND DOCUMENTATION REGARDING INTELLECTUAL DISABILITY. Prohibits the court from granting an order completely restoring a ward's capacity or modifying a ward's guardianship under an application filed under Section 1202.051, if an intellectual disability is the basis of the proposed ward's alleged incapacity, unless the applicant presents to the court a written letter or certificate:

(1) from a physician licensed in this state that complies with Sections 1202.152(a) (relating to prohibiting a court from granting an order completely restoring a ward's capacity or modifying a ward's guardianship unless the applicant presents to the court a written letter or certificate from a physician licensed in this state) and (b) (relating to requiring that the letter or certificate presented under Subsection (a) describe� the nature and degree of incapacity including certain criteria); or

(2) from a psychologist licensed in this state that:

(A) is dated:

(i) not earlier than the 120th day before the date the application was filed; or

(ii) after the date the application was filed but before the date of the hearing;

(B) shows the ward has been examined by the psychologist within the period prescribed by Paragraph (A)(i) or (ii);

(D)� states, in the psychologist's opinion, whether the ward has the capacity, or sufficient capacity with supports and services, to do any of the activities listed in Section 1202.152(b)(1) (relating to requiring a letter or certificate to describe the nature and degree of incapacity including the medical history if reasonably available, or state that, in the physician's opinion, the ward has the capacity to perform certain tasks);

(E) states how or in what manner the ward's ability to make or communicate reasonable decisions concerning himself or herself is affected by the ward's mental health; and

(F) includes any other information required by the court.

SECTION 4. Amends Section 1202.155, Estates Code, as follows:

Sec. 1202.155. ADDITIONAL REQUIREMENTS FOR ORDER RESTORING WARD'S CAPACITY.� Deletes existing text requiring the order completely restoring the ward's capacity, if the court finds that the ward is no longer an incapacitated person, to contain findings of fact and specify, in addition to the information required by Section 1202.154 (General Requirements for Order) that the ward's mental capacity is completely restored if the ward's incapacity resulted from a mental condition. Makes nonsubstantive changes.

SECTION 5. Makes application of this Act prospective.

SECTION 6. Effective date: September 1, 2023.