By: Zaffirini S.B. No. 1606

(In the Senate - Filed March 6, 2023; March 16, 2023, read first time and referred to Committee on Jurisprudence; April 6, 2023, rereferred to Committee on State Affairs; April 19, 2023, reported adversely, with favorable Committee Substitute by the following vote: Yeas 10, Nays 0; April 19, 2023, sent to printer.) Click here to see the committee vote

COMMITTEE SUBSTITUTE FOR S.B. No. 1606 By: Hughes

A BILL TO BE ENTITLED

AN ACT

relating to evidence and orders regarding intellectual disability or mental condition in certain guardianship proceedings.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 1101.104, Estates Code, is amended to read as follows:

Sec. 1101.104. EXAMINATIONS AND DOCUMENTATION REGARDING INTELLECTUAL DISABILITY. (a) If an intellectual disability is the basis of the proposed ward's alleged incapacity, the court may not grant an application to create a guardianship for the proposed ward unless the applicant presents to the court a written letter or certificate that:

(1) complies with Sections 1101.103(a) and (b); 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 [Department of Aging and Disability] Services Commission to perform the examination, in accordance with rules of the executive commissioner of the commission [Health and Human Services Commission] governing examinations of that kind, and the physician's or psychologist's written findings and recommendations include a determination of an intellectual disability; or

(B) a physician or psychologist licensed in this state or certified by the Health and Human [Department of Aging and Disability] Services Commission to perform examinations described by Paragraph (A) updated or endorsed in writing a prior determination of an intellectual disability for the proposed ward made by a physician or psychologist licensed in this state or certified by the commission [department].

(b) A physician or psychologist described by Subsection (a)(2)(A) must:

(1) have experience examining individuals with an intellectual disability; or

(2) have an established patient-provider relationship with the proposed ward.

SECTION 2. Section 1202.152(a), Estates Code, is amended to read as follows:

(a) Except as provided by Section 1202.1521, the [The] court may not grant an order completely restoring a ward's capacity or modifying a ward's guardianship under an application filed under Section 1202.051 unless the applicant presents to the court a written letter or certificate from a physician licensed in this state that is dated:

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

(2) after the date the application was filed but before the date of the hearing.

SECTION 3. Subchapter D, Chapter 1202, Estates Code, is amended by adding Section 1202.1521 to read as follows:

Sec. 1202.1521. PHYSICIAN'S LETTER OR CERTIFICATE: REQUIREMENTS IF ALLEGED INCAPACITY BASED ON INTELLECTUAL DISABILITY. (a) If an intellectual disability is the basis of a ward's alleged incapacity, instead of the letter or certificate required under Section 1202.152(a), the court shall, subject to Subsection (c), consider a written letter or certificate the applicant presents from:

(1) a physician licensed in this state; or

(2) 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.

(b) The letter or certificate must:

(1) 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 activities listed in Section 1202.152(b)(1);

(2) state 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 capacity;

(3) include any other information required by the court; and

(4) be dated within the period prescribed by Section 1202.152(a)(1) or (2).

(c) The physician or psychologist who provides a letter or certificate under this section must have:

(1) experience examining individuals with an intellectual disability; or

(2) an established patient-provider relationship with the ward.

SECTION 4. Section 1202.155, Estates Code, is amended to read as follows:

Sec. 1202.155. ADDITIONAL REQUIREMENTS FOR ORDER RESTORING WARD'S CAPACITY. If the court finds that a ward is no longer an incapacitated person, the order completely restoring the ward's capacity must contain findings of fact and specify, in addition to the information required by Section 1202.154:

(1) that the ward is no longer an incapacitated person;

(2) that there is no further need for a guardianship of the person or estate of the ward;

(3) [if the ward's incapacity resulted from a mental condition, that the ward's mental capacity is completely restored;

[(4)] that the guardian is required to:

(A) immediately settle the guardianship in accordance with this title; and

(B) deliver all of the remaining guardianship estate to the ward; and

(4) [(5)] that the clerk shall revoke letters of guardianship when the guardianship is finally settled and closed.

SECTION 5. The changes in law made by this Act apply 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 effective date of this Act. An application filed before the effective date of this Act is governed by the law in effect on the date the application was filed, and the former law is continued in effect for that purpose.

SECTION 6. This Act takes effect September 1, 2023.

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