H.B. No. 2029
1-1 AN ACT
1-2 relating to guardianships and incapacitated persons.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 594.036(b), Health and Safety Code, is
1-5 amended to read as follows:
1-6 (b) Notice shall also be served on the parents if the
1-7 resident is a minor and on the guardian for the resident's person
1-8 if the resident has been declared to be incapacitated <incompetent>
1-9 as provided by the Texas Probate Code and a guardian has been
1-10 appointed.
1-11 SECTION 2. Section 48.021(e), Human Resources Code, is
1-12 amended to read as follows:
1-13 (e) The department shall file an application under Section
1-14 682 <110A> or 875 <131(b)> of the Texas Probate Code to be
1-15 appointed guardian of the person and estate of an individual who is
1-16 a minor, is a conservatee of the department, and, because of a
1-17 physical or mental condition, will be substantially unable to
1-18 provide food, clothing, or shelter for himself or herself, to care
1-19 for the individual's own physical health, or to manage the
1-20 individual's own financial affairs when the individual becomes an
1-21 adult.
1-22 SECTION 3. Section 30, Chapter 173, Acts of the 47th
1-23 Legislature, Regular Session, 1941 (Article 6687b, Vernon's Texas
1-24 Civil Statutes), is amended to read as follows:
2-1 Sec. 30. Revocation of License for Medical Reasons. It
2-2 shall be unlawful for any person to act as a driver of a motor
2-3 vehicle who is chemically dependent <addicted to the use of alcohol
2-4 or a controlled substance>, or who has been adjudged totally
2-5 incapacitated or incapacitated to act as a driver of a motor
2-6 vehicle <mentally incompetent> and has not been restored to
2-7 capacity <competency> by judicial decree or released from a
2-8 hospital for the mentally incapacitated <incompetent> upon a
2-9 certificate of the superintendent that such person has regained
2-10 capacity <is competent>. A finding that a person is chemically
2-11 dependent <addicted to the use of alcohol or a controlled
2-12 substance> must be based on a determination by the court that the
2-13 person is psychologically or physiologically dependent on alcohol
2-14 or a controlled substance. Any finding by any court of competent
2-15 jurisdiction that any person holding a driver's license is totally
2-16 incapacitated or incapacitated to act as a driver of a motor
2-17 vehicle <mentally incompetent> or chemically dependent <addicted to
2-18 the use of alcohol or a controlled substance> shall carry with it a
2-19 revocation of the driver's license. It shall be the duty of the
2-20 clerk of any court in which such findings are made, to certify same
2-21 to the Department within ten (10) days.
2-22 SECTION 4. Section 3, Texas Probate Code, is amended by
2-23 amending Subsection (p) and adding Subsection (mm) to read as
2-24 follows:
2-25 (p) "Incapacitated" or "Incapacitated person" means:
2-26 (1) a minor;
2-27 (2) an adult individual who, because of a
3-1 physical or mental condition, is substantially unable to provide
3-2 food, clothing, or shelter for himself or herself, to care for the
3-3 individual's own physical health, or to manage the individual's own
3-4 financial affairs;
3-5 (3) a missing person; or
3-6 (4) a person who must have a guardian appointed
3-7 to receive funds due the person from any governmental source
3-8 <"Incompetents" or "Incompetent persons" are persons non compos
3-9 mentis, mentally disabled persons, insane persons, common or
3-10 habitual drunkards, and other persons who are mentally incompetent
3-11 to care for themselves or to manage their property and financial
3-12 affairs>.
3-13 (mm) "Ward" is a person for whom a guardian has been
3-14 appointed.
3-15 SECTION 5. Section 37A, Texas Probate Code, is amended to
3-16 read as follows:
3-17 Sec. 37A. Means of Evidencing Disclaimer or Renunciation of
3-18 Property or Interest Receivable From a Decedent. Any person, or
3-19 the guardian <personal representative> of an incapacitated person
3-20 <incompetent>, the personal representative of a deceased person, or
3-21 the guardian ad litem of an unborn or unascertained<, or minor>
3-22 person, with prior court approval of the court having, or which
3-23 would have, jurisdiction over such guardian, personal
3-24 representative, or guardian ad litem, or any independent executor
3-25 of a deceased person, without prior court approval, who may be
3-26 entitled to receive any property as a beneficiary and who intends
3-27 to effect disclaimer irrevocably on or after September 1, 1977, of
4-1 the whole or any part of such property shall evidence same as
4-2 herein provided. A disclaimer evidenced as provided herein shall
4-3 be effective as of the death of decedent and shall relate back for
4-4 all purposes to the death of the decedent and is not subject to the
4-5 claims of any creditor of the disclaimant. Unless the decedent's
4-6 will provides otherwise, the property subject to the disclaimer
4-7 shall pass as if the person disclaiming or on whose behalf a
4-8 disclaimer is made had predeceased the decedent and a future
4-9 interest that would otherwise take effect in possession or
4-10 enjoyment after the termination of the estate or interest that is
4-11 disclaimed takes effect as if the disclaiming beneficiary had
4-12 predeceased the decedent. Failure to comply with the provisions
4-13 hereof shall render such disclaimer ineffective except as an
4-14 assignment of such property to those who would have received same
4-15 had the person attempting the disclaimer died prior to the
4-16 decedent. The term "property" as used in this section shall
4-17 include all legal and equitable interests, powers, and property,
4-18 whether present or future, whether vested or contingent, and
4-19 whether beneficial or burdensome, in whole or in part. The term
4-20 "disclaimer" as used in this section shall include "renunciation."
4-21 In this section "beneficiary" includes a person who would have been
4-22 entitled, if the person had not made a disclaimer, to receive
4-23 property as a result of the death of another person by inheritance,
4-24 under a will, by an agreement between spouses for community
4-25 property with a right of survivorship, by a joint tenancy with a
4-26 right of survivorship, or by any other survivorship agreement,
4-27 account, or interest in which the interest of the decedent passes
5-1 to a surviving beneficiary, by an insurance, annuity, endowment,
5-2 employment, deferred compensation, or other contract or
5-3 arrangement, or under a pension, profit sharing, thrift, stock
5-4 bonus, life insurance, survivor income, incentive, or other plan or
5-5 program providing retirement, welfare, or fringe benefits with
5-6 respect to an employee or a self-employed individual. Nothing in
5-7 this section shall be construed to preclude a subsequent disclaimer
5-8 by any person who shall be entitled to property as a result of a
5-9 disclaimer. The following shall apply to such disclaimers:
5-10 (a) Written Memorandum of Disclaimer and Filing
5-11 Thereof. In the case of property receivable by a beneficiary, the
5-12 disclaimer shall be evidenced by a written memorandum, acknowledged
5-13 before a notary public or other person authorized to take
5-14 acknowledgements of conveyances of real estate. Unless the
5-15 beneficiary is a charitable organization or governmental agency of
5-16 the state, a written memorandum of disclaimer disclaiming a present
5-17 interest shall be filed not later than nine months after the death
5-18 of the decedent and a written memorandum of disclaimer disclaiming
5-19 a future interest may be filed not later than nine months after the
5-20 event determining that the taker of the property or interest is
5-21 finally ascertained and his interest is indefeasibly vested. If
5-22 the beneficiary is a charitable organization or a governmental
5-23 agency of the state, a written memorandum of disclaimer disclaiming
5-24 a present or future interest shall be filed not later than nine
5-25 months after the beneficiary receives the notice required by
5-26 Section 128A of this code. The written memorandum of disclaimer
5-27 shall be filed in the probate court in which the decedent's will
6-1 has been probated or in which proceedings have been commenced for
6-2 the administration of the decedent's estate or which has before it
6-3 an application for either of the same; provided, however, if the
6-4 administration of the decedent's estate is closed, or after the
6-5 expiration of one year following the date of the issuance of
6-6 letters testamentary in an independent administration, or if there
6-7 has been no will of the decedent probated or filed for probate, or
6-8 if no administration of the decedent's estate has been commenced,
6-9 or if no application for administration of the decedent's estate
6-10 has been filed, the written memorandum of disclaimer shall be filed
6-11 with the county clerk of the county of the decedent's residence,
6-12 or, if the decedent is not a resident of this state but real
6-13 property or an interest therein located in this state is
6-14 disclaimed, a written memorandum of disclaimer shall be filed with
6-15 the county clerk of the county in which such real property or
6-16 interest therein is located, and recorded by such county clerk in
6-17 the deed records of that county.
6-18 (b) Notice of Disclaimer. Unless the beneficiary is a
6-19 charitable organization or governmental agency of the state, copies
6-20 of any written memorandum of disclaimer shall be delivered in
6-21 person to, or shall be mailed by registered or certified mail to
6-22 and received by, the legal representative of the transferor of the
6-23 interest or the holder of legal title to the property to which the
6-24 disclaimer relates not later than nine months after the death of
6-25 the decedent or, if the interest is a future interest, not later
6-26 than nine months after the date the person who will receive the
6-27 property or interest is finally ascertained and the person's
7-1 interest is indefeasibly vested. If the beneficiary is a
7-2 charitable organization or government agency of the state, the
7-3 notices required by this section shall be filed not later than nine
7-4 months after the beneficiary receives the notice required by
7-5 Section 128A of this code.
7-6 (c) Power to Provide for Disclaimer. Nothing herein
7-7 shall prevent a person from providing in a will, insurance policy,
7-8 employee benefit agreement, or other instrument for the making of
7-9 disclaimers by a beneficiary of an interest receivable under that
7-10 instrument and for the disposition of disclaimed property in a
7-11 manner different from the provisions hereof.
7-12 (d) Irrevocability of Disclaimer. Any disclaimer
7-13 filed and served under this section shall be irrevocable.
7-14 (e) Partial Disclaimer. Any person who may be
7-15 entitled to receive any property as a beneficiary may disclaim such
7-16 property in whole or in part, including but not limited to specific
7-17 powers of invasion, powers of appointment, and fee estate in favor
7-18 of life estates; and a partial disclaimer or renunciation, in
7-19 accordance with the provisions of this section, shall be effective
7-20 whether the property so renounced or disclaimed constitutes a
7-21 portion of a single, aggregate gift or constitutes part or all of a
7-22 separate, independent gift; provided, however, that a partial
7-23 disclaimer shall be effective only with respect to property
7-24 expressly described or referred to by category in such disclaimer;
7-25 and provided further, that a partial disclaimer of property which
7-26 is subject to a burdensome interest created by the decedent's will
7-27 shall not be effective unless such property constitutes a gift
8-1 which is separate and distinct from undisclaimed gifts.
8-2 (f) Partial Disclaimer by Spouse. Without limiting
8-3 Subsection (e) of this section, a disclaimer by the decedent's
8-4 surviving spouse of a transfer by the decedent is not a disclaimer
8-5 by the surviving spouse of all or any part of any other transfer
8-6 from the decedent to or for the benefit of the surviving spouse,
8-7 regardless of whether the property or interest that would have
8-8 passed under the disclaimed transfer passes because of the
8-9 disclaimer to or for the benefit of the surviving spouse by the
8-10 other transfer.
8-11 (g) Disclaimer After Acceptance. No disclaimer shall
8-12 be effective after the acceptance of the property by the
8-13 beneficiary. For the purpose of this section, acceptance shall
8-14 occur only if the person making such disclaimer has previously
8-15 taken possession or exercised dominion and control of such property
8-16 in the capacity of beneficiary.
8-17 (h) Interest in Trust Property. A beneficiary who
8-18 accepts an interest in a trust is not considered to have a direct
8-19 or indirect interest in trust property that relates to a licensed
8-20 or permitted business and over which the beneficiary exercises no
8-21 control. Direct or indirect beneficial ownership of not more than
8-22 five percent of any class of equity securities that is registered
8-23 under the Securities Exchange Act of 1934 shall not be deemed to be
8-24 an ownership interest in the business of the issuer of such
8-25 securities within the meaning of any statute, pursuant thereto.
8-26 SECTION 6. Section 53(b), Texas Probate Code, is amended to
8-27 read as follows:
9-1 (b) If it appears to the court that there are or may be
9-2 living heirs whose names or whereabouts are unknown, or that any
9-3 defendant is <a minor or> an incapacitated person <incompetent>,
9-4 the court may, in its discretion, appoint an attorney ad litem or
9-5 guardian ad litem to represent the interests of any such persons.
9-6 The court may not appoint an attorney ad litem or guardian ad litem
9-7 unless<, but no attorney shall be appointed except when> the court
9-8 finds that the <such> appointment is necessary to protect the
9-9 interests of the living heir or incapacitated person <persons for
9-10 whom the attorney is appointed>.
9-11 SECTION 7. Section 78, Texas Probate Code, is amended to
9-12 read as follows:
9-13 Sec. 78. Persons Disqualified to Serve as Executor or
9-14 Administrator. No person is qualified to serve as an executor or
9-15 administrator who is:
9-16 (a) <A minor; or>
9-17 <(b)> An incapacitated person <incompetent>; <or>
9-18 (b) <(c)> A convicted felon, under the laws either of
9-19 the United States or of any state or territory of the United
9-20 States, or of the District of Columbia, unless such person has been
9-21 duly pardoned, or his civil rights restored, in accordance with
9-22 law; <or>
9-23 (c) <(d)> A non-resident (natural person or
9-24 corporation) of this State who has not appointed a resident agent
9-25 to accept service of process in all actions or proceedings with
9-26 respect to the estate, and caused such appointment to be filed with
9-27 the court; <or>
10-1 (d) <(e)> A corporation not authorized to act as a
10-2 fiduciary in this State; or
10-3 (e) <(f)> A person whom the court finds unsuitable.
10-4 SECTION 8. Section 137(a), Texas Probate Code, is amended to
10-5 read as follows:
10-6 (a) The distributees of an estate shall be entitled thereto,
10-7 to the extent that the assets, exclusive of homestead and exempt
10-8 property, exceed the known liabilities of said estate, without
10-9 awaiting the appointment of a personal representative when:
10-10 (1) No petition for the appointment of a personal
10-11 representative is pending or has been granted; and
10-12 (2) Thirty days have elapsed since the death of the
10-13 decedent; and
10-14 (3) The value of the entire assets of the estate, not
10-15 including homestead and exempt property, does not exceed $50,000;
10-16 and
10-17 (4) There is filed with the clerk of the court having
10-18 jurisdiction and venue an affidavit sworn to by two disinterested
10-19 witnesses and by such distributees as have legal capacity, and, if
10-20 the facts warrant, by the natural guardian or next of kin of any
10-21 minor or the guardian of any other incapacitated person
10-22 <incompetent> who is also a distributee, which affidavit shall be
10-23 examined by the judge of the court having jurisdiction and venue;
10-24 the judge may find, in his discretion, that the affidavit conforms
10-25 to the terms of this section; if the judge approves the affidavit,
10-26 the affidavit is to be recorded as an official public record under
10-27 Chapter 194, Local Government Code, or if the county has not
11-1 adopted a microfilm or microphotographic process under Chapter 194,
11-2 Local Government Code, the affidavit must be recorded in "Small
11-3 Estates" records by the clerk, showing the existence of the
11-4 foregoing conditions, including a list of the assets and
11-5 liabilities of the estate, the names and addresses of the
11-6 distributees, and their right to receive the money or property of
11-7 the estate, or to have such evidences of money, property or other
11-8 rights of the estate as found to exist transferred to them, being
11-9 heirs, devisees, or assignees, and listing all assets and known
11-10 liabilities of the estates; and
11-11 (5) A copy of such affidavit, certified to by said
11-12 clerk, is furnished by the distributees of the estate to the person
11-13 or persons owing money to the estate, having custody or possession
11-14 of property of the estate, or acting as registrar, fiduciary or
11-15 transfer agent of or for evidences of interest, indebtedness,
11-16 property or other right belonging to said estate.
11-17 SECTION 9. Section 145(i), Texas Probate Code, is amended to
11-18 read as follows:
11-19 (i) If a distributee described in Subsections (c) through
11-20 (e) of this section is <a minor or> an incapacitated person
11-21 <incompetent>, the guardian of the person of the distributee may
11-22 sign the application on behalf of the distributee. If the county
11-23 court finds that either the granting of independent administration
11-24 or the appointment of the person, firm, or corporation designated
11-25 in the application as independent executor would not be in the best
11-26 interests of the incapacitated person <minor or incompetent>, then,
11-27 notwithstanding anything to the contrary in Subsections (c) through
12-1 (e) of this section, the county court shall not enter an order
12-2 granting independent administration of the estate. If such
12-3 distributee who is an incapacitated person <a minor or incompetent>
12-4 has no guardian of the person, the county court may appoint a
12-5 guardian ad litem to make application on behalf of the
12-6 incapacitated person <minor or incompetent> if the county court
12-7 considers such an appointment necessary to protect the interest of
12-8 the distributees.
12-9 SECTION 10. Section 149C(a), Texas Probate Code, is amended
12-10 to read as follows:
12-11 (a) The county court, a statutory probate court, a county
12-12 court at law with probate jurisdiction, or a district court of the
12-13 county, on its own motion or on motion of any interested person,
12-14 after the independent executor has been cited by personal service
12-15 to answer at a time and place fixed in the notice, may remove an
12-16 independent executor when:
12-17 (1) the independent executor fails to return within
12-18 ninety days after qualification, unless such time is extended by
12-19 order of the court, an inventory of the property of the estate and
12-20 list of claims that have come to his knowledge;
12-21 (2) sufficient grounds appear to support belief that
12-22 he has misapplied or embezzled, or that he is about to misapply or
12-23 embezzle, all or any part of the property committed to his care;
12-24 (3) he fails to make an accounting which is required
12-25 by law to be made;
12-26 (4) he fails to timely file the notice required by
12-27 Section 128A of this code;
13-1 (5) he is proved to have been guilty of gross
13-2 misconduct or gross mismanagement in the performance of his duties;
13-3 or
13-4 (6) he becomes an incapacitated person <incompetent>,
13-5 or is sentenced to the penitentiary, or from any other cause
13-6 becomes legally incapacitated from properly performing his
13-7 fiduciary duties.
13-8 SECTION 11. Section 154A(b), Texas Probate Code, is amended
13-9 to read as follows:
13-10 (b) If a distributee described in this section is <a minor
13-11 or> an incapacitated person <incompetent>, the guardian of the
13-12 person of the distributee may sign the application on behalf of the
13-13 distributee. If the county court finds that either the continuing
13-14 of independent administration or the appointment of the person,
13-15 firm, or corporation designated in the application as successor
13-16 independent executor would not be in the best interest of the
13-17 incapacitated person <minor or incompetent>, then, notwithstanding
13-18 anything to the contrary in Subsection (a) of this section, the
13-19 county court shall not enter an order continuing independent
13-20 administration of the estate. If the distributee <who> is an
13-21 incapacitated person and <a minor or incompetent> has no guardian
13-22 of the person, the court may appoint a guardian ad litem to make
13-23 application on behalf of the incapacitated person <minor or
13-24 incompetent> if the county court considers such an appointment
13-25 necessary to protect the interest of such distributee.
13-26 SECTION 12. Section 195(a), Texas Probate Code, is amended
13-27 to read as follows:
14-1 (a) By Will. Whenever any will probated in a Texas court
14-2 directs that no bond or security be required of the person or
14-3 persons named as executors, <or when such a will is made by a
14-4 surviving parent and directs that the guardian or guardians therein
14-5 appointed serve without bond,> the court finding that such person
14-6 or persons are qualified, letters testamentary <or of guardianship,
14-7 as is proper,> shall be issued to the persons so named, without
14-8 requirement of bond.
14-9 SECTION 13. Sections 222(a) and (b), Texas Probate Code, are
14-10 amended to read as follows:
14-11 (a) Without Notice. (1) The court, on its own motion or on
14-12 motion of any interested person, and without notice, may remove any
14-13 personal representative, appointed under provisions of this Code,
14-14 who:
14-15 (A) Neglects to qualify in the manner and time
14-16 required by law;
14-17 (B) Fails to return within ninety days after
14-18 qualification, unless such time is extended by order of the court,
14-19 an inventory of the property of the estate and list of claims that
14-20 have come to his knowledge;
14-21 (C) Having been required to give a new bond,
14-22 fails to do so within the time prescribed;
14-23 (D) Absents himself from the State for a period
14-24 of three months at one time without permission of the court, or
14-25 removes from the State;
14-26 (E) Cannot be served with notices or other
14-27 processes by reason of the fact that his whereabouts are unknown,
15-1 or by reason of the fact that he is eluding service; or
15-2 (F) Has misapplied, embezzled, or removed from
15-3 the State, or is about to misapply, embezzle, or remove from the
15-4 State, all or any part of the property committed to the personal
15-5 representative's <guardian's> care<; or>
15-6 <(G) Has cruelly treated a ward or has neglected
15-7 to educate or maintain the ward as liberally as the means of the
15-8 ward and the condition of the ward's estate permit>.
15-9 (2) The court may remove a personal representative
15-10 under Paragraph (F) <or (G)>, Subdivision (1), of this subsection
15-11 only on the presentation of clear and convincing evidence given
15-12 under oath.
15-13 (b) With Notice. The court may remove a personal
15-14 representative on its own motion, or on the complaint of any
15-15 interested person, after the personal representative has been cited
15-16 by personal service to answer at a time and place fixed in the
15-17 notice, when:
15-18 (1) Sufficient grounds appear to support belief that
15-19 he has misapplied, embezzled, or removed from the state, or that he
15-20 is about to misapply, embezzle, or remove from the state, all or
15-21 any part of the property committed to his care;
15-22 (2) He fails to return any account which is required
15-23 by law to be made;
15-24 (3) He fails to obey any proper order of the court
15-25 having jurisdiction with respect to the performance of his duties;
15-26 (4) He is proved to have been guilty of gross
15-27 misconduct, or mismanagement in the performance of his duties;
16-1 (5) He becomes an incapacitated person <incompetent>,
16-2 or is sentenced to the penitentiary, or from any other cause
16-3 becomes incapable of properly performing the duties of his trust;
16-4 (6) As executor or administrator, he fails to make a
16-5 final settlement within three years after the grant of letters,
16-6 unless the time be extended by the court upon a showing of
16-7 sufficient cause supported by oath; or
16-8 (7) As executor or administrator, he fails to timely
16-9 file the notice required by Section 128A of this code<; or>
16-10 <(9) He fails to comply with the requirements of
16-11 Section 126 of this code>.
16-12 SECTION 14. Part 12, Chapter VIII, Texas Probate Code, is
16-13 amended by adding Section 405A to read as follows:
16-14 Sec. 405A. DELIVERY OF PROPERTY. The court may permit a
16-15 resident executor or administrator who has any of the estate of a
16-16 ward to deliver the estate to a duly qualified and acting guardian
16-17 of the ward.
16-18 SECTION 15. Section 601, Texas Probate Code, is amended to
16-19 read as follows:
16-20 Sec. 601. DEFINITIONS. In this chapter:
16-21 (1) "Attorney ad litem" means an attorney who is
16-22 appointed by a court to represent and advocate on behalf of a
16-23 proposed ward, an incapacitated person, or an unborn person in a
16-24 guardianship proceeding.
16-25 (2) "Authorized corporate surety" means a domestic or
16-26 foreign corporation authorized to do business in this state to
16-27 issue surety, guaranty, or indemnity bonds guaranteeing the
17-1 fidelity of guardians.
17-2 (3) "Child" includes a biological or adopted child,
17-3 whether adopted by a parent under a statutory procedure or by acts
17-4 of estoppel.
17-5 (4) "Claims" includes a liability against the estate
17-6 of a minor or an incapacitated person and debts due to the estate
17-7 of a minor or an incapacitated person.
17-8 (5) "Corporate fiduciary" means a trust company or
17-9 bank having trust powers, existing or doing business under the laws
17-10 of this state or of the United States, that is authorized by law to
17-11 act under the order or appointment of any court of record, without
17-12 giving bond, as a guardian, receiver, trustee, executor, or
17-13 administrator, or, although without general depository powers, as a
17-14 depository for any money paid into court, or to become sole
17-15 guarantor or surety in or on any bond required to be given under
17-16 the laws of this state.
17-17 (6) "Court investigator" means a person appointed by a
17-18 statutory probate court under Section 25.0025, Government Code.
17-19 (7) "Court" or "probate court" means a county court in
17-20 the exercise of its probate jurisdiction, a court created by
17-21 statute and authorized to exercise original probate jurisdiction,
17-22 or a district court exercising original probate jurisdiction in
17-23 contested matters.
17-24 (8) <(7)> "Estate" or "guardianship estate" means the
17-25 real and personal property of a ward or deceased ward, both as the
17-26 property originally existed and as has from time to time changed in
17-27 form by sale, reinvestment, or otherwise, and as augmented by any
18-1 accretions and additions to (including any property to be
18-2 distributed to the representative of the deceased ward by the
18-3 trustee of a trust that terminates on the ward's death) or
18-4 substitutions for the property, and as diminished by any decreases
18-5 to or distributions from the property.
18-6 (9) <(8)> "Exempt property" refers to that property of
18-7 a deceased ward's estate that is exempt from execution or forced
18-8 sale by the constitution or laws of this state, and to the
18-9 allowance in lieu of the property.
18-10 (10) "Guardian" means a person who is appointed
18-11 guardian under Section 693 of this code, or a temporary or
18-12 successor guardian. Except as expressly provided otherwise,
18-13 "guardian" includes the guardian of the estate and the guardian of
18-14 the person of an incapacitated person.
18-15 (11) <(9)> "Guardian ad litem" means a person who is
18-16 appointed by a court to represent the best interests of an
18-17 incapacitated person in a guardianship proceeding.
18-18 (12) <(10)> "Guardianship program" means a local,
18-19 county, or regional program that provides guardianship and related
18-20 services to an incapacitated person or other person who needs
18-21 assistance in making decisions concerning the person's own welfare
18-22 or financial affairs.
18-23 (13) <(11)> "Incapacitated person" means:
18-24 (A) a minor;
18-25 (B) an adult individual who, because of a
18-26 physical or mental condition, is substantially unable to provide
18-27 food, clothing, or shelter for himself or herself, to care for the
19-1 individual's own physical health, or to manage the individual's own
19-2 financial affairs;
19-3 (C) a missing person; or
19-4 (D) a person who must have a guardian appointed
19-5 to receive funds due the person from any governmental source.
19-6 (14) <(12)> "Interested persons" or "persons
19-7 interested" means an heir, devisee, spouse, creditor, or any other
19-8 person having a property right in, or claim against, the estate
19-9 being administered or a person interested in the welfare of an
19-10 incapacitated person, including a minor.
19-11 (15) <(13)> "Minor" means a person who is younger than
19-12 18 years of age and who has never been married or who has not had
19-13 the person's disabilities of minority removed for general purposes.
19-14 (16) <(14)> "Minutes" means the guardianship minutes.
19-15 (17) <(15)> "Missing person" means:
19-16 (A) a person reported by an executive department
19-17 of the United States to be a prisoner of war or missing in the
19-18 course of public service to the United States; or
19-19 (B) a person reported missing and there is good
19-20 cause, as shown by a police or other law enforcement agency report
19-21 or a peace officer's testimony in court, to believe that the person
19-22 is missing.
19-23 (18) <(16)> "Mortgage" or "lien" includes a deed of
19-24 trust; vendor's lien; chattel mortgage; mechanic's, materialman's,
19-25 or laborer's lien; judgment, attachment, or garnishment lien;
19-26 pledge by hypothecation; and a federal or state tax lien.
19-27 (19) <(17)> "Next of kin" includes an adopted child,
20-1 the descendants of an adopted child, and the adoptive parent of an
20-2 adopted child.
20-3 (20) <(18)> "Parent" means the mother of a child, a
20-4 man presumed to be the biological father of a child, a man who has
20-5 been adjudicated to be the biological father of a child by a court
20-6 of competent jurisdiction, or an adoptive mother or father of a
20-7 child, but does not include a parent as to whom the parent-child
20-8 relationship has been terminated.
20-9 (21) <(19)> "Person" includes natural persons,
20-10 corporations, and guardianship programs.
20-11 (22) <(20)> "Personal property" includes an interest
20-12 in goods, money, choses in action, evidence of debts, and chattels
20-13 real.
20-14 (23) <(21)> "Personal representative" or
20-15 "representative" includes a guardian, and a successor guardian.
20-16 (24) <(22)> "Private professional guardian" means a
20-17 person, other than an attorney or a corporate fiduciary, who is
20-18 engaged in the business of providing guardianship services.
20-19 (25) <(23)> "Proceedings in guardianship,"
20-20 "guardianship matter," "guardianship matters," "guardianship
20-21 proceeding," and "proceedings for guardianship" are synonymous and
20-22 include a matter or proceeding relating to a guardianship or any
20-23 other matter addressed by this chapter.
20-24 (26) <(24)> "Property" includes both real and personal
20-25 property.
20-26 (27) <(25)> "Proposed ward" means a person alleged to
20-27 be incapacitated in a guardianship proceeding.
21-1 (28) <(26)> "Real property" includes estates and
21-2 interests in lands, corporeal or incorporeal, legal or equitable,
21-3 other than chattels real.
21-4 (29) <(27)> "Statutory probate court" means a
21-5 statutory court whose jurisdiction is limited by statute to the
21-6 general jurisdiction of a probate court and a court whose
21-7 statutorily designated name contains the word "probate." County
21-8 courts at law exercising probate jurisdiction are not statutory
21-9 probate courts under this chapter unless the statutorily designated
21-10 name of the county courts at law includes the word "probate."
21-11 (30) <(28)> "Surety" includes a personal and a
21-12 corporate surety.
21-13 (31) <(29)> "Ward" is a person for whom a guardian has
21-14 been appointed.
21-15 (32) <(30)> The singular number includes the plural;
21-16 the plural number includes the singular.
21-17 (33) <(31)> The masculine gender includes the feminine
21-18 and neuter.
21-19 SECTION 16. Section 606(b), Texas Probate Code, is amended
21-20 to read as follows:
21-21 (b) In those counties in which there is no statutory probate
21-22 court, county court at law, or other statutory court exercising the
21-23 jurisdiction of a probate court, all applications, petitions and
21-24 motions regarding guardianships, mental health <illness> matters,
21-25 and other matters covered by this chapter shall be filed and heard
21-26 in the county court, except that in contested guardianship matters,
21-27 the judge of the county court may on the judge's own motion, or
22-1 shall on the motion of any party to the proceeding, according to
22-2 the motion, request as provided by Section 25.0022, Government
22-3 Code, <and its subsequent amendments> the assignment of a statutory
22-4 probate judge to hear the contested portion of the proceeding, or
22-5 transfer the contested portion of the proceeding to the district
22-6 court, which may hear the transferred contested matters as if
22-7 originally filed in the district court. The county court continues
22-8 to exercise jurisdiction over the management of the guardianship
22-9 with the exception of the contested matter until final disposition
22-10 of the contested matter is made by the assigned judge or the
22-11 district court. In contested matters transferred to the district
22-12 court as provided by this subsection, the district court,
22-13 concurrently with the county court, has the general jurisdiction of
22-14 a probate court. On resolution of all pending contested matters,
22-15 the district court shall transfer the contested portion of the
22-16 guardianship proceeding to the county court for further proceedings
22-17 not inconsistent with the orders of the district court. If a
22-18 contested portion of the proceeding is transferred to a district
22-19 court under this subsection, the clerk of the district court may
22-20 perform in relation to the transferred portion of the proceeding
22-21 any function a county clerk may perform in that type of contested
22-22 proceeding.
22-23 SECTION 17. Section 606(e), Texas Probate Code, is amended
22-24 to read as follows:
22-25 (e) A court that exercises original probate jurisdiction has
22-26 the power to hear all matters incident to an estate. When a surety
22-27 is called on to perform in place of a guardian or former guardian,
23-1 a court exercising original probate jurisdiction may award judgment
23-2 against the guardian or former guardian in favor of the
23-3 <guardian's> surety of the guardian or former guardian in the same
23-4 suit, even if the ward has died, regained capacity, or the ward's
23-5 disabilities of minority have been removed.
23-6 SECTION 18. Subpart D, Part 2, Chapter XIII, Texas Probate
23-7 Code, is amended by adding Section 633 to read as follows:
23-8 Sec. 633. NOTICE AND CITATION. (a) On the filing of an
23-9 application for guardianship, notice shall be issued and served as
23-10 provided by this section.
23-11 (b) The court clerk shall issue a citation stating that the
23-12 application for guardianship was filed, the name of the proposed
23-13 ward, and the name of the applicant. The citation must cite all
23-14 persons interested in the welfare of the proposed ward to appear at
23-15 the time and place stated in the notice if they wish to contest the
23-16 application. The citation shall be posted.
23-17 (c) The sheriff or other officer shall personally serve
23-18 citation to appear and answer the application for guardianship on:
23-19 (1) a proposed ward who is 12 years of age or older;
23-20 (2) the parents of a proposed ward if the whereabouts
23-21 of the parents are known or can be reasonably ascertained;
23-22 (3) any court-appointed conservator or person having
23-23 control of the care and welfare of the proposed ward;
23-24 (4) a proposed ward's spouse; and
23-25 (5) an attorney ad litem or guardian ad litem
23-26 appointed to represent the interests of a missing person.
23-27 (d) The court clerk, at the applicant's request, or the
24-1 applicant shall mail a copy of the notice by registered or
24-2 certified mail, return receipt requested, to the following persons
24-3 if their whereabouts are known or can be reasonably ascertained:
24-4 (1) all adult siblings and all adult children of a
24-5 proposed ward;
24-6 (2) the administrator of a nursing home facility or
24-7 similar facility in which the proposed ward resides;
24-8 (3) the operator of a residential facility in which
24-9 the proposed ward resides; and
24-10 (4) a person whom the applicant knows to hold a power
24-11 of attorney signed by the proposed ward.
24-12 (e) A person other than the proposed ward who is entitled to
24-13 receive notice or personal service of citation under Subsections
24-14 (c) and (d) of this section may choose, in person or by attorney ad
24-15 litem, by writing filed with the clerk, to waive the receipt of
24-16 notice or the issuance and personal service of citation.
24-17 (f) The court may not act on an application for the creation
24-18 of a guardianship until the Monday following the expiration of the
24-19 10-day period beginning the date service of notice and citation has
24-20 been made as provided by Subsections (b), (c), and (d)(1) of this
24-21 section. The validity of a guardianship created under this chapter
24-22 is not affected by the failure of the clerk or applicant to comply
24-23 with the requirements of Subsections (d)(2)-(4) of this section.
24-24 (g) It is not necessary for a person who files an
24-25 application for the creation of a guardianship under this chapter
24-26 to be served with citation or waive the issuance and personal
24-27 service of citation under this section.
25-1 SECTION 19. Section 636, Texas Probate Code, is amended to
25-2 read as follows:
25-3 Sec. 636. NOTICES TO DEPARTMENT OF VETERANS AFFAIRS
25-4 <VETERANS ADMINISTRATION> BY GUARDIANS. When an annual or other
25-5 account of funds, or an application for the expenditure of or
25-6 investment of funds is filed by a guardian whose ward is a
25-7 beneficiary of the Department of Veterans Affairs <Veterans
25-8 Administration>, or when a claim against the estate of a ward who
25-9 is a beneficiary of the Department of Veterans Affairs <Veterans
25-10 Administration> is filed, the court shall set a date for the
25-11 hearing of the account, application, petition, or claim to be held
25-12 not less than 20 days from the date of the filing of the account,
25-13 application, petition, or claim. The person who files <clerk of
25-14 the court in which> the account, application, petition, or claim
25-15 <is filed> shall give notice of the date of the filing <hearing> to
25-16 the office of the Department of Veterans Affairs <Veterans
25-17 Administration> in whose territory the court is located <of the
25-18 hearing> by mailing to the office a certified copy of the account,
25-19 application, petition, or claim not later <less> than five <15>
25-20 days after <before> the <hearing> date of the filing. An office of
25-21 the Department of Veterans Affairs <Veterans Administration>,
25-22 through its attorney, may waive the service of notice and the time
25-23 within which a hearing may be had in those cases. <The account,
25-24 application, petition, or claim shall be filed in duplicate, and
25-25 the clerk of the court is entitled to a fee of 25 cents, taxable
25-26 against the estate, for certifying the copy of the account,
25-27 application, petition, or claim. The clerk shall mail to the
26-1 office of the Veterans Administration the certified copy. If not
26-2 filed in duplicate, the clerk shall be entitled to an additional
26-3 fee of 15 cents per 100 words for making a copy of the account,
26-4 application, petition, or claim. The additional copying costs
26-5 shall be taxed and collected from the guardian and may not be
26-6 charged to the ward's estate.>
26-7 SECTION 20. Section 642, Texas Probate Code, is amended by
26-8 adding Subsection (c) to read as follows:
26-9 (c) The court shall determine by motion in limine the
26-10 standing of a person who has an interest that is adverse to a
26-11 proposed ward or incapacitated person.
26-12 SECTION 21. Section 644, Texas Probate Code, is amended to
26-13 read as follows:
26-14 Sec. 644. Hearing by Submission. (a) A court may consider
26-15 by submission a motion or application filed under this chapter
26-16 unless<:>
26-17 <(1)> the proceeding is:
26-18 (1) contested; or
26-19 (2) <the motion or application is superseded by local
26-20 rules; or>
26-21 <(3) the proceeding is> an application for the
26-22 appointment of a guardian.
26-23 (b) <A motion or application that a court may consider under
26-24 submission must be accompanied by a notice of the filing of the
26-25 motion or application that contains the date the motion or
26-26 application is to be submitted to the court. The time for notice
26-27 provided under this subsection may not be less than the time
27-1 otherwise prescribed by law for notice of other motions or
27-2 applications filed with the court.>
27-3 <(c) Without court approval, a motion or application that a
27-4 court may consider under submission may not be submitted to the
27-5 court before the 10th day after the date the motion or application
27-6 was filed.>
27-7 <(d) A motion or application must be submitted to the court
27-8 for a ruling on the date of submission that is contained in the
27-9 notice of submission under Subsection (b) of this section or on a
27-10 later date that is approved by the court.>
27-11 <(e) Without court approval, a response to a motion or
27-12 application that a court may consider under submission must be in
27-13 writing and must be filed before the second business day before the
27-14 date of submission.>
27-15 <(f) On the date of submission or another date that is
27-16 approved by the court, the court shall schedule a hearing for a
27-17 motion or application that a court may consider under submission
27-18 only if a response to the motion or application is filed by a
27-19 person interested in the guardianship who:>
27-20 <(1) contests the relief sought in the motion or
27-21 application;>
27-22 <(2) requests to be present at the hearing; or>
27-23 <(3) requests oral argument on the person's exceptions
27-24 to the motion or application.>
27-25 <(g)> The burden of proof at a hearing on a motion or
27-26 application that is being considered by the court on submission is
27-27 on the party who is seeking relief under the motion or application.
28-1 (c) <(h)> The court may consider a person's failure to file
28-2 a response to a motion or application that may be considered on
28-3 submission as a representation that the person does not oppose the
28-4 motion or application.
28-5 (d) <(i)> A person's request for oral argument is not a
28-6 response to a motion or application under this section.
28-7 (e) <(j)> The court, on its own motion, may order oral
28-8 argument on a motion or application that may be considered by
28-9 submission.
28-10 SECTION 22. Sections 646(b), (c), and (d), Texas Probate
28-11 Code, are amended to read as follows:
28-12 (b) To be eligible for appointment as an attorney ad litem,
28-13 a person must be certified by the State Bar of Texas or a person or
28-14 other entity designated by the state bar as having successfully
28-15 completed a course of study in guardianship law and procedure
28-16 sponsored by the state bar or its designee.
28-17 (c) For certification under Subsection (b) of this section,
28-18 the state bar shall <may not> require <more than> four hours of
28-19 credit.
28-20 (d) A certificate issued under Subsection (b) of this
28-21 section expires on the second anniversary of the date the
28-22 certificate was issued. A person whose certificate has expired
28-23 must obtain a new certificate to be eligible for appointment as an
28-24 attorney ad litem. <The applicant is not required to again
28-25 complete the course of study required by Subsection (b) of this
28-26 section unless the state bar determines that the course has changed
28-27 substantially since the person last completed the course.>
29-1 SECTION 23. Section 648, Texas Probate Code, is amended by
29-2 adding Subsection (f) to read as follows:
29-3 (f) This section does not apply to a guardianship that is
29-4 created only because it is necessary for a person to have a
29-5 guardian appointed to receive funds from a governmental source.
29-6 SECTION 24. Subpart E, Part 2, Chapter XIII, Texas Probate
29-7 Code, is amended by adding Section 648A to read as follows:
29-8 Sec. 648A. DUTIES OF COURT INVESTIGATOR. (a) On the filing
29-9 of an application for guardianship under Section 682 of this code,
29-10 a court investigator shall investigate the circumstances alleged in
29-11 the application to determine whether a less restrictive alternative
29-12 than guardianship is appropriate.
29-13 (b) A court investigator shall:
29-14 (1) supervise the court visitor program established
29-15 under Section 648 of this code and in that capacity serve as the
29-16 chief court visitor;
29-17 (2) investigate a complaint received from any person
29-18 about a guardianship and report to the judge, if necessary; and
29-19 (3) perform other duties as assigned by the judge.
29-20 (c) After making an investigation under Subsection (a) or
29-21 (b) of this section, a court investigator shall file with the court
29-22 a report of the court investigator's findings and conclusions.
29-23 Disclosure to a jury of the contents of a court investigator's
29-24 report is subject to the Texas Rules of Civil Evidence. In a
29-25 contested case, the court investigator shall provide copies of the
29-26 report to the attorneys for the parties before the earlier of:
29-27 (1) the seventh day after the day the report is
30-1 completed; or
30-2 (2) the 10th day before the day the trial is scheduled
30-3 to begin.
30-4 (d) Nothing in this section supersedes any duty or
30-5 obligation of another to report or investigate abuse or neglect
30-6 under any statute of this state.
30-7 SECTION 25. Section 659, Texas Probate Code, is amended to
30-8 read as follows:
30-9 Sec. 659. Issuance of Letters of Guardianship. (a) When a
30-10 person who is appointed guardian has qualified under Section 699 of
30-11 this code <by taking the oath and giving any bond required by law>,
30-12 the clerk shall issue to the guardian a certificate under seal,
30-13 stating the fact of the appointment, of the qualification, <and>
30-14 the date of the appointment and qualification, and the date the
30-15 letters of guardianship expire. The certificate issued by the
30-16 clerk constitutes letters of guardianship. <The order of the court
30-17 appointing the guardian is effective on the issuance of letters of
30-18 guardianship. The order is evidence of the authority of the
30-19 guardian to act within the scope of the powers and duties set forth
30-20 in the order.>
30-21 (b) All letters <Letters> of guardianship expire one year
30-22 and four months <120 days> after the date of issuance unless
30-23 renewed.
30-24 (c) The clerk may not <shall> renew letters of guardianship
30-25 relating to the appointment of a guardian of the estate until <on
30-26 the receipt and approval by> the court receives and approves <of>
30-27 the guardian's annual accounting. The clerk may not renew letters
31-1 of guardianship relating to the appointment of a guardian of the
31-2 person until the court receives and approves the annual report. If
31-3 the guardian's annual accounting or annual report is disapproved or
31-4 not timely filed, the clerk may not issue further letters of
31-5 guardianship to the delinquent <that> guardian <relating to the
31-6 ward or the ward's estate> unless ordered by the court.
31-7 (d) Regardless of the date the court approves an annual
31-8 accounting or annual report for purposes of this section, a renewal
31-9 relates back to the date the original letters of guardianship are
31-10 issued, unless the accounting period has been changed as provided
31-11 by this chapter, in which case a renewal relates back to the first
31-12 day of the accounting period.
31-13 SECTION 26. Section 660, Texas Probate Code, is amended to
31-14 read as follows:
31-15 Sec. 660. LETTERS OR ORDER <CERTIFICATE> MADE EVIDENCE. (a)
31-16 Letters of guardianship or a certificate under seal of the clerk of
31-17 the court that granted the letters issued under Section 659 of this
31-18 code is sufficient evidence of the appointment and qualification of
31-19 the guardian and of the date of qualification.
31-20 (b) The court order that appoints the guardian is evidence
31-21 of the authority granted to the guardian and of the scope of the
31-22 powers and duties that the guardian may exercise only after the
31-23 date letters of guardianship or a certificate has been issued under
31-24 Section 659 of this code.
31-25 SECTION 27. Section 665, Texas Probate Code, is amended to
31-26 read as follows:
31-27 Sec. 665. COMPENSATION OF GUARDIANS AND TEMPORARY GUARDIANS
32-1 <GUARDIAN>. (a) The court may authorize compensation for a
32-2 guardian or a temporary guardian serving as a guardian of the
32-3 person alone from available funds of the ward's estate. The court
32-4 shall set the compensation in an amount not exceeding five percent
32-5 of the ward's gross income. In determining whether to authorize
32-6 compensation for a guardian under this section, the court shall
32-7 consider the ward's monthly income from all sources and whether the
32-8 ward receives medical assistance under the state Medicaid program
32-9 <Chapter 32, Human Resources Code>.
32-10 (b) The guardian or temporary guardian of an <the> estate is
32-11 entitled to a fee of five percent of the gross income of the ward's
32-12 estate and five percent of all money paid out of the estate on a
32-13 court finding that the guardian or temporary guardian has taken
32-14 care of and managed the estate in compliance with the standards of
32-15 this chapter. In this section, the term "money paid out" does not
32-16 include any money loaned, invested, or paid over on the settlement
32-17 of the guardianship or a tax-motivated gift made by the ward. If
32-18 the fee is an unreasonably low amount, the court may authorize
32-19 reasonable compensation to a guardian or temporary guardian for
32-20 services as guardian or temporary guardian of the estate. The
32-21 court, on application of an interested person or on its own motion,
32-22 may deny a fee authorized under this section in whole, or in part,
32-23 if:
32-24 (1) the court finds that the guardian or temporary
32-25 guardian has not adequately performed the duties required of a
32-26 <the> guardian or temporary guardian under this chapter; or
32-27 (2) the guardian or temporary guardian has been
33-1 removed for cause.
33-2 (c) Except as provided by Subsection (b) of this section for
33-3 a fee that is determined by the court to be unreasonably low, the
33-4 aggregate fee of the guardian of the person and guardian of the
33-5 estate may not exceed an amount equal to five percent of the gross
33-6 income of the ward's estate plus five percent of all money paid out
33-7 of the estate.
33-8 (d) In this section "gross income" does not include
33-9 Department of Veterans Affairs or Social Security benefits received
33-10 by a ward.
33-11 SECTION 28. Subpart H, Part 2, Chapter XIII, Texas Probate
33-12 Code, is amended by adding Sections 665A, 665B, and 665C to read as
33-13 follows:
33-14 Sec. 665A. PAYMENT FOR PROFESSIONAL SERVICES. The court
33-15 shall order the payment of a fee set by the court as compensation
33-16 to the attorneys, mental health professionals, and interpreters
33-17 appointed under Section 646 or 687 of this code, as applicable, to
33-18 be taxed as costs in the case. If after examining the proposed
33-19 ward's assets the court determines the proposed ward is unable to
33-20 pay for services provided by an attorney, a mental health
33-21 professional, or an interpreter appointed under Section 646 or 687
33-22 of this code, as applicable, the county is responsible for the cost
33-23 of those services.
33-24 Sec. 665B. COMPENSATION OF CERTAIN ATTORNEYS. (a) A court
33-25 that creates a guardianship for a ward under this chapter, on
33-26 request of a person who filed an application to be appointed
33-27 guardian of the proposed ward, may authorize compensation of an
34-1 attorney who represents the person at the application hearing from
34-2 available funds of the ward's estate regardless of whether that
34-3 person is appointed the ward's guardian.
34-4 (b) The court may not authorize compensation under this
34-5 section unless the court finds that the applicant acted in good
34-6 faith and for just cause in the filing and prosecution of the
34-7 application.
34-8 Sec. 665C. COMPENSATION FOR COLLECTION OF CLAIMS AND
34-9 RECOVERY OF PROPERTY. (a) Except as provided by Subsection (b) of
34-10 this section, a guardian of an estate may enter into a contract to
34-11 convey, or may convey, a contingent interest in any property sought
34-12 to be recovered, not exceeding one-third thereof for services of
34-13 attorneys, subject only to the approval of the court in which the
34-14 estate is being administered.
34-15 (b) A guardian of an estate may convey or contract to convey
34-16 for services of attorneys a contingent interest that exceeds
34-17 one-third of the property sought to be recovered under this section
34-18 only on the approval of the court in which the estate is being
34-19 administered. The court must approve a contract entered into or
34-20 conveyance made under this section before an attorney performs any
34-21 legal services. A contract entered into or conveyance made in
34-22 violation of this section is void, unless the court ratifies or
34-23 reforms the contract or documents relating to the conveyance to the
34-24 extent necessary to cause the contract or conveyance to meet the
34-25 requirements of this section.
34-26 (c) In approving a contract or conveyance under Subsection
34-27 (a) or (b) of this section for services of an attorney, the court
35-1 shall consider:
35-2 (1) the time and labor that will be required, the
35-3 novelty and difficulty of the questions to be involved, and the
35-4 skill that will be required to perform the legal services properly;
35-5 (2) the fee customarily charged in the locality for
35-6 similar legal services;
35-7 (3) the value of property recovered or sought to be
35-8 recovered by the personal representative under this section;
35-9 (4) the benefits to the estate that the attorney will
35-10 be responsible for securing; and
35-11 (5) the experience and ability of the attorney who
35-12 will be performing the services.
35-13 (d) On satisfactory proof to the court, a guardian of an
35-14 estate is entitled to all necessary and reasonable expenses
35-15 incurred by the guardian in collecting or attempting to collect a
35-16 claim or debt owed to the estate or in recovering or attempting to
35-17 recover property to which the estate has a title or claim.
35-18 SECTION 29. Section 669, Texas Probate Code, is amended to
35-19 read as follows:
35-20 Sec. 669. Costs Against Guardianship. (a) Except as
35-21 provided by Subsection (b), in <In> a guardianship matter, the cost
35-22 of the proceeding, including the cost of the guardian ad litem or
35-23 court visitor, shall be paid out of the guardianship estate, or, if
35-24 the estate is insufficient to pay for the cost of the proceeding,
35-25 the cost of the proceeding shall be paid out of the county
35-26 treasury, and the judgment of the court shall be issued
35-27 accordingly.
36-1 (b) If a court denies an application for the appointment of
36-2 a guardian under this chapter based on the recommendation of a
36-3 court investigator, the applicant shall pay the cost of the
36-4 proceeding.
36-5 SECTION 30. Subpart I, Part 2, Chapter XIII, Texas Probate
36-6 Code, is amended by adding Section 672 to read as follows:
36-7 Sec. 672. ANNUAL DETERMINATION WHETHER GUARDIANSHIP SHOULD
36-8 BE CONTINUED, MODIFIED, OR TERMINATED. (a) A court in which a
36-9 guardianship proceeding is pending shall review annually each
36-10 guardianship in which the application to create the guardianship
36-11 was filed after September 1, 1993, and may review annually any
36-12 other guardianship to determine whether the guardianship should be
36-13 continued, modified, or terminated.
36-14 (b) In reviewing a guardianship as provided by Subsection
36-15 (a) of this section, a statutory probate court may:
36-16 (1) review any report prepared by a court investigator
36-17 under Section 648A of this code;
36-18 (2) review any report prepared by a court visitor
36-19 under Section 648 of this code;
36-20 (3) conduct a hearing; or
36-21 (4) review an annual account prepared under Section
36-22 741 of this code or a report prepared under Section 743 of this
36-23 code.
36-24 (c) In reviewing a guardianship as provided by Subsection
36-25 (a) of this section, a court that is not a statutory probate court
36-26 may use any appropriate method determined by the court according to
36-27 the court's caseload and the resources available to the court.
37-1 (d) A determination under this section must be in writing
37-2 and filed with the clerk.
37-3 (e) This section does not apply to a guardianship that is
37-4 created only because it is necessary for a person to have a
37-5 guardian appointed to receive funds from a governmental source.
37-6 SECTION 31. Section 680, Texas Probate Code, is amended to
37-7 read as follows:
37-8 Sec. 680. SELECTION OF GUARDIAN BY MINOR. (a) When an
37-9 application is filed for the guardianship of the person or estate,
37-10 or both, of a minor at least 12 <14> years of age, the minor, by
37-11 writing filed with the clerk, may choose the guardian if the court
37-12 approves the choice and finds that the choice is in the best
37-13 interest of the minor.
37-14 (b) A minor at least 12 <14> years of age may select another
37-15 guardian of either the minor's person or estate, or both, if the
37-16 minor has a guardian appointed by the court or the minor has a
37-17 guardian appointed by will or written declaration of the parent of
37-18 the minor and that guardian dies, resigns, or is removed from
37-19 guardianship. If the court is satisfied that the person selected
37-20 is suitable and competent and that the appointment of the person is
37-21 in the best interest of the minor, it shall make the appointment
37-22 and revoke the letters of guardianship of the former guardian. The
37-23 minor shall make the selection by filing an application in open
37-24 court in person or by attorney.
37-25 SECTION 32. Section 681, Texas Probate Code, is amended to
37-26 read as follows:
37-27 Sec. 681. PERSONS DISQUALIFIED TO SERVE AS <INELIGIBLE TO
38-1 BE> GUARDIANS. A person may not be appointed guardian if the
38-2 person is:
38-3 (1) a minor;
38-4 (2) a person whose conduct is notoriously bad;
38-5 (3) an incapacitated person;
38-6 (4) a person who is a party or whose parent is a party
38-7 to a lawsuit concerning or affecting the welfare of the proposed
38-8 ward, unless the court:
38-9 (A) determines that the lawsuit claim of the
38-10 person who has applied to be appointed guardian is not in conflict
38-11 with the lawsuit claim of the proposed ward; or
38-12 (B) appoints a guardian ad litem to represent
38-13 the interests of the proposed ward throughout the litigation of the
38-14 ward's lawsuit claim;
38-15 (5) a person indebted to the proposed ward unless the
38-16 person pays the debt before appointment;
38-17 (6) a person asserting a claim adverse to the proposed
38-18 ward or the proposed ward's property, real or personal;
38-19 (7) a person who, because of inexperience, lack of
38-20 education, or other good reason, is incapable of properly and
38-21 prudently managing and controlling the ward or the ward's estate;
38-22 (8) a person, institution, or corporation found
38-23 unsuitable by the court;
38-24 (9) a person disqualified in a declaration made under
38-25 Section 679 of this code; or
38-26 (10) a nonresident person who has not filed with the
38-27 court the name of a resident agent to accept service of process in
39-1 all actions or proceedings relating to the guardianship.
39-2 SECTION 33. Section 684, Texas Probate Code, is amended to
39-3 read as follows:
39-4 Sec. 684. FINDINGS REQUIRED. (a) Before appointing a
39-5 guardian, the court must find by clear and convincing evidence
39-6 that:
39-7 (1) the proposed ward is an incapacitated person;
39-8 (2) it is in the best interest of the proposed ward to
39-9 have the court appoint a person as guardian of the proposed ward
39-10 <the court has venue of the case>; and
39-11 (3) <the person to be appointed guardian is eligible
39-12 to act as guardian and is entitled to appointment, or, if no
39-13 eligible person entitled to appointment applies, the person
39-14 appointed is a proper person to act as guardian;>
39-15 <(4)> the rights of the proposed ward or the proposed
39-16 ward's <persons or> property will be protected by the appointment
39-17 of a guardian.<;>
39-18 (b) Before appointing a guardian, the court must find by a
39-19 preponderance of the evidence that:
39-20 (1) the court has venue of the case;
39-21 (2) the person to be appointed guardian is eligible to
39-22 act as guardian and is entitled to appointment, or, if no eligible
39-23 person entitled to appointment applies, the person appointed is a
39-24 proper person to act as guardian;
39-25 (3) <(5)> if a guardian is appointed for a minor, the
39-26 guardianship is not created for the primary purpose of enabling the
39-27 minor to establish residency for enrollment in a school or school
40-1 district for which the minor is not otherwise eligible for
40-2 enrollment; <and>
40-3 (4) <(6)> if the guardian is appointed for a missing
40-4 person, the person was reported missing by an executive department
40-5 of the United States at least six months earlier than the date of
40-6 the filing of the application and currently is missing; and
40-7 (5) the proposed ward is totally without capacity as
40-8 provided by this code to care for himself or herself and to manage
40-9 the individual's property, or the proposed ward lacks the capacity
40-10 to do some, but not all, of the tasks necessary to care for himself
40-11 or herself or to manage the individual's property.
40-12 (c) <(b)> The court may not grant an application to create a
40-13 guardianship unless the applicant proves each element required by
40-14 this code. A determination of incapacity of an adult proposed
40-15 ward, other than a missing person or a person who must have a
40-16 guardian appointed to receive funds due the person from any
40-17 governmental source, must be evidenced by recurring acts or
40-18 occurrences within the preceding six-month period and not by
40-19 isolated instances of negligence or bad judgment.
40-20 (d) <(c)> A court may not appoint a guardian of the estate
40-21 of a minor when a payment of claims is made under Section 887 of
40-22 this code.
40-23 (e) <(d)> A certificate of the executive head or a
40-24 representative of the bureau, department, or agency of the
40-25 government, to the effect that the appointment of a guardian is a
40-26 condition precedent to the payment of any funds due the proposed
40-27 ward from that governmental entity, is prima facie evidence of the
41-1 necessity for the appointment of a guardian.
41-2 SECTION 34. Section 685(a), Texas Probate Code, is amended
41-3 to read as follows:
41-4 (a) A proposed ward other than a missing person must be
41-5 present at a hearing to appoint a guardian unless the court, on the
41-6 record or in the order, determines that a personal appearance is
41-7 not necessary. The court may close the hearing if the proposed
41-8 ward or the proposed ward's counsel requests a closed hearing.
41-9 SECTION 35. Subpart A, Part 3, Chapter XIII, Texas Probate
41-10 Code, is amended by adding Section 687 to read as follows:
41-11 Sec. 687. EXAMINATIONS AND REPORTS. (a) The court may not
41-12 grant an application to create a guardianship for an incapacitated
41-13 person, other than a minor, missing person, person whose alleged
41-14 incapacity is mental retardation, or person for whom it is
41-15 necessary to have a guardian appointed only to receive funds from a
41-16 governmental source, unless the applicant presents to the court a
41-17 written letter or certificate from a physician licensed in this
41-18 state that is dated not earlier than the 120th day before the date
41-19 of the filing of the application and based on an examination the
41-20 physician performed not earlier than the 120th day before the date
41-21 of the filing of the application. The letter or certificate must:
41-22 (1) describe the nature and degree of incapacity,
41-23 including the medical history if reasonably available;
41-24 (2) provide a medical prognosis specifying the
41-25 estimated severity of the incapacity;
41-26 (3) state how or in what manner the proposed ward's
41-27 ability to make or communicate responsible decisions concerning
42-1 himself or herself is affected by the person's physical or mental
42-2 health;
42-3 (4) state whether any current medication affects the
42-4 demeanor of the proposed ward or the proposed ward's ability to
42-5 participate fully in a court proceeding;
42-6 (5) describe the precise physical and mental
42-7 conditions underlying a diagnosis of senility, if applicable; and
42-8 (6) include any other information required by the
42-9 court.
42-10 (b) Except as provided by Subsection (c) of this section, if
42-11 the court determines it is necessary, the court may appoint the
42-12 necessary physicians to examine the proposed ward. A physician who
42-13 examines the proposed ward, other than a physician or psychologist
42-14 who examines the proposed ward under Subsection (c) of this
42-15 section, shall make available to an attorney ad litem appointed to
42-16 represent the proposed ward, for inspection, a written letter or
42-17 certificate from the physician that complies with the requirements
42-18 of Subsection (a) of this section.
42-19 (c) If the basis of the proposed ward's alleged incapacity
42-20 is mental retardation, the proposed ward shall be examined by a
42-21 physician or psychologist licensed in this state or certified by
42-22 the Texas Department of Mental Health and Mental Retardation to
42-23 perform the examination, unless there is written documentation
42-24 filed with the court that shows that the proposed ward has been
42-25 examined according to the rules adopted by the Texas Department of
42-26 Mental Health and Mental Retardation not earlier than six months
42-27 before the date of a hearing to appoint a guardian for the proposed
43-1 ward. The physician or psychologist shall conduct the examination
43-2 according to the rules adopted by the Texas Department of Mental
43-3 Health and Mental Retardation and shall submit written findings and
43-4 recommendations to the court.
43-5 SECTION 36. Section 690, Texas Probate Code, is amended to
43-6 read as follows:
43-7 Sec. 690. PERSONS <ONLY ONE PERSON> APPOINTED GUARDIAN.
43-8 Only one person may be appointed as guardian of the person or
43-9 estate, but one person may be appointed guardian of the person and
43-10 another of the estate, if it is in the best interest <to the
43-11 advantage> of the ward. Nothing in this section prohibits the
43-12 joint appointment of a husband and wife, of joint managing
43-13 conservators, or of coguardians appointed under the laws of a
43-14 jurisdiction other than this state.
43-15 SECTION 37. Section 691, Texas Probate Code, is amended to
43-16 read as follows:
43-17 Sec. 691. Agency as Last Resort. Except as a last resort,
43-18 the court may not appoint as guardian the Texas Department of
43-19 Mental Health and Mental Retardation, the <Texas> Department of
43-20 Protective and Regulatory <Human> Services, a community mental
43-21 health and mental retardation center, or any other agency, public
43-22 or private, that is directly providing services to the
43-23 incapacitated person.
43-24 SECTION 38. Section 692, Texas Probate Code, is amended to
43-25 read as follows:
43-26 Sec. 692. DISMISSAL OF APPLICATION. If it is found that an
43-27 adult person possesses the capacity to care for himself or herself
44-1 and to manage the individual's property as would a reasonably
44-2 prudent person, the court shall dismiss the application for
44-3 guardianship <ORDER APPOINTING GUARDIAN. The order of the court
44-4 appointing a guardian must specify:>
44-5 <(1) the name of the person appointed;>
44-6 <(2) the name of the ward;>
44-7 <(3) whether the guardian is of the person or the
44-8 estate, or of both, of the ward;>
44-9 <(4) the amount of any bond required;>
44-10 <(5) if it is a guardianship of the estate and the
44-11 court deems an appraisal is necessary, one or more but not more
44-12 than three disinterested persons to appraise the estate and to
44-13 return the appraisement to the court; and>
44-14 <(6) that the clerk will issue letters of guardianship
44-15 to the person appointed when the person has qualified according to
44-16 law>.
44-17 SECTION 39. Section 693, Texas Probate Code, is amended to
44-18 read as follows:
44-19 Sec. 693. ORDER OF COURT. (a) <If it is found that an
44-20 adult person possesses the capacity to care for himself or herself
44-21 and to manage the individual's property as would a reasonably
44-22 prudent person, the court shall dismiss the application for
44-23 guardianship.>
44-24 <(b)> If it is found that the proposed ward is totally
44-25 without capacity as provided by this code to care for himself or
44-26 herself and to manage the individual's property, the court <shall
44-27 include that determination as a finding of fact in its final order
45-1 in the proceeding, and the court> may appoint a guardian of the
45-2 individual's person or estate, or both, with full authority over
45-3 the incapacitated person except as provided by law. An order
45-4 appointing a guardian under this subsection must contain findings
45-5 of fact and specify:
45-6 (1) the information required by Subsection (c) of this
45-7 section;
45-8 (2) that the guardian has full authority over the
45-9 incapacitated person; and
45-10 (3) if necessary, the amount of funds from the corpus
45-11 of the person's estate the court will allow the guardian to expend
45-12 for the education and maintenance of the person under Section 776
45-13 of this code.
45-14 (b) <(c)> If it is found that the person lacks the capacity
45-15 to do some, but not all, of the tasks necessary to care for himself
45-16 or herself or to manage the individual's property, the court may
45-17 appoint a guardian with limited powers and permit the individual to
45-18 care for himself or herself or to manage the individual's property
45-19 commensurate with the individual's ability.
45-20 <(d)> An order appointing a guardian under this subsection
45-21 must contain findings of fact and specify:
45-22 (1) the information required by Subsection (c)
45-23 <Section 692> of this section <code>;
45-24 (2) the specific powers, limitations, or duties of the
45-25 guardian with respect to the care of the person or the management
45-26 of the person's property by the guardian; and
45-27 (3) if necessary, the amount of funds from the corpus
46-1 of the person's estate the court will allow the guardian to expend
46-2 for the education and maintenance of the person under Section 776
46-3 of this code.
46-4 (c) The order of the court appointing a guardian must
46-5 specify:
46-6 (1) the name of the person appointed;
46-7 (2) the name of the ward;
46-8 (3) whether the guardian is of the person or the
46-9 estate, or of both, of the ward;
46-10 (4) the amount of any bond required;
46-11 (5) if it is a guardianship of the estate and the
46-12 court deems an appraisal is necessary, one or more but not more
46-13 than three disinterested persons to appraise the estate and to
46-14 return the appraisement to the court; and
46-15 (6) that the clerk will issue letters of guardianship
46-16 to the person appointed when the person has qualified according to
46-17 law.
46-18 (d) <(e)> An order appointing a guardian may not duplicate
46-19 or conflict with the powers and duties of any other guardian.
46-20 (e) An order appointing a guardian or a successor guardian
46-21 may specify a period of not more than one year during which a
46-22 petition for adjudication that the incapacitated person no longer
46-23 requires the guardianship may not be filed without special leave.
46-24 SECTION 40. Section 694, Texas Probate Code, is amended to
46-25 read as follows:
46-26 Sec. 694. TERM OF APPOINTMENT OF GUARDIAN. (a) Unless
46-27 otherwise discharged as provided by law, a guardian remains in
47-1 office until the estate is closed.
47-2 (b) Subject to Subsection (f) of this section, the <The>
47-3 guardianship shall be settled and closed when the incapacitated
47-4 person:
47-5 (1) dies and, if the person was married, the person's
47-6 spouse qualifies as survivor in community;
47-7 (2) is found by the court to have full capacity to
47-8 care for himself or herself and to manage the person's property;
47-9 (3) is no longer a minor;
47-10 (4) <returns to the United States,> if the person was
47-11 a missing person and:
47-12 (A) has been confirmed dead;
47-13 (B) is legally declared dead under applicable
47-14 statutes;
47-15 (C) returns;
47-16 (D) has had the person's whereabouts determined;
47-17 or
47-18 (E) no longer needs a guardianship <and the
47-19 court grants the motion of any interested person to vacate the
47-20 original order of guardianship>; or
47-21 (5) no longer must have a guardian appointed to
47-22 receive funds due the person from any governmental source.
47-23 (c) An order appointing a guardian or a successor guardian
47-24 may specify a period of not more than one year during which a
47-25 petition for adjudication that the incapacitated person no longer
47-26 requires the guardianship may not be filed without special leave.
47-27 (d) <Except as provided by Subsection (c) of this section, a
48-1 ward or any person interested in the ward's welfare may petition
48-2 the court for an order:>
48-3 <(1) finding that the ward no longer needs the
48-4 guardianship and ordering that the guardian resign or be removed;>
48-5 <(2) finding that the ward lacks the capacity to do
48-6 some or all of the tasks necessary to care for himself or herself
48-7 or to manage the ward's property and granting additional powers or
48-8 duties to the guardian with respect to the care of the ward or the
48-9 management of the ward's property by the guardian; or>
48-10 <(3) finding that the ward has regained the capacity
48-11 to do some, but not all, of the tasks necessary to care for himself
48-12 or herself or to manage the ward's property and:>
48-13 <(A) limiting the powers or duties of the
48-14 guardian with respect to the care of the ward or the management of
48-15 the ward's property by the guardian; and>
48-16 <(B) permitting the ward to care for himself or
48-17 herself or to manage the ward's property commensurate with the
48-18 ward's ability.>
48-19 <(e)> A request for an order under this section may be made
48-20 by informal letter to the court. A person who knowingly interferes
48-21 with the transmission of the request to the court may be adjudged
48-22 guilty of contempt of court.
48-23 (e) <(f)> If a nonresident guardian of a nonresident ward
48-24 qualifies as guardian under this chapter, the guardianship of any
48-25 resident guardian may be terminated.
48-26 (f) The guardianship of a missing person is not settled and
48-27 closed until the court grants the motion of any interested person
49-1 to vacate the original order of guardianship.
49-2 SECTION 41. Subpart A, Part 3, Chapter XIII, Texas Probate
49-3 Code, is amended by adding Section 694A to read as follows:
49-4 Sec. 694A. RESTORATION OF WARD. (a) A ward or any person
49-5 interested in the ward's welfare may petition the court for an
49-6 order:
49-7 (1) finding that the ward no longer needs the
49-8 guardianship and ordering the settlement and closing of the
49-9 guardianship;
49-10 (2) finding that the ward lacks the capacity to do
49-11 some or all of the tasks necessary to care for himself or herself
49-12 or to manage the ward's property and granting additional powers or
49-13 duties to the guardian with respect to the care of the ward or the
49-14 management of the ward's property by the guardian; or
49-15 (3) finding that the ward has regained the capacity to
49-16 do some, but not all, of the tasks necessary to care for himself or
49-17 herself or to manage the ward's property and:
49-18 (A) limiting the powers or duties of the
49-19 guardian with respect to the care of the ward or the management of
49-20 the ward's property by the guardian; and
49-21 (B) permitting the ward to care for himself or
49-22 herself or to manage the ward's property commensurate with the
49-23 ward's ability.
49-24 (b) A request for an order under this section may be made by
49-25 informal letter to the court. A person who knowingly interferes
49-26 with the transmission of the request to the court may be adjudged
49-27 guilty of contempt of court.
50-1 SECTION 42. Section 702, Texas Probate Code, is amended to
50-2 read as follows:
50-3 Sec. 702. Bond Required of Guardian of the Person Or Estate.
50-4 (a) Except as provided by Subsections (b) and (c) of this section,
50-5 a guardian of the person or of the estate of a ward is required to
50-6 give bond.
50-7 (b) A bond is not required to be given by a guardian that is
50-8 a corporate fiduciary, as defined by Section 601(5) of this code.
50-9 (c) When a will that is made by a surviving parent and is
50-10 probated in a court in this state directs that the guardian
50-11 appointed in the will serve without bond, the court finding that
50-12 the person is qualified shall issue letters of guardianship of the
50-13 person to the person named to be appointed guardian in the will
50-14 without requirement of bond. The court may not waive the
50-15 requirement of a bond for the guardian of the estate of a ward,
50-16 regardless of whether a surviving parent's will directs the court
50-17 to waive the bond.
50-18 SECTION 43. Section 742(f), Texas Probate Code, is amended
50-19 to read as follows:
50-20 (f) If an account is found to be incorrect, it shall be
50-21 corrected. When corrected to the satisfaction of the court, the
50-22 account shall be approved by a court order, and the court shall act
50-23 with respect to unpaid claims, as follows:
50-24 (1) if it appears from the exhibit, or from other
50-25 evidence, that the estate is wholly solvent, and that the guardian
50-26 has sufficient funds for the payment of every claim against the
50-27 estate, the court shall order immediate payment made of all claims
51-1 allowed and approved or established by judgment; and
51-2 (2) if it appears from the account, or from other
51-3 evidence, that the funds on hand are not sufficient for the payment
51-4 of all the claims, or if the estate is insolvent and the guardian
51-5 has any funds on hand, the court shall order the funds to be
51-6 applied to the payment of all claims having a preference in the
51-7 order of their priority if any claim is still unpaid, and then to
51-8 the payment pro rata of the other claims allowed and approved or
51-9 established by final judgment, taking into consideration also the
51-10 claims that were presented not later than 12 months after the date
51-11 of the granting of letters of guardianship <administration> and
51-12 those claims that are in suit or on which suit may yet be
51-13 instituted.
51-14 SECTION 44. Section 743(a), Texas Probate Code, is amended
51-15 to read as follows:
51-16 (a) The guardian of the person of a ward shall<, when there
51-17 is a separate guardian of the estate, shall at the expiration of 12
51-18 months from the date of the guardian's qualification and receipt of
51-19 letters, and annually thereafter,> return to the court a sworn,
51-20 written report <the guardian's sworn account> showing each item of
51-21 receipts and disbursements for the support and maintenance of the
51-22 ward, the education of the ward when necessary, and support and
51-23 maintenance of the ward's dependents, when authorized by order of
51-24 court.
51-25 SECTION 45. Section 743, Texas Probate Code, is amended by
51-26 adding Subsections (e)-(i) to read as follows:
51-27 (e) If the judge is satisfied that the facts stated in the
52-1 report are true, the court shall approve the report.
52-2 (f) The court on the court's own motion may waive the costs
52-3 and fees related to the filing of a report approved under
52-4 Subsection (e) of this section.
52-5 (g) Once each year for the duration of the guardianship, a
52-6 guardian of the person shall file the report that contains the
52-7 information required by Subsections (a) and (b) of this section.
52-8 Except as provided by Subsection (h) of this section, the report
52-9 must cover a 12-month reporting period that begins on the date the
52-10 guardian qualifies to serve.
52-11 (h) The court may change a reporting period for purposes of
52-12 this section but may not extend a reporting period so that it
52-13 covers more than 12 months.
52-14 (i) Each report is due not later than the 60th day after the
52-15 date on which the reporting period ends.
52-16 SECTION 46. Section 744, Texas Probate Code, is amended to
52-17 read as follows:
52-18 Sec. 744. Penalty for Failure to File Accountings, Exhibits,
52-19 or Reports. If a guardian fails to file any accounting, exhibit,
52-20 report of the guardian of the person, or other report required by
52-21 this chapter, any person interested in the estate may, on written
52-22 complaint filed with the clerk of the court, or the court on its
52-23 own motion, may cause the guardian to be cited to appear and show
52-24 cause why the guardian should not file the account, exhibit, or
52-25 report; and, on hearing, the court may order the guardian to file
52-26 the account, exhibit, or report, and, unless good cause is shown
52-27 for the failure to file the account, exhibit, or report, the court
53-1 may fine the guardian an amount not to exceed $1,000, revoke the
53-2 letters of the guardian, or fine the guardian an amount not to
53-3 exceed $1,000 and revoke the letters of the guardian <and may fine
53-4 the guardian an amount not to exceed $1,000>.
53-5 SECTION 47. Section 745(c), Texas Probate Code, is amended
53-6 to read as follows:
53-7 (c) When the estate of a minor ward consists only of cash or
53-8 cash equivalents in an amount of $25,000 or less, the guardianship
53-9 of the estate may be terminated and the assets paid to the county
53-10 clerk of the county in which the guardianship proceeding is
53-11 pending, and the clerk shall manage the funds as provided by
53-12 Section 887 <885> of this code.
53-13 SECTION 48. Section 759(a), Texas Probate Code, is amended
53-14 to read as follows:
53-15 (a) In case of the death of the guardian of the person or of
53-16 the estate of a ward, a personal representative of the deceased
53-17 guardian <person> shall account for, pay, and deliver to a person
53-18 legally entitled to receive the property, all the property
53-19 belonging to the guardianship that is entrusted to the care of the
53-20 representative, at the time and in the manner as the court orders.
53-21 On a finding that a necessity for the immediate appointment of a
53-22 successor guardian exists, the court may appoint a successor
53-23 guardian without citation or notice.
53-24 SECTION 49. Section 760, Texas Probate Code, is amended by
53-25 adding Subsection (g) to read as follows:
53-26 (g) The court at any time may order a resigning guardian who
53-27 has all or part of the estate of a ward to deliver all or part of
54-1 the ward's estate to a person who has been appointed and has
54-2 qualified as successor guardian.
54-3 SECTION 50. Section 761, Texas Probate Code, is amended by
54-4 adding Subsections (e) and (f) to read as follows:
54-5 (e) If the necessity exists, the court may immediately
54-6 appoint a successor but may not discharge the person removed as
54-7 guardian of the estate or release the person or the sureties on the
54-8 person's bond until final order or judgment is rendered on the
54-9 final account of the guardian.
54-10 (f) The court at any time may order a person removed as
54-11 guardian under this section who has all or part of the estate of a
54-12 ward to deliver all or part of the ward's estate to a person who
54-13 has been appointed and has qualified as successor guardian.
54-14 SECTION 51. Section 772, Texas Probate Code, is amended to
54-15 read as follows:
54-16 Sec. 772. Collection of Claims and Recovery of Property.
54-17 <(a)> Every guardian of an estate shall use ordinary diligence to
54-18 collect all claims and debts due the ward and to recover possession
54-19 of all property of the ward to which the ward has claim or title,
54-20 if there is a reasonable prospect of collecting the claims or of
54-21 recovering the property. If the guardian wilfully neglects to use
54-22 ordinary diligence, the guardian and the sureties on the guardian's
54-23 bond shall be liable, at the suit of any person interested in the
54-24 estate, for the use of the estate, for the amount of the claims or
54-25 for the value of the property that has been lost due to the
54-26 guardian's neglect.
54-27 <(b) Except as provided by Subsection (c) of this section, a
55-1 guardian of an estate may enter into a contract to convey, or may
55-2 convey, a contingent interest in any property sought to be
55-3 recovered, not exceeding one-third thereof for services of
55-4 attorneys, subject only to the approval of the court in which the
55-5 estate is being administered.>
55-6 <(c) A guardian of an estate may convey or contract to
55-7 convey for services of attorneys a contingent interest that exceeds
55-8 one-third of the property sought to be recovered under this section
55-9 only on the approval of the court in which the estate is being
55-10 administered. The court must approve a contract entered into or
55-11 conveyance made under this section before an attorney performs any
55-12 legal services. A contract entered into or conveyance made in
55-13 violation of this section is void, unless the court ratifies or
55-14 reforms the contract or documents relating to the conveyance to the
55-15 extent necessary to cause the contract or conveyance to meet the
55-16 requirements of this section.>
55-17 <(d) In approving a contract or conveyance under Subsection
55-18 (b) or (c) of this section for services of an attorney, the court
55-19 shall consider:>
55-20 <(1) the time and labor that will be required, the
55-21 novelty and difficulty of the questions to be involved, and the
55-22 skill that will be required to perform the legal services properly;>
55-23 <(2) the fee customarily charged in the locality for
55-24 similar legal services;>
55-25 <(3) the value of property recovered or sought to be
55-26 recovered by the personal representative under this section;>
55-27 <(4) the benefits to the estate that the attorney will
56-1 be responsible for securing; and>
56-2 <(5) the experience and ability of the attorney who
56-3 will be performing the services.>
56-4 <(e) On satisfactory proof to the court, a guardian of an
56-5 estate is entitled to all necessary and reasonable expenses
56-6 incurred by the guardian in collecting or attempting to collect a
56-7 claim or debt owed to the estate or in recovering or attempting to
56-8 recover property to which the estate has a title or claim.>
56-9 SECTION 52. Section 773, Texas Probate Code, is amended to
56-10 read as follows:
56-11 Sec. 773. SUIT BY GUARDIAN OF ESTATE. A guardian of a
56-12 ward's estate appointed in this state may institute suits for the
56-13 recovery of personal property, debts, or damages and suits for
56-14 title to or possession of land or for any right attached to or
56-15 growing out of the same or for injury or damage done. Judgment in
56-16 those cases shall be conclusive but may be set aside by any person
56-17 interested for fraud or collusion on the part of the guardian.
56-18 SECTION 53. Section 776(b), Texas Probate Code, is amended
56-19 to read as follows:
56-20 (b) When a guardian has in good faith expended funds from
56-21 the corpus of the estate of the ward of the guardian for support
56-22 and maintenance for the ward under this section or Section 777 of
56-23 this code, and when it is not convenient or possible for the
56-24 guardian to first secure court approval, if the proof is clear and
56-25 convincing that the expenditures were reasonable and proper, and
56-26 are expenditures that the court would have granted authority to
56-27 make the expenditures out of the corpus, and the ward received the
57-1 benefits of the expenditures, the court may approve the
57-2 expenditures in the same manner as if the expenditures were made by
57-3 the guardian out of the income from the ward's estate. An
57-4 expenditure under this subsection may not exceed $5,000 per ward
57-5 during an annual accounting period, unless the expenditure is made
57-6 to a nursing home in which case the court may ratify any amount.
57-7 SECTION 54. Section 782, Texas Probate Code, is amended to
57-8 read as follows:
57-9 Sec. 782. Powers, Duties, and Obligations of Guardian of
57-10 Person Entitled to Government Funds. (a) A guardian of the person
57-11 for whom it is necessary to have a guardian appointed to receive
57-12 funds from a governmental source <agency> has the power to
57-13 administer only the funds received from the governmental source
57-14 <agency>, all earnings, interest, or profits derived from the
57-15 funds, and all property acquired with the funds. The guardian has
57-16 the power to receive the funds and pay out the expenses of
57-17 administering the guardianship and the expenses for the support,
57-18 maintenance, or education of the ward or the ward's dependents.
57-19 Expenditures for the support, maintenance, or education of the ward
57-20 or the ward's dependents may not exceed $12,000 during any 12-month
57-21 period without the court's approval.
57-22 (b) All acts performed before September 1, 1993, by
57-23 guardians of the estate of a person for whom it is necessary to
57-24 have a guardian appointed to receive and disburse funds that are
57-25 due the person from a governmental source <or agency> are validated
57-26 if the acts are performed in conformance with orders of a court
57-27 that has venue with respect to the support, maintenance, and
58-1 education of the ward or the ward's dependents and the investment
58-2 of surplus funds of the ward under this chapter and if the validity
58-3 of the act is not an issue in a probate proceeding or civil lawsuit
58-4 that is pending on September 1, 1993.
58-5 SECTION 55. Section 861, Texas Probate Code, is amended to
58-6 read as follows:
58-7 Sec. 861. OPINION OF ATTORNEY WITH RESPECT TO LOANS <AND
58-8 INVESTMENTS>. When the guardian of the estate of a ward lends <or
58-9 invests> the money of the ward, the guardian may not pay over or
58-10 transfer any money in consummation of the loan <or investment>
58-11 until the guardian has submitted to a reputable attorney for
58-12 examination all bonds, notes, mortgages, documents, abstracts, and
58-13 other papers pertaining to the loan <or investment> and the
58-14 guardian has received a written opinion from the attorney that all
58-15 papers pertaining to the loan <or investment> are regular and that
58-16 the title to the bonds, notes, or real estate is good. The
58-17 <attorney making the examination shall be paid a reasonable fee,
58-18 not to exceed one percent of the amount invested, unless one
58-19 percent of the amount invested is less than $25, in which event
58-20 the fee shall be $25. The guardian shall pay the fee out of the
58-21 funds of the ward's estate. On a loan, the> attorney's fee shall
58-22 be paid by the borrower. The guardian may obtain a mortgagee's
58-23 title insurance policy on any real estate loan instead of an
58-24 abstract and attorney's opinion.
58-25 SECTION 56. Section 862, Texas Probate Code, is amended to
58-26 read as follows:
58-27 Sec. 862. REPORT OF <INVESTMENT AND> LOANS. Not later than
59-1 the 30th day after the date money belonging to a ward's estate is
59-2 lent <or invested>, the guardian of the ward's estate shall report
59-3 to the court in writing, verified by affidavit, stating fully the
59-4 facts of the <investment or> loan, unless the <investment or> loan
59-5 was made pursuant to a court order.
59-6 SECTION 57. Section 867, Texas Probate Code, is amended to
59-7 read as follows:
59-8 Sec. 867. Creation of Management Trust. On application by
59-9 the guardian of a ward, the court in which the guardianship
59-10 proceeding is pending may enter an order that creates for the
59-11 ward's benefit a trust for the management of guardianship funds if
59-12 the court finds that the creation of the trust is in the ward's
59-13 best interests. The order shall direct the guardian to deliver all
59-14 or part of the assets of the guardianship to a trust company or a
59-15 state or national bank that has trust powers in this state. The
59-16 order shall include terms, conditions, and limitations placed on
59-17 the trust. The court shall maintain the trust under the same cause
59-18 number as the guardianship proceeding.
59-19 SECTION 58. Section 868(b), Texas Probate Code, is amended
59-20 to read as follows:
59-21 (b) The trust may provide that a trustee make a
59-22 distribution, payment, use, or application of trust funds, as
59-23 necessary and without the intervention of a guardian or other
59-24 representative of the ward, to the ward's guardian or to a person
59-25 who has physical custody of the ward for<:>
59-26 <(1)> the health, education <benefit>, support, or
59-27 maintenance of the ward or of another person whom the ward is
60-1 legally obligated to support <if the ward is a minor; or>
60-2 <(2) the support of the ward, and the support,
60-3 maintenance, and education of the ward's children if the ward is an
60-4 incapacitated person other than a minor>.
60-5 SECTION 59. Section 868, Texas Probate Code, is amended by
60-6 adding Subsection (c) to read as follows:
60-7 (c) The trust may provide that a trustee has the powers of a
60-8 trustee under Subtitle B, Title 9, Property Code.
60-9 SECTION 60. Subpart N, Part 4, Texas Probate Code, is
60-10 amended by adding Section 869A to read as follows:
60-11 Sec. 869A. SUCCESSOR TRUSTEE. The court may appoint a
60-12 corporate fiduciary as successor trustee if the trustee resigns,
60-13 becomes ineligible, or is removed.
60-14 SECTION 61. Section 870(b), Texas Probate Code, is amended
60-15 to read as follows:
60-16 (b) If the ward is an incapacitated person other than a
60-17 minor, the trust terminates on the date the court determines that a
60-18 guardianship is no longer necessary for the ward or on the death of
60-19 the ward <before the court's determination that a guardianship is
60-20 no longer necessary>.
60-21 SECTION 62. Section 872, Texas Probate Code, is amended to
60-22 read as follows:
60-23 Sec. 872. Liability. The guardian of the person or of the
60-24 estate of the ward or the surety on the bond of the guardian is not
60-25 liable for an act or omission of the trustee.
60-26 SECTION 63. Section 873, Texas Probate Code, is amended to
60-27 read as follows:
61-1 Sec. 873. Distribution of Trust Property. Unless otherwise
61-2 provided by the court, the trustee shall:
61-3 (1) prepare a final account in the same form and
61-4 manner that is required of a guardian under Section 749 of this
61-5 code; and
61-6 (2) on court approval, distribute the principal or any
61-7 undistributed income of the trust:
61-8 (A) to the ward when the trust terminates on its
61-9 own terms;
61-10 (B) to the successor trustee on appointment of a
61-11 successor trustee; or
61-12 (C) to the representative of the deceased ward's
61-13 estate on the ward's death <to the ward or to the representative of
61-14 the deceased ward's estate when the trust terminates on its own
61-15 terms or on the ward's death>.
61-16 SECTION 64. Sections 875(c), (i), (j), and (k), Texas
61-17 Probate Code, are amended to read as follows:
61-18 (c) A sworn, written application for the appointment of a
61-19 temporary guardian may be filed before the court appoints a
61-20 temporary guardian. The application must be filed not later than
61-21 the end of the next business day of the court after the date of
61-22 appointment of the temporary guardian. The application must state:
61-23 (1) the name and address of the person who is the
61-24 subject of the guardianship proceeding;
61-25 (2) the danger to the person or property alleged to be
61-26 imminent;
61-27 (3) the type of appointment and the particular
62-1 protection and assistance being requested;
62-2 (4) the facts and reasons supporting the allegations
62-3 and requests;
62-4 (5) the name, address, and qualification of the
62-5 proposed temporary guardian;
62-6 (6) the name, address, and interest of the applicant;
62-7 (7) the social security numbers of the applicant and
62-8 proposed ward; and
62-9 (8) if applicable, that the proposed temporary
62-10 guardian is a private professional guardian who has complied with
62-11 the requirements of Section 697 of this code.
62-12 (i) If the court appoints a temporary guardian after the
62-13 hearing required by Subsection (f)(1) of this section, all court
62-14 costs, including attorney's fees, may be assessed as provided in
62-15 Section 665A, 665B, or 669 of this code.
62-16 (j) The court may not customarily or ordinarily appoint the
62-17 <Texas> Department of Protective and Regulatory <Human> Services as
62-18 a temporary guardian under this section. The appointment of the
62-19 department as a temporary guardian under this section should be
62-20 made only as a last resort.
62-21 (k) If an application for a temporary guardianship, for the
62-22 conversion of <or an application to convert> a temporary
62-23 guardianship to a permanent guardianship, or for a permanent
62-24 guardianship is challenged or contested, the court, on the court's
62-25 own motion or on the motion of any interested party, may appoint a
62-26 new temporary guardian without issuing additional citation if the
62-27 court finds that the appointment is necessary to protect the
63-1 proposed ward or the proposed ward's estate. A temporary guardian
63-2 appointed under this subsection must qualify in the same form and
63-3 manner required of a guardian under this code. The term of the
63-4 temporary guardian expires at the conclusion of the hearing
63-5 challenging or contesting the application or on the date a
63-6 permanent guardian the court appoints for the proposed ward
63-7 qualifies to serve as the ward's guardian <shall appoint a
63-8 temporary guardian whose term expires at the conclusion of the
63-9 hearing or the period provided by Subsection (h) of this section,
63-10 whichever is later>.
63-11 SECTION 65. Section 881, Texas Probate Code, is amended by
63-12 adding Subsection (e) to read as follows:
63-13 (e) A resident guardian who has any of the estate of a ward
63-14 may be ordered by the court to deliver the estate to a duly
63-15 qualified and acting guardian of the ward.
63-16 SECTION 66. Subpart B, Part 5, Chapter XIII, Texas Probate
63-17 Code, is amended by adding Section 881A to read as follows:
63-18 Sec. 881A. NONRESIDENT GUARDIAN'S REMOVAL OF WARD'S PROPERTY
63-19 FROM STATE. A nonresident guardian, regardless of whether the
63-20 nonresident guardian is qualified under this code, may remove
63-21 personal property of the ward out of the state if:
63-22 (1) the removal does not conflict with the tenure of
63-23 the property or the terms and limitations of the guardianship under
63-24 which the property is held; and
63-25 (2) all debts known to exist against the estate in
63-26 this state are paid or secured by bond payable to and approved by
63-27 the judge of the court in which guardianship proceedings are
64-1 pending in this state.
64-2 SECTION 67. Subpart C, Part 5, Chapter XIII, Texas Probate
64-3 Code, is amended by adding Section 883A to read as follows:
64-4 Sec. 883A. RECOVERY OF CAPACITY. The special powers of
64-5 management, control, and disposition vested in the same spouse by
64-6 this code shall terminate when the decree of a court of competent
64-7 jurisdiction finds that the mental capacity of the other spouse has
64-8 been recovered.
64-9 SECTION 68. Section 889(a), Texas Probate Code, is amended
64-10 to read as follows:
64-11 (a) When the value of the minor's interest in real or
64-12 personal property in an estate does not exceed $25,000, a natural
64-13 or adoptive parent, or the managing conservator, of a minor who is
64-14 not a ward may apply to the court for an order to sell the real or
64-15 personal property of a minor in an estate without being appointed
64-16 guardian. A minor may not disaffirm a sale of property pursuant to
64-17 a court order under this section.
64-18 SECTION 69. Section 889(f), Texas Probate Code, is amended
64-19 to read as follows:
64-20 (f) Nothing in this section prevents the proceeds deposited
64-21 in the registry from being withdrawn from the court registry under
64-22 Section 887 <885> of this code.
64-23 SECTION 70. Section 19, Polygraph Examiners Act (Article
64-24 4413(29cc), Vernon's Texas Civil Statutes), is amended to read as
64-25 follows:
64-26 Sec. 19. Refusal, Probation, Reprimand, Suspension,
64-27 Revocation--Grounds. The board shall refuse to issue a license,
65-1 shall revoke or suspend a license, shall reprimand a licensee, or
65-2 may probate a license suspension on any one or more of the
65-3 following grounds:
65-4 (1) for failing to inform a subject to be examined as
65-5 to the nature of the examination;
65-6 (2) for failing to inform a subject to be examined
65-7 that his participation in the examination is voluntary;
65-8 (3) material misstatement in the application for
65-9 original license or in the application for any renewal license
65-10 under this Act;
65-11 (4) wilful disregard or violation of this Act or of
65-12 any regulation or rule issued pursuant thereto, including, but not
65-13 limited to, wilfully making a false report concerning an
65-14 examination for polygraph examination purposes;
65-15 (5) if the holder of any license has been adjudged
65-16 guilty of the commission of a felony or a misdemeanor involving
65-17 moral turpitude;
65-18 (6) making any wilful misrepresentation or false
65-19 promises or causing to be printed any false or misleading
65-20 advertisement for the purpose of directly or indirectly obtaining
65-21 business or trainees;
65-22 (7) having demonstrated unworthiness or incompetency
65-23 to act as a polygraph examiner as defined by this Act;
65-24 (8) allowing one's license under this Act to be used
65-25 by any unlicensed person in violation of the provisions of this
65-26 Act;
65-27 (9) wilfully aiding or abetting another in the
66-1 violation of this Act or any regulation or rule issued pursuant
66-2 thereto;
66-3 (10) where the license holder has been adjudged
66-4 incapacitated <as a habitual drunkard or mentally incompetent> as
66-5 provided in the Probate Code;
66-6 (11) failing, within a reasonable time, to provide
66-7 information requested by the secretary as the result of a formal
66-8 complaint to the board which would indicate a violation of this
66-9 Act;
66-10 (12) failing to inform the subject of the results of
66-11 the examination if so requested;
66-12 (13) violating Subsection (a) of Section 19A of this
66-13 Act relating to the confidentiality of information acquired from an
66-14 examination; or
66-15 (14) violating Section 51.151, Family Code, relating
66-16 to the examination of a child taken into custody.
66-17 SECTION 71. Section 5.08(j)(1), Medical Practice Act
66-18 (Article 4495b, Vernon's Texas Civil Statutes), is amended to read
66-19 as follows:
66-20 (j)(1) Consent for the release of confidential
66-21 information must be in writing and signed by the patient, or a
66-22 parent or legal guardian if the patient is a minor, or a legal
66-23 guardian if the patient has been adjudicated incapacitated
66-24 <incompetent> to manage his personal affairs, or an attorney ad
66-25 litem appointed for the patient, as authorized by Subtitle C, Title
66-26 7, Health and Safety Code <the Texas Mental Health Code (Article
66-27 5547-1 et seq., Vernon's Texas Civil Statutes)>; Subtitle D, Title
67-1 7, Health and Safety Code <the Mentally Retarded Persons Act of
67-2 1977 (Article 5547-300, Vernon's Texas Civil Statutes)>; <Section
67-3 9, Chapter 411, Acts of the 53rd Legislature, Regular Session, 1953
67-4 (Article 5561c, Vernon's Texas Civil Statutes); Section 2, Chapter
67-5 543, Acts of the 61st Legislature, Regular Session, 1969 (Article
67-6 5561c-1, Vernon's Texas Civil Statutes);> Chapter XIII <5>, Texas
67-7 Probate Code; and Chapter 11, Family Code; or a personal
67-8 representative if the patient is deceased, provided that the
67-9 written consent specifies the following:
67-10 (A) the information or medical records to be
67-11 covered by the release;
67-12 (B) the reasons or purposes for the release; and
67-13 (C) the person to whom the information is to be
67-14 released.
67-15 SECTION 72. Sections 25.0025(c), (d), and (e), Government
67-16 Code, are repealed.
67-17 SECTION 73. The following provisions of the Texas Probate
67-18 Code are repealed:
67-19 (1) Sections 3(n), 3(y), 110, 111, 112A, 118, 123A,
67-20 127A, 157, 159, 236, 236A, 688, and 688A; and
67-21 (2) Subpart G, Part 5, Chapter XIII.
67-22 SECTION 74. Section 646(e), Texas Probate Code, is repealed.
67-23 SECTION 75. Not later than September 1, 1996, a court that
67-24 has jurisdiction and venue over a guardianship proceeding in which
67-25 the application to create the guardianship was filed before
67-26 September 1, 1993, shall review the guardianship to determine
67-27 whether the guardianship should be continued, modified, or
68-1 terminated to conform with the requirements of Chapter XIII, Texas
68-2 Probate Code.
68-3 SECTION 76. This Act takes effect September 1, 1995, except
68-4 that Section 75 of this Act takes effect September 1, 1996.
68-5 SECTION 77. The changes in law made by this Act to Sections
68-6 636 and 665, Texas Probate Code, apply only to an application for
68-7 the appointment of a guardian that is filed on or after the
68-8 effective date of this Act. An application filed before the
68-9 effective date of this Act is governed by the law in effect on the
68-10 date the application was filed, and that law is continued in effect
68-11 for that purpose.
68-12 SECTION 78. The change in law made by this Act to Section
68-13 702, Texas Probate Code, applies only to a person appointed by a
68-14 court to serve as guardian on or after the effective date of this
68-15 Act. A person who is appointed by a court to serve as guardian
68-16 before the effective date of this Act is governed by the law in
68-17 effect immediately before the effective date of this Act, and that
68-18 law is continued in effect for that purpose.
68-19 SECTION 79. The importance of this legislation and the
68-20 crowded condition of the calendars in both houses create an
68-21 emergency and an imperative public necessity that the
68-22 constitutional rule requiring bills to be read on three several
68-23 days in each house be suspended, and this rule is hereby suspended.