AUTHOR'S / SPONSOR'S STATEMENT OF INTENT
The purpose of this legislation is to ensure that persons under guardianship understand their rights. Persons under guardianship often retain many legal and civil rights, depending on the court order. Unfortunately, often times they are not informed of the rights they get to keep and presume they have no rights whatsoever. Incidentally, some guardians are under the same assumption. There are few legal processes more restrictive of citizens in a free society than guardianship. It is important that the persons under guardianship know the rights that they get to keep, unless the court has determined otherwise.
C.S.S.B. 1882 would codify in the Estates Code the 24 rights that already are granted for persons under guardianship. The rights include: to participate in social, religious, and recreational activities, training, employment, education, habilitation, and rehabilitation of the person who is under guardianship in the most integrated setting of his or her choice; to visit with people of his or her choice; to contact the Department of Family and Protective Services he or she feels abused or neglected; and the right to vote.
What's more, the committee substitute would allow a person under guardianship to request a hearing to remove restrictions imposed by a guardian regarding communication and visitation; require attorneys representing a person in guardianship matters to be certified in guardianship law; require a guardian or his or her designee to visit the person under guardianship every three months; provide a person under guardianship the right to receive notice regarding court proceedings to continue, change, or terminate the guardianship, as well as matters that involve the real and personal property of a person under guardianship; and clarify that a person under guardianship is allowed to petition the court to enforce the rights under this subsection.
C.S.S.B. 1882 amends current law relating to a bill of rights for wards under guardianship.
RULEMAKING AUTHORITY
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 1151, Estates Code, by adding Subchapter H, as follows:
SUBCHAPTER H. RIGHTS OF WARDS
Sec. 1151.351. BILL OF RIGHTS FOR WARDS. (a) Provides that a ward has all the rights, benefits, responsibilities, and privileges granted by the constitution and laws of this state and the United States, except where specifically limited by a court-ordered guardianship or where otherwise lawfully restricted.
(b) Provides that, unless a right is limited by a court or otherwise restricted by law, a ward has the right:
(1) to have a copy of the guardianship order and letters of guardianship and contact information for the probate court that issued the order and letters;
(2) to have a guardianship that encourages the development or maintenance of maximum self-reliance and independence in the ward with the eventual goal, if possible, of self-sufficiency;
(3) to be treated with respect, consideration, and recognition of the ward's dignity and individuality;
(4) to reside and receive support services in the most integrated setting, including home-based or other community-based settings, as required by Title II of the Americans with Disabilities Act (42 U.S.C. Section 12131 et seq.);
(5) to consideration of the ward's current and previously stated personal preferences, desires, medical and psychiatric treatment preferences, religious beliefs, living arrangements, and other preferences and opinions;
(6) to financial self-determination for all public benefits after essential living expenses and health needs are met and to have access to a monthly personal allowance;
(7) to receive timely and appropriate health care and medical treatment that does not violate the ward's rights granted by the constitution and laws of this state and the United States;
(8) to exercise full control of all aspects of life not specifically granted by the court to the guardian;
(9) to control the ward's personal environment based on the ward's personal preferences;
(10) to complain or raise concerns regarding the guardian or guardianship to the court, including living arrangements, retaliation by the guardian, conflicts of interest between the guardian and service providers, or a violation of any rights under this section;
(11) to receive notice in the ward's native language, or preferred mode of communication, and in a manner accessible to the ward, of a court proceeding to continue, modify, or terminate the guardianship and the opportunity to appear before the court to express the ward's preferences and concerns regarding whether the guardianship should be continued, modified, or terminated;
(12) to have a court investigator, guardian ad litem, or attorney ad litem appointed by the court to investigate a complaint received from the ward or any person about the guardianship;
(13) to participate in social, religious, and recreational activities, training, employment, education, habilitation, and rehabilitation of the ward's choice in the most integrated setting;
(14) to self-determination in the substantial maintenance, disposition, and management of real and personal property after essential living expenses and health needs are met, including the right to receive notice and object about the substantial maintenance, disposition, or management of clothing, furniture, vehicles, and other personal effects;
(15) to personal privacy and confidentiality in personal matters, subject to state and federal law;
(16) to unimpeded, private, and uncensored communication and visitation with persons of the ward's choice, except that if the guardian determines that certain communication or visitation causes substantial harm to the ward:
(A) the guardian may limit, supervise, or restrict communication or visitation, but only to the extent necessary to protect the ward from substantial harm; and
(B) the ward may request a hearing to remove any restrictions on communication or visitation imposed by the guardian under Paragraph (A);
(17) to petition the court and retain counsel of the ward's choice who holds a certificate required by Subchapter E (Qualifications to Serve as Court-Appointed Attorney), Chapter 1054, to represent the ward's interest for capacity restoration, modification of the guardianship, the appointment of a different guardian, or for other appropriate relief under this subchapter, including a transition to a supported decision-making agreement, except as limited by Section 1054.006 (Representation of Ward or Proposed Ward by Attorney);
(18) to vote in a public election, marry, and retain a license to operate a motor vehicle, unless restricted by the court;
(19) to personal visits from the guardian or the guardian's designee at least once every three months, but more often, if necessary, unless the court orders otherwise;
(20) to be informed of the name, address, phone number, and purpose of Disability Rights Texas, an organization whose mission is to protect the rights of, and advocate for, persons with disabilities, and to communicate and meet privately with representatives of that organization;
(21) to be informed of the name, address, phone number, and purpose of an independent living center, an area agency on aging, an aging and disability resource center, and the local mental health and intellectual and developmental disability center, and to communicate and meet with representatives from these agencies and organizations;
(22) to be informed of the name, address, phone number, and purpose of the Judicial Branch Certification Commission and the procedure for filing a complaint against a certified guardian;
(23) to contact the Department of Family and Protective Services to report abuse, neglect, exploitation, or violation of personal rights without fear of punishment, interference, coercion, or retaliation; and
(24) to have the guardian, on appointment and on annual renewal of the guardianship, explain the rights delineated in this subsection in the ward's native language, or preferred mode of communication, and in a manner accessible to the ward.
(c) Authorizes a ward under guardianship to petition the court for the specific enforcement of any right described by Subsection (b).
(d) Authorizes the court, in accordance with Section 1155.151 (Costs in Guardianship Proceeding Generally) to award attorney's fees to an attorney appointed or retained to represent a ward in a proceeding to enforce the ward's rights under this section.
(e) Provides that this section does not supersede or abrogate other remedies existing in law.
SECTION 2. Effective date: upon passage or September 1, 2015.