88R21146 KFF-D
 
  By: Allison, Spiller, Hull H.B. No. 653
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to guardianships of the person of wards with profound
  intellectual disabilities who are minors or were minors when their
  guardianship proceedings commenced.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  This Act may be cited as Caleb's Law.
         SECTION 2.  Section 1054.001, Estates Code, is amended to
  read as follows:
         Sec. 1054.001.  APPOINTMENT OF ATTORNEY AD LITEM IN
  PROCEEDING FOR APPOINTMENT OF GUARDIAN.  In a proceeding under this
  title for the appointment of a guardian and except as provided by
  Section 1103A.001, the court shall appoint an attorney ad litem to
  represent the proposed ward's interests.
         SECTION 3.  Section 1054.151, Estates Code, is amended to
  read as follows:
         Sec. 1054.151.  INVESTIGATION OF GUARDIANSHIP APPLICATION.
  On the filing of an application for guardianship under Section
  1101.001 and except as provided by Section 1103A.001, a court
  investigator shall investigate the circumstances alleged in the
  application to determine whether a less restrictive alternative to
  guardianship is appropriate.
         SECTION 4.  Subtitle D, Title 3, Estates Code, is amended by
  adding Chapter 1103A to read as follows:
  CHAPTER 1103A. PROCEDURE TO APPOINT CAREGIVER PARENT AS INDEPENDENT
  GUARDIAN OF THE PERSON FOR CERTAIN MINORS REQUIRING GUARDIANSHIPS
  AS ADULTS
         Sec. 1103A.001.  PROCEDURE FOR APPOINTMENT OF CAREGIVER
  PARENT AS INDEPENDENT GUARDIAN OF THE PERSON OF CERTAIN MINORS WITH
  PROFOUND INTELLECTUAL DISABILITIES. (a) This section applies only
  to a proceeding for the appointment of a guardian of the person of a
  proposed ward under Section 1101.001 or 1103.001 in which the:
               (1)  proposed ward is a minor who:
                     (A)  has a profound intellectual disability, as
  diagnosed by a physician licensed to practice in this state or as
  determined, following an examination, by a psychologist licensed in
  this state or certified by the Health and Human Services Commission
  to perform the examination, in accordance with rules adopted by the
  executive commissioner of the commission governing examinations of
  that kind; and
                     (B)  because of the incapacity described by
  Paragraph (A) will require a guardianship of the person after the
  proposed ward is no longer a minor; and
               (2)  proposed guardian of the person is a parent and
  primary caregiver of the proposed ward.
         (b)  Notwithstanding any other law, if the applicant who
  files an application for appointment as guardian of the person of a
  proposed ward under Section 1101.001 or 1103.001 is the parent and
  primary caregiver of the proposed ward, the applicant may present
  to the court:
               (1)  an affidavit sworn to by the applicant that states
  that the applicant is a parent of a proposed ward described by
  Subsection (a)(1) and:
                     (A)  is and has been the primary caregiver of the
  proposed ward throughout all or most of the proposed ward's
  childhood;
                     (B)  has never been the subject of a substantiated
  allegation, complaint, or investigation concerning the abuse,
  neglect, or exploitation of the proposed ward; 
                     (C)  seeks to be appointed guardian of the person
  of the proposed ward; and
                     (D)  is not disqualified from serving as guardian
  under Subchapter H, Chapter 1104;
               (2)  at least one written letter or certificate that
  meets the requirements of:
                     (A)  Sections 1101.103(a) and (b); or
                     (B)  Section 1101.104, except that the period
  prescribed by Section 1101.104(2) would be calculated from the date
  the application is filed instead of the hearing date; and
               (3)  a written request that:
                     (A)  the court make the findings required by
  Section 1101.101 and appoint the parent as guardian of the person of
  the proposed ward in accordance with this section without the
  necessity of an investigation by a court investigator under Section
  1054.151; and
                     (B)  after appointment and qualification of the
  applicant as guardian of the person of the ward, no other action
  shall be had in the probate court in relation to the guardianship of
  the person of the ward other than the review required by Section
  1201.052(b).
         (c)  If, following a written request under Subsection (b)(3)
  and on receipt of an affidavit that complies with Subsection (b)(1)
  and a letter or certificate that complies with Subsection (b)(2),
  the court is able to make the findings required by Section 1101.101,
  the court, notwithstanding Subchapter C, Chapter 1104, shall
  appoint the parent as guardian of the proposed ward's person
  without appointing a court investigator or the continued
  appointment of an attorney ad litem unless:
               (1)  the parent is disqualified from serving as
  guardian under Subchapter H, Chapter 1104;
               (2)  the court has any reason to believe that one or
  more of the assertions set out in the affidavit are untrue; or
               (3)  the court finds that the appointment is not in the
  best interest of the proposed ward.
         (d)  A guardianship created under this section is considered
  an independent guardianship of the person of a ward, and a guardian
  appointed under this section is considered an independent guardian
  of the person of a ward.
         Sec. 1103A.002.  SEALING OF CERTAIN RECORDS. (a) The court
  shall seal a written letter or certificate submitted under Section
  1103A.001(b) and any other medical record or document examined by
  the court for purposes of this section unless the court finds good
  cause not to seal the document.
         (b)  The court's records sealed under this section are not
  open for inspection by any person except:
               (1)  on further order of the court after notice to the
  guardian of the person of the ward whose information is sealed and a
  finding of good cause; or
               (2)  in connection with a criminal or civil proceeding
  as otherwise provided by law.
         Sec. 1103A.003.  PETITION FOR CONVERSION OF GUARDIANSHIP OF
  THE PERSON TO INDEPENDENT GUARDIANSHIP OF THE PERSON. (a)  This
  section applies only to a guardianship of the person of a ward
  created before September 1, 2023, if on the date the application for
  guardianship was filed under Section 1101.001 or 1103.001:
               (1)  the ward met the description of a proposed ward
  under Section 1103A.001(a)(1); and
               (2)  the guardian was the parent and primary caregiver
  of the ward.
         (b)  The guardian in a guardianship to which this section
  applies may petition the court with jurisdiction over the
  guardianship to authorize that the guardianship of the person be
  treated on a prospective basis as if the guardianship was created
  and, if applicable, the guardian of the person appointed, under
  Section 1103A.001.
         SECTION 5.  Section 1105.101(c), Estates Code, is amended to
  read as follows:
         (c)  The court shall issue letters of guardianship of the
  person to a person without the requirement of a bond if:
               (1)  the person is:
                     (A)  a parent of the ward appointed under Section
  1103A.001 who is not also appointed as guardian of the estate of the
  ward; or
                     (B)  named to be appointed guardian in a will made
  by a surviving parent that is probated by a court in this state, or
  in a written declaration made by a surviving parent, and the will or
  declaration directs that the guardian serve without a bond; and
               (2)  the court finds that the guardian is qualified.
         SECTION 6.  Section 1106.002, Estates Code, is amended to
  read as follows:
         Sec. 1106.002.  EXPIRATION OF LETTERS OF GUARDIANSHIP. (a)
  Except as provided by Subsection (b), letters [Letters] of
  guardianship expire one year and four months after the date the
  letters are issued, unless renewed.
         (b)  Unless the court finds that it is not in the best
  interest of the ward, letters of guardianship issued to a guardian
  of the person of a ward appointed under Section 1103A.001 do not
  expire unless the guardian is removed or would otherwise be
  ineligible to serve as guardian.
         SECTION 7.  Section 1163.101, 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), once [Once] each
  year for the duration of the guardianship, a guardian of the person
  shall file with the court a report that contains the information
  required by this section.
         (a-1)  Unless the court finds that it is not in the best
  interest of the ward, a guardian of the person of a ward appointed
  under Section 1103A.001 is not required to file an annual report
  under this section.
         SECTION 8.  The heading to Subchapter B, Chapter 1201,
  Estates Code, is amended to read as follows:
  SUBCHAPTER B. [ANNUAL] DETERMINATION TO CONTINUE, MODIFY, OR
  TERMINATE GUARDIANSHIP
         SECTION 9.  Section 1201.052, Estates Code, is amended to
  read as follows:
         Sec. 1201.052.  ANNUAL OR OTHER DETERMINATION. (a) To
  determine whether a guardianship should be continued, modified, or
  terminated, the court in which the guardianship proceeding is
  pending:
               (1)  shall, except as provided by Subsection (b),
  review annually each guardianship in which the application to
  create the guardianship was filed after September 1, 1993; and
               (2)  may review annually any other guardianship.
         (b)  To determine whether a guardianship of the person of a
  ward created under Section 1103A.001 should be continued, modified,
  or terminated, the court in which the guardianship proceeding is
  pending shall review the guardianship of the person at the
  discretion of the court but not more frequently than once every five
  years unless the guardian of the person of the ward is also the
  guardian of the estate of the ward.
         (c)  Notwithstanding Subsection (b), on receipt of a claim
  that the guardianship is no longer in the best interest of the ward,
  the court may review the matter and take any action the court
  determines necessary.
         SECTION 10.  The changes in law made by this Act apply to a
  guardianship proceeding that is pending or commenced on or after
  the effective date of this Act.
         SECTION 11.  This Act takes effect immediately if it
  receives a vote of two-thirds of all the members elected to each
  house, as provided by Section 39, Article III, Texas Constitution.
  If this Act does not receive the vote necessary for immediate
  effect, this Act takes effect September 1, 2023.