1-1 AN ACT
1-2 relating to guardianships for incapacitated persons.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 665, Texas Probate Code, is amended to
1-5 read as follows:
1-6 Sec. 665. COMPENSATION OF GUARDIANS AND TEMPORARY GUARDIANS.
1-7 (a) The court may authorize compensation for a guardian or a
1-8 temporary guardian serving as a guardian of the person alone from
1-9 available funds of the ward's estate. The court shall set the
1-10 compensation in an amount not exceeding five percent of the ward's
1-11 gross income. In determining whether to authorize compensation for
1-12 a guardian under this section, the court shall consider the ward's
1-13 monthly income from all sources and whether the ward receives
1-14 medical assistance under the state Medicaid program.
1-15 (b) The guardian or temporary guardian of an estate is
1-16 entitled to a fee of five percent of the gross income of the ward's
1-17 estate and five percent of all money paid out of the estate on a
1-18 court finding that the guardian or temporary guardian has taken
1-19 care of and managed the estate in compliance with the standards of
1-20 this chapter. In this section, the term "money paid out" does not
1-21 include any money loaned, invested, or paid over on the settlement
1-22 of the guardianship or a tax-motivated gift made by the ward. If
1-23 the fee is an unreasonably low amount, the court may authorize
1-24 reasonable compensation to a guardian or temporary guardian for
2-1 services as guardian or temporary guardian of the estate. The
2-2 court, on application of an interested person or on its own motion,
2-3 may deny a fee authorized under this section in whole, or in part,
2-4 if:
2-5 (1) the court finds that the guardian or temporary
2-6 guardian has not adequately performed the duties required of a
2-7 guardian or temporary guardian under this chapter; or
2-8 (2) the guardian or temporary guardian has been
2-9 removed for cause.
2-10 (c) Except as provided by Subsection (b) of this section for
2-11 a fee that is determined by the court to be unreasonably low, the
2-12 aggregate fee of the guardian of the person and guardian of the
2-13 estate may not exceed an amount equal to five percent of the gross
2-14 income of the ward's estate plus five percent of all money paid out
2-15 of the estate.
2-16 (d) If the estate of a ward is insufficient to pay for the
2-17 services of a private professional guardian or a licensed attorney
2-18 serving as guardian of the ward's person, the court may authorize
2-19 compensation for that guardian if funds in the county treasury are
2-20 budgeted for that purpose.
2-21 (e) In this section "gross income" does not include
2-22 Department of Veterans Affairs or Social Security benefits received
2-23 by a ward.
2-24 SECTION 2. Section 665B(a), Texas Probate Code, is amended
2-25 to read as follows:
2-26 (a) A court that creates a guardianship for a ward under
2-27 this chapter, on request of a person who filed an application to be
3-1 appointed guardian of the proposed ward, may authorize compensation
3-2 of an attorney who represents the person at the application
3-3 hearing, regardless of whether the person is appointed the ward's
3-4 guardian, from:
3-5 (1) available funds of the ward's estate; or
3-6 (2) the county treasury if:
3-7 (A) the ward's estate is insufficient to pay for
3-8 the services provided by the attorney; and
3-9 (B) funds in the county treasury are budgeted
3-10 for that purpose [regardless of whether that person is appointed
3-11 the ward's guardian].
3-12 SECTION 3. Section 683, Texas Probate Code, is amended to
3-13 read as follows:
3-14 Sec. 683. COURT'S INITIATION OF GUARDIANSHIP PROCEEDINGS.
3-15 (a) If a court has probable cause to believe that a person
3-16 domiciled or found in the county in which the court is located is
3-17 an incapacitated person, and the person does not have a guardian in
3-18 this state, the court shall appoint a guardian ad litem or court
3-19 investigator to investigate and file an application for the
3-20 appointment of a guardian of the person or estate, or both, of the
3-21 person believed to be incapacitated.
3-22 (b) To establish probable cause under this section, the
3-23 court may require:
3-24 (1) an information letter about the person believed to
3-25 be incapacitated that is submitted by an interested person and
3-26 satisfies the requirements of Section 683A of this code; or
3-27 (2) a written letter or certificate from a physician
4-1 who has examined the person believed to be incapacitated that
4-2 satisfies the requirements of Section 687(a) of this code, except
4-3 that the letter must be dated not earlier than the 120th day before
4-4 the date of the filing of an application under Subsection (a) of
4-5 this section and be based on an examination the physician performed
4-6 not earlier than the 120th day before that date.
4-7 (c) A court that creates a guardianship for a ward under
4-8 this chapter may authorize compensation of a guardian ad litem who
4-9 files an application under Subsection (a) of this section from
4-10 available funds of the ward's estate. If after examining the
4-11 ward's assets the court determines the ward is unable to pay for
4-12 services provided by the guardian ad litem, the court may authorize
4-13 compensation from the county treasury.
4-14 SECTION 4. Subpart A, Part 3, Chapter XIII, Texas Probate
4-15 Code, is amended by adding Section 683A to read as follows:
4-16 Sec. 683A. INFORMATION LETTER. An information letter under
4-17 Section 683(b)(1) of this code about a person believed to be
4-18 incapacitated may:
4-19 (1) include the name, address, telephone number,
4-20 county of residence, and date of birth of the person;
4-21 (2) state whether the residence of the person is a
4-22 private residence, health care facility, or other type of
4-23 residence;
4-24 (3) describe the relationship between the interested
4-25 person and the person;
4-26 (4) contain the names and telephone numbers of any
4-27 known friends and relatives of the person;
5-1 (5) state whether a guardian of the person or estate
5-2 of the person has been appointed in this state;
5-3 (6) state whether the person has executed a power of
5-4 attorney and, if so, the designee's name, address, and telephone
5-5 number;
5-6 (7) describe any property of the person, including the
5-7 estimated value of that property;
5-8 (8) list any amount and source of monthly income of
5-9 the person; and
5-10 (9) describe the nature and degree of the person's
5-11 alleged incapacity and include a statement of whether the person is
5-12 in imminent danger of serious impairment to the person's physical
5-13 health, safety, or estate.
5-14 SECTION 5. Section 743, Texas Probate Code, is amended by
5-15 adding Subsection (j) to read as follows:
5-16 (j) A guardian of the person may complete and file the
5-17 report required under this section without the assistance of an
5-18 attorney.
5-19 SECTION 6. (a) The changes in law made by this Act to
5-20 Sections 665 and 665B(a), Texas Probate Code, apply only to
5-21 compensation for a guardian of the person that is authorized by a
5-22 court on or after the effective date of this Act.
5-23 (b) Compensation for a guardian of the person that is
5-24 authorized by a court before the effective date of this Act is
5-25 governed by the law in effect on the date the compensation was
5-26 authorized, and the former law is continued in effect for that
5-27 purpose.
6-1 SECTION 7. (a) Section 743(j), Texas Probate Code, as added
6-2 by this Act, applies only to an account or report filed on or after
6-3 the effective date of this Act.
6-4 (b) An account or report filed before the effective date of
6-5 this Act is governed by the law in effect on the date the account
6-6 or report was filed, and the former law is continued in effect for
6-7 that purpose.
6-8 SECTION 8. This Act takes effect September 1, 1999.
6-9 SECTION 9. The importance of this legislation and the
6-10 crowded condition of the calendars in both houses create an
6-11 emergency and an imperative public necessity that the
6-12 constitutional rule requiring bills to be read on three several
6-13 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2165 was passed by the House on May
8, 1999, by a non-record vote; and that the House concurred in
Senate amendments to H.B. No. 2165 on May 22, 1999, by a non-record
vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 2165 was passed by the Senate, with
amendments, on May 20, 1999, by a viva-voce vote.
_______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor