S.B. No. 39
 
 
 
 
AN ACT
  relating to estates and to guardianships, substitutes for
  guardianships, and durable powers of attorney for persons with
  disabilities or who are incapacitated.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  (a) Section 361.052, Estates Code, is amended to
  read as follows:
         Sec. 361.052.  REMOVAL WITH NOTICE. (a)  The court may
  remove a personal representative on the court's own motion, or on
  the complaint of any interested person, after the representative
  has been cited by personal service to answer at a time and place set
  [fixed] in the notice, if:
               (1)  sufficient grounds appear to support a belief that
  the representative has misapplied, embezzled, or removed from the
  state, or is about to misapply, embezzle, or remove from the state,
  all or part of the property entrusted to the representative's care;
               (2)  the representative fails to return any account
  required by law to be made;
               (3)  the representative fails to obey a proper order of
  the court that has jurisdiction with respect to the performance of
  the representative's duties;
               (4)  the representative is proved to have been guilty
  of gross misconduct, or mismanagement in the performance of the
  representative's duties;
               (5)  the representative:
                     (A)  becomes incapacitated;
                     (B)  is sentenced to the penitentiary; or
                     (C)  from any other cause, becomes incapable of
  properly performing the duties of the representative's trust; or
               (6)  the representative, as executor or administrator,
  fails to[:
                     [(A)]  make a final settlement by the third
  anniversary of the date letters testamentary or of administration
  are granted, unless that period is extended by the court on a
  showing of sufficient cause supported by oath[; or
                     [(B)     timely file the affidavit or certificate
  required by Section 308.004].
         (b)  If a personal representative, as executor or
  administrator, fails to timely file the affidavit or certificate
  required by Section 308.004, the court, on the court's own motion,
  may remove the personal representative after providing 30 days'
  written notice to the personal representative to answer at a time
  and place set in the notice, by certified mail, return receipt
  requested, to:
               (1)  the representative's last known address; and
               (2)  the last known address of the representative's
  attorney of record.
         (b)  Section 404.0035, Estates Code, is amended to read as
  follows:
         Sec. 404.0035.  REMOVAL OF INDEPENDENT EXECUTOR WITH NOTICE.
  (a)  The probate court, on the court's own motion, may remove an
  independent executor appointed under this subtitle after providing
  30 days' written notice of the court's intention to the independent
  executor, requiring answering at a time and place set in the notice
  [of the court's intent to remove the independent executor], by
  certified mail, return receipt requested, to the independent
  executor's last known address and to the last known address of the
  independent executor's attorney of record, if the independent
  executor:
               (1)  neglects to qualify in the manner and time
  required by law; [or]
               (2)  fails to return, before the 91st day after the date
  the independent executor qualifies, either an inventory of the
  estate property and a list of claims that have come to the
  independent executor's knowledge or an affidavit in lieu of the
  inventory, appraisement, and list of claims, unless that deadline
  is extended by court order; or
               (3)  fails to timely file the affidavit or certificate
  required by Section 308.004.
         (b)  The probate court, on its own motion or on motion of any
  interested person, after the independent executor has been cited by
  personal service to answer at a time and place set [fixed] in the
  notice, may remove an independent executor when:
               (1)  the independent executor fails to make an
  accounting which is required by law to be made;
               (2)  [the independent executor fails to timely file the
  affidavit or certificate required by Section 308.004;
               [(3)]  the independent executor is proved to have been
  guilty of gross misconduct or gross mismanagement in the
  performance of the independent executor's duties;
               (3) [(4)]  the independent executor becomes an
  incapacitated person, or is sentenced to the penitentiary, or from
  any other cause becomes legally incapacitated from properly
  performing the independent executor's fiduciary duties; or
               (4) [(5)]  the independent executor becomes incapable
  of properly performing the independent executor's fiduciary duties
  due to a material conflict of interest.
         (c)  Section 1023.003, Estates Code, is amended to read as
  follows:
         Sec. 1023.003.  [APPLICATION FOR] TRANSFER OF GUARDIANSHIP
  TO ANOTHER COUNTY. (a)  When a guardian or any other person desires
  to transfer the transaction of the business of the guardianship
  from one county to another, the person shall file a written
  application in the court in which the guardianship is pending
  stating the reason for the transfer.
         (b)  With notice as provided by Section 1023.004, the court
  in which a guardianship is pending, on the court's own motion, may
  transfer the transaction of the business of the guardianship to
  another county if the ward resides in the county to which the
  guardianship is to be transferred.
         (d)  Section 1023.004, Estates Code, is amended to read as
  follows:
         Sec. 1023.004.  NOTICE. (a)  On filing an application or on
  motion of a court to transfer a guardianship to another county under
  Section 1023.003, the sureties on the bond of the guardian shall be
  cited by personal service to appear and show cause why the
  guardianship [application] should not be transferred [granted].
         (b)  If an application is filed by a person other than the
  guardian or if a court made a motion to transfer a guardianship, the
  guardian shall be cited by personal service to appear and show cause
  why the guardianship [application] should not be transferred
  [granted].
         (e)  Section 1023.005, Estates Code, is amended to read as
  follows:
         Sec. 1023.005.  COURT ACTION. On hearing an application or
  motion under Section 1023.003, if good cause is not shown to deny
  the transfer [application] and it appears that transfer of the
  guardianship is in the best interests of the ward, the court shall
  enter an order:
               (1)  authorizing the transfer on payment on behalf of
  the estate of all accrued costs; and
               (2)  requiring that any existing bond of the guardian
  must remain in effect until a new bond has been given or a rider has
  been filed in accordance with Section 1023.010.
         (f)  Section 1203.052, Estates Code, is amended by amending
  Subsection (a) and adding Subsection (a-1) to read as follows:
         (a)  The court may remove a guardian as provided by
  Subsection (a-1) [on the court's own motion, or on the complaint of
  an interested person, after the guardian has been cited by personal
  service to answer at a time and place set in the notice,] if:
               (1)  sufficient grounds appear to support a belief that
  the guardian has misapplied, embezzled, or removed from the state,
  or is about to misapply, embezzle, or remove from the state, any of
  the property entrusted to the guardian's care;
               (2)  the guardian fails to return any account or report
  that is required by law to be made;
               (3)  the guardian fails to obey a proper order of the
  court that has jurisdiction with respect to the performance of the
  guardian's duties;
               (4)  the guardian is proved to have been guilty of gross
  misconduct or mismanagement in the performance of the guardian's
  duties;
               (5)  the guardian:
                     (A)  becomes incapacitated;
                     (B)  is sentenced to the penitentiary; or
                     (C)  from any other cause, becomes incapable of
  properly performing the duties of the guardian's trust;
               (6)  the guardian has engaged in conduct with respect
  to the ward that would be considered to be abuse, neglect, or
  exploitation, as those terms are defined by Section 48.002, Human
  Resources Code, if engaged in with respect to an elderly or disabled
  person, as defined by that section;
               (7)  the guardian neglects to educate or maintain the
  ward as liberally as the means of the ward's estate and the ward's
  ability or condition permit;
               (8)  the guardian interferes with the ward's progress
  or participation in programs in the community;
               (9)  the guardian fails to comply with the requirements
  of Subchapter G, Chapter 1104;
               (10)  the court determines that, because of the
  dissolution of the joint guardians' marriage, the termination of
  the guardians' joint appointment and the continuation of only one
  of the joint guardians as the sole guardian is in the best interest
  of the ward; or
               (11)  the guardian would be ineligible for appointment
  as a guardian under Subchapter H, Chapter 1104.
         (a-1)  The court may remove a guardian for a reason listed in
  Subsection (a) on the:
               (1)  court's own motion, after the guardian has been
  notified, by certified mail, return receipt requested, to answer at
  a time and place set in the notice; or
               (2)  complaint of an interested person, after the
  guardian has been cited by personal service to answer at a time and
  place set in the notice.
         (g)  Sections 361.052 and 404.0035, Estates Code, as amended
  by this section, apply to the estate of a decedent who dies before,
  on, or after the effective date of this Act.
         (h)  Sections 1023.003, 1023.004, 1023.005, and 1203.052,
  Estates Code, as amended by this section, apply to a guardianship
  created before, on, or after the effective date of this Act.
         SECTION 2.  Section 751.052, Estates Code, is amended to
  read as follows:
         Sec. 751.052.  RELATION OF ATTORNEY IN FACT OR AGENT TO
  COURT-APPOINTED GUARDIAN OF ESTATE. (a)  If, after execution of a
  durable power of attorney, a court [of the principal's domicile]
  appoints a:
               (1)  permanent guardian of the estate for a ward who is
  [of] the principal who executed the power of attorney, on the
  qualification of the guardian the powers and authority granted to
  [of] the attorney in fact or agent named in the power of attorney
  are automatically revoked; or
               (2)  temporary guardian of the estate for a ward who is
  the principal who executed the power of attorney, on the
  qualification of the guardian the powers and authority granted to
  the attorney in fact or agent named in the power of attorney are
  automatically suspended for the duration of the guardianship unless
  the court enters an order that:
                     (A)  affirms and states the effectiveness of the
  power of attorney; and
                     (B)  confirms the validity of the appointment of
  the named attorney in fact or agent [terminate on the qualification
  of the guardian of the estate].
         (b)  If the powers and authority of an [The] attorney in fact
  or agent are revoked as provided by Subsection (a), the attorney in
  fact or agent shall:
               (1)  deliver to the guardian of the estate all assets of
  the ward's estate that are in the possession of the attorney in fact
  or agent; and
               (2)  account to the guardian of the estate as the
  attorney in fact or agent would account to the principal if the
  principal had terminated the powers of the attorney in fact or
  agent.
         [(b)     If, after execution of a durable power of attorney, a
  court of the principal's domicile appoints a temporary guardian of
  the estate of the principal, the court may suspend the powers of the
  attorney in fact or agent on the qualification of the temporary
  guardian of the estate until the date the term of the temporary
  guardian expires.   This subsection may not be construed to prohibit
  the application for or issuance of a temporary restraining order
  under applicable law.]
         SECTION 3.  Section 751.054(a), Estates Code, is amended to
  read as follows:
         (a)  The revocation by, the death of, or the qualification of
  a temporary or permanent guardian of the estate of a principal who
  has executed a durable power of attorney or the removal of an
  attorney in fact or agent under Chapter 753 does not revoke,
  suspend, or terminate the agency as to the attorney in fact, agent,
  or other person who acts in good faith under or in reliance on the
  power without actual knowledge of the termination or suspension, as
  applicable, of the power by:
               (1)  the revocation;
               (2)  the principal's death; [or]
               (3)  the qualification of a temporary or permanent
  guardian of the estate of the principal; or
               (4)  the attorney in fact's or agent's removal.
         SECTION 4.  Section 751.055(a), Estates Code, is amended to
  read as follows:
         (a)  As to an act undertaken in good-faith reliance on a
  durable power of attorney, an affidavit executed by the attorney in
  fact or agent under the durable power of attorney stating that the
  attorney in fact or agent did not have, at the time the power was
  exercised, actual knowledge of the termination or suspension of the
  power, as applicable, by revocation, the principal's death, the
  principal's divorce or the annulment of the principal's marriage if
  the attorney in fact or agent was the principal's spouse, [or] the
  qualification of a temporary or permanent guardian of the estate of
  the principal, or the attorney in fact's or agent's removal, is
  conclusive proof as between the attorney in fact or agent and a
  person other than the principal or the principal's personal
  representative dealing with the attorney in fact or agent of the
  nonrevocation, nonsuspension, or nontermination of the power at
  that time.
         SECTION 5.  Section 752.051, Estates Code, is amended to
  read as follows:
         Sec. 752.051.  FORM. The following form is known as a
  "statutory durable power of attorney":
  STATUTORY DURABLE POWER OF ATTORNEY
  NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING.  
  THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, SUBTITLE P,
  TITLE 2, ESTATES CODE. IF YOU HAVE ANY QUESTIONS ABOUT THESE
  POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT
  AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS
  FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO
  DO SO.
         You should select someone you trust to serve as your agent
  (attorney in fact). Unless you specify otherwise, generally the
  agent's (attorney in fact's) authority will continue until:
               (1)  you die or revoke the power of attorney;
               (2)  your agent (attorney in fact) resigns, is removed
  by court order, or is unable to act for you; or
               (3)  a guardian is appointed for your estate.
         I, __________ (insert your name and address), appoint
  __________ (insert the name and address of the person appointed) as
  my agent (attorney in fact) to act for me in any lawful way with
  respect to all of the following powers that I have initialed below.
         TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN
  FRONT OF (N) AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS
  LISTED IN (A) THROUGH (M).
         TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE
  POWER YOU ARE GRANTING.
         TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE
  POWER. YOU MAY, BUT DO NOT NEED TO, CROSS OUT EACH POWER WITHHELD.
         ____ (A) Real property transactions;
         ____ (B) Tangible personal property transactions;
         ____ (C) Stock and bond transactions;
         ____ (D) Commodity and option transactions;
         ____ (E) Banking and other financial institution
  transactions;
         ____ (F) Business operating transactions;
         ____ (G) Insurance and annuity transactions;
         ____ (H) Estate, trust, and other beneficiary transactions;
         ____ (I) Claims and litigation;
         ____ (J) Personal and family maintenance;
         ____ (K) Benefits from social security, Medicare, Medicaid,
  or other governmental programs or civil or military service;
         ____ (L) Retirement plan transactions;
         ____ (M) Tax matters;
         ____ (N) ALL OF THE POWERS LISTED IN (A) THROUGH (M). YOU DO
  NOT HAVE TO INITIAL THE LINE IN FRONT OF ANY OTHER POWER IF YOU
  INITIAL LINE (N).
  SPECIAL INSTRUCTIONS:
         Special instructions applicable to gifts (initial in front of
  the following sentence to have it apply):
  ____ I grant my agent (attorney in fact) the power to apply my
  property to make gifts outright to or for the benefit of a person,
  including by the exercise of a presently exercisable general power
  of appointment held by me, except that the amount of a gift to an
  individual may not exceed the amount of annual exclusions allowed
  from the federal gift tax for the calendar year of the gift.
         ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
  LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
  ________________________________________________________________
  ________________________________________________________________
  ________________________________________________________________
  ________________________________________________________________
  ________________________________________________________________
  ________________________________________________________________
  ________________________________________________________________
  ________________________________________________________________
  ________________________________________________________________
         UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS
  EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
         CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE
  ALTERNATIVE NOT CHOSEN:
         (A)  This power of attorney is not affected by my subsequent
  disability or incapacity.
         (B)  This power of attorney becomes effective upon my
  disability or incapacity.
         YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY
  IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
         IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT
  YOU CHOSE ALTERNATIVE (A).
         If Alternative (B) is chosen and a definition of my
  disability or incapacity is not contained in this power of
  attorney, I shall be considered disabled or incapacitated for
  purposes of this power of attorney if a physician certifies in
  writing at a date later than the date this power of attorney is
  executed that, based on the physician's medical examination of me,
  I am mentally incapable of managing my financial affairs. I
  authorize the physician who examines me for this purpose to
  disclose my physical or mental condition to another person for
  purposes of this power of attorney. A third party who accepts this
  power of attorney is fully protected from any action taken under
  this power of attorney that is based on the determination made by a
  physician of my disability or incapacity.
         I agree that any third party who receives a copy of this
  document may act under it. Revocation of the durable power of
  attorney is not effective as to a third party until the third party
  receives actual notice of the revocation. I agree to indemnify the
  third party for any claims that arise against the third party
  because of reliance on this power of attorney.
         If any agent named by me dies, becomes legally disabled,
  resigns, [or] refuses to act, or is removed by court order, I name
  the following (each to act alone and successively, in the order
  named) as successor(s) to that agent: __________.
         Signed this ______ day of __________, _____________
         ___________________________
                                         (your signature)
  State of _______________________
  County of ______________________
  This document was acknowledged before me on ____________(date) by
  ________________________
  (name of principal)
         ______________________________
         (signature of notarial officer)
  (Seal, if any, of notary) ________________________________________
       (printed name)
         My commission expires: ______________
  IMPORTANT INFORMATION FOR AGENT (ATTORNEY IN FACT)
  Agent's Duties
         When you accept the authority granted under this power of
  attorney, you establish a "fiduciary" relationship with the
  principal. This is a special legal relationship that imposes on you
  legal duties that continue until you resign or the power of attorney
  is terminated, suspended, or revoked by the principal or by
  operation of law. A fiduciary duty generally includes the duty to:
               (1)  act in good faith;
               (2)  do nothing beyond the authority granted in this
  power of attorney;
               (3)  act loyally for the principal's benefit;
               (4)  avoid conflicts that would impair your ability to
  act in the principal's best interest; and
               (5)  disclose your identity as an agent or attorney in
  fact when you act for the principal by writing or printing the name
  of the principal and signing your own name as "agent" or "attorney
  in fact" in the following manner:
         (Principal's Name) by (Your Signature) as Agent (or as
  Attorney in Fact)
         In addition, the Durable Power of Attorney Act (Subtitle P,
  Title 2, Estates Code) requires you to:
               (1)  maintain records of each action taken or decision
  made on behalf of the principal;
               (2)  maintain all records until delivered to the
  principal, released by the principal, or discharged by a court; and
               (3)  if requested by the principal, provide an
  accounting to the principal that, unless otherwise directed by the
  principal or otherwise provided in the Special Instructions, must
  include:
                     (A)  the property belonging to the principal that
  has come to your knowledge or into your possession;
                     (B)  each action taken or decision made by you as
  agent or attorney in fact;
                     (C)  a complete account of receipts,
  disbursements, and other actions of you as agent or attorney in fact
  that includes the source and nature of each receipt, disbursement,
  or action, with receipts of principal and income shown separately;
                     (D)  a listing of all property over which you have
  exercised control that includes an adequate description of each
  asset and the asset's current value, if known to you;
                     (E)  the cash balance on hand and the name and
  location of the depository at which the cash balance is kept;
                     (F)  each known liability;
                     (G)  any other information and facts known to you
  as necessary for a full and definite understanding of the exact
  condition of the property belonging to the principal; and
                     (H)  all documentation regarding the principal's
  property.
  Termination of Agent's Authority
         You must stop acting on behalf of the principal if you learn
  of any event that terminates or suspends this power of attorney or
  your authority under this power of attorney. An event that
  terminates this power of attorney or your authority to act under
  this power of attorney includes:
               (1)  the principal's death;
               (2)  the principal's revocation of this power of
  attorney or your authority;
               (3)  the occurrence of a termination event stated in
  this power of attorney;
               (4)  if you are married to the principal, the
  dissolution of your marriage by court decree of divorce or
  annulment;
               (5)  the appointment and qualification of a permanent
  guardian of the principal's estate unless a court order provides
  otherwise; or
               (6)  if ordered by a court, your removal as agent
  (attorney in fact) under this power of attorney. An event that
  suspends this power of attorney or your authority to act under this
  power of attorney is the appointment and qualification of a
  temporary guardian unless a court order provides otherwise [if
  ordered by a court, the suspension of this power of attorney on the
  appointment and qualification of a temporary guardian until the
  date the term of the temporary guardian expires].
  Liability of Agent
         The authority granted to you under this power of attorney is
  specified in the Durable Power of Attorney Act (Subtitle P, Title 2,
  Estates Code). If you violate the Durable Power of Attorney Act or
  act beyond the authority granted, you may be liable for any damages
  caused by the violation or subject to prosecution for
  misapplication of property by a fiduciary under Chapter 32 of the
  Texas Penal Code.
         THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER
  THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL
  RESPONSIBILITIES OF AN AGENT.
         SECTION 6.  Subtitle P, Title 2, Estates Code, is amended by
  adding Chapter 753 to read as follows:
  CHAPTER 753.  REMOVAL OF ATTORNEY IN FACT OR AGENT
         Sec. 753.001.  PROCEDURE FOR REMOVAL. (a)  In this section,
  "person interested," notwithstanding Section 22.018, has the
  meaning assigned by Section 1002.018.
         (b)  The following persons may file a petition under this
  section:
               (1)  any person named as a successor attorney in fact or
  agent in a durable power of attorney; or
               (2)  if the person with respect to whom a guardianship
  proceeding has been commenced is a principal who has executed a
  durable power of attorney, any person interested in the
  guardianship proceeding, including an attorney ad litem or guardian
  ad litem.
         (c)  On the petition of a person described by Subsection (b),
  a probate court, after a hearing, may enter an order:
               (1)  removing a person named and serving as an attorney
  in fact or agent under a durable power of attorney;
               (2)  authorizing the appointment of a successor
  attorney in fact or agent who is named in the durable power of
  attorney if the court finds that the successor attorney in fact or
  agent is willing to accept the authority granted under the power of
  attorney; and
               (3)  if compensation is allowed by the terms of the
  durable power of attorney, denying all or part of the removed
  attorney in fact's or agent's compensation.
         (d)  A court may enter an order under Subsection (c) if the
  court finds:
               (1)  that the attorney in fact or agent has breached the
  attorney in fact's or agent's fiduciary duties to the principal;
               (2)  that the attorney in fact or agent has materially
  violated or attempted to violate the terms of the durable power of
  attorney and the violation or attempted violation results in a
  material financial loss to the principal;
               (3)  that the attorney in fact or agent is
  incapacitated or is otherwise incapable of properly performing the
  attorney in fact's or agent's duties; or
               (4)  that the attorney in fact or agent has failed to
  make an accounting:
                     (A)  that is required by Section 751.104 within
  the period prescribed by Section 751.105, by other law, or by the
  terms of the durable power of attorney; or
                     (B)  as ordered by the court.
         Sec. 753.002.  NOTICE TO THIRD PARTIES. Not later than the
  21st day after the date the court enters an order removing an
  attorney in fact or agent and authorizing the appointment of a
  successor under Section 753.001, the successor attorney in fact or
  agent shall provide actual notice of the order to each third party
  that the attorney in fact or agent has reason to believe relied on
  or may rely on the durable power of attorney.
         SECTION 7.  Section 1055.003, Estates Code, is amended by
  amending Subsection (a) and adding Subsection (d) to read as
  follows:
         (a)  Notwithstanding the Texas Rules of Civil Procedure and
  except as provided by Subsection (d), an interested person may
  intervene in a guardianship proceeding only by filing a timely
  motion to intervene that is served on the parties.
         (d)  A person who is entitled to receive notice under Section
  1051.104 is not required to file a motion under this section to
  intervene in a guardianship proceeding.
         SECTION 8.  Section 1101.002, Estates Code, is amended to
  read as follows:
         Sec. 1101.002.  CONTENTS OF APPLICATION; CONFIDENTIALITY OF
  CERTAIN ADDRESSES. An application filed under Section 1101.001 may
  omit the address of a person named in the application if:
               (1)  the application states that the person is or was
  protected by a protective order issued under Chapter 85, Family
  Code;
               (2)  a copy of the protective order is attached to the
  application as an exhibit;
               (3)  the application states the county in which the
  person resides;
               (4)  the application indicates the place where notice
  to or the issuance and service of citation on the person may be made
  or sent; and
               (5)  the application is accompanied by a request for an
  order under Section 1051.201 specifying the manner of issuance,
  service, and return of citation or notice on the person.
         SECTION 9.  Section 1151.051(d), Estates Code, is amended to
  read as follows:
         (d)  Notwithstanding Subsection (c)(4), a guardian of the
  person of a ward has the power to personally transport the ward or
  to direct the ward's transport by emergency medical services or
  other means to an inpatient mental health facility for a
  preliminary examination in accordance with Subchapters A and C,
  Chapter 573, Health and Safety Code. The guardian shall
  immediately provide written notice to the court that granted the
  guardianship as required by Section 573.004, Health and Safety
  Code, of the filing of an application under that section.
         SECTION 10.  Section 1357.052, Estates Code, is amended to
  read as follows:
         Sec. 1357.052.  AUTHORITY OF SUPPORTER; NATURE OF
  RELATIONSHIP. (a)  A supporter may exercise the authority granted
  to the supporter in the supported decision-making agreement.
         (b)  The supporter owes to the adult with a disability
  fiduciary duties as listed in the form provided by Section
  1357.056(a), regardless of whether that form is used for the
  supported decision-making agreement.
         (c)  The relationship between an adult with a disability and
  the supporter with whom the adult enters into a supported
  decision-making agreement:
               (1)  is one of trust and confidence; and
               (2)  does not undermine the decision-making authority
  of the adult.
         SECTION 11.  Subchapter B, Chapter 1357, Estates Code, is
  amended by adding Section 1357.0525 to read as follows:
         Sec. 1357.0525.  DESIGNATION OF ALTERNATE SUPPORTER IN
  CERTAIN CIRCUMSTANCES. In order to prevent a conflict of interest,
  if a determination is made by an adult with a disability that the
  supporter with whom the adult entered into a supported
  decision-making agreement is the most appropriate person to provide
  to the adult supports and services for which the supporter will be
  compensated, the adult may amend the supported decision-making
  agreement to designate an alternate person to act as the adult's
  supporter for the limited purpose of participating in
  person-centered planning as it relates to the provision of those
  supports and services.
         SECTION 12.  Section 1357.053(b), Estates Code, is amended
  to read as follows:
         (b)  The supported decision-making agreement is terminated
  if:
               (1)  the Department of Family and Protective Services
  finds that the adult with a disability has been abused, neglected,
  or exploited by the supporter; [or]
               (2)  the supporter is found criminally liable for
  conduct described by Subdivision (1); or
               (3)  a temporary or permanent guardian of the person or
  estate appointed for the adult with a disability qualifies.
         SECTION 13.  Section 1357.056(a), Estates Code, is amended
  to read as follows:
         (a)  Subject to Subsection (b), a supported decision-making
  agreement is valid only if it is in substantially the following
  form:
  SUPPORTED DECISION-MAKING AGREEMENT
  Important Information For Supporter:  Duties
         When you agree to provide support to an adult with a
  disability under this supported decision-making agreement, you
  have a duty to:
               (1)  act in good faith;
               (2)  act within the authority granted in this
  agreement;
               (3)  act loyally and without self-interest; and
               (4)  avoid conflicts of interest.
  Appointment of Supporter
         I, (insert your name), make this agreement of my own free
  will.
         I agree and designate that:
         Name:
         Address:
         Phone Number:
         E-mail Address:
  is my supporter.  My supporter may help me with making everyday life
  decisions relating to the following:
         Y/N     obtaining food, clothing, and shelter
         Y/N     taking care of my physical health
         Y/N     managing my financial affairs.
         My supporter is not allowed to make decisions for me.  To help
  me with my decisions, my supporter may:
         1.  Help me access, collect, or obtain information that is
  relevant to a decision, including medical, psychological,
  financial, educational, or treatment records;
         2.  Help me understand my options so I can make an informed
  decision; or
         3.  Help me communicate my decision to appropriate persons.
         Y/N     A release allowing my supporter to see protected
  health information under the Health Insurance Portability and
  Accountability Act of 1996 (Pub. L. No. 104-191) is attached.
         Y/N     A release allowing my supporter to see educational
  records under the Family Educational Rights and Privacy Act of 1974
  (20 U.S.C. Section 1232g) is attached.
  Effective Date of Supported Decision-Making Agreement
         This supported decision-making agreement is effective
  immediately and will continue until (insert date) or until the
  agreement is terminated by my supporter or me or by operation of
  law.
         Signed this ______ day of _________, 20___
  Consent of Supporter
         I, (name of supporter), consent to act as a supporter under
  this agreement.
         
         (signature of supporter)(printed name of supporter)    
  Signature
         
         (my signature)(my printed name)        
         
         (witness 1 signature)(printed name of witness 1)  
         
         (witness 2 signature)(printed name of witness 2)  
         State of
         County of
         This document was acknowledged before me
         on _______________________________ (date)
  by _______________________________ and _______________________
  (name of adult with a disability)(name of supporter)    
                                         
                                         (signature of notarial officer)
  (Seal, if any, of notary)
                                  (printed name)
                                  My commission expires:
  WARNING:  PROTECTION FOR THE ADULT WITH A DISABILITY
         IF A PERSON WHO RECEIVES A COPY OF THIS AGREEMENT OR IS AWARE
  OF THE EXISTENCE OF THIS AGREEMENT HAS CAUSE TO BELIEVE THAT THE
  ADULT WITH A DISABILITY IS BEING ABUSED, NEGLECTED, OR EXPLOITED BY
  THE SUPPORTER, THE PERSON SHALL REPORT THE ALLEGED ABUSE, NEGLECT,
  OR EXPLOITATION TO THE DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
  BY CALLING THE ABUSE HOTLINE AT 1-800-252-5400 OR ONLINE AT
  WWW.TXABUSEHOTLINE.ORG.
         SECTION 14.  (a)  Sections 751.052, 751.054(a), and
  751.055(a), Estates Code, as amended by this Act, and Chapter 753,
  Estates Code, as added by this Act, apply to a durable power of
  attorney, including a statutory durable power of attorney, executed
  before, on, or after the effective date of this Act.
         (b)  Section 752.051, Estates Code, as amended by this Act,
  applies to a statutory durable power of attorney executed on or
  after the effective date of this Act.  A statutory durable power of
  attorney executed before the effective date of this Act is governed
  by the law as it existed on the date the statutory durable power of
  attorney was executed, and the former law is continued in effect for
  that purpose.
         (c)  Section 1055.003, Estates Code, as amended by this Act,
  applies to a guardianship proceeding that is pending or commenced
  on or after the effective date of this Act.
         (d)  Section 1101.002, Estates Code, as amended by this Act,
  applies to an application for a guardianship filed on or after the
  effective date of this Act.
         (e)  Sections 1357.052 and 1357.053(b), Estates Code, as
  amended by this Act, and Section 1357.0525, Estates Code, as added
  by this Act, apply to a supported decision-making agreement entered
  into before, on, or after the effective date of this Act.
         (f)  Section 1357.056(a), Estates Code, as amended by this
  Act, applies to a supported decision-making agreement entered into
  on or after the effective date of this Act.  A supported
  decision-making agreement entered into before the effective date of
  this Act is governed by the law as it existed on the date the
  supported decision-making agreement was entered into, and the
  former law is continued in effect for that purpose.
         SECTION 15.  This Act takes effect September 1, 2017.
 
 
 
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
         I hereby certify that S.B. No. 39 passed the Senate on
  April 5, 2017, by the following vote: Yeas 30, Nays 0; and that the
  Senate concurred in House amendment on May 25, 2017, by the
  following vote: Yeas 31, Nays 0.
 
 
  ______________________________
  Secretary of the Senate    
 
         I hereby certify that S.B. No. 39 passed the House, with
  amendment, on May 22, 2017, by the following vote: Yeas 144,
  Nays 0, two present not voting.
 
 
  ______________________________
  Chief Clerk of the House   
 
 
 
  Approved:
 
  ______________________________ 
              Date
 
 
  ______________________________ 
            Governor