This website will be unavailable from Friday, April 26, 2024 at 6:00 p.m. through Monday, April 29, 2024 at 7:00 a.m. due to data center maintenance.

 
 
  H.B. No. 3080
 
 
 
 
AN ACT
  relating to guardianships and other matters relating to
  incapacitated persons.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 665, Texas Probate Code, is amended by
  amending Subsections (a), (b), (c), and (d) and adding Subsections
  (a-1) and (d-1) to read as follows:
         (a)  The court may authorize compensation for a guardian or a
  temporary guardian serving as a guardian of the person alone from
  available funds of the ward's estate or other funds available for
  that purpose. The court may [shall] set the compensation in an
  amount not exceeding five percent of the ward's gross income.
         (a-1)  In determining whether to authorize compensation for
  a guardian under this section, the court shall consider the ward's
  monthly income from all sources and whether the ward receives
  medical assistance under the state Medicaid program.
         (b)  The guardian or temporary guardian of an estate is
  entitled to reasonable compensation on application to the court at
  the time the court approves any annual accounting or final
  accounting filed by the guardian or temporary guardian under this
  chapter. A fee of five percent of the gross income of the ward's
  estate and five percent of all money paid out of the estate, subject
  to the award of an additional amount under Subsection (c) of this
  section following a review under Subsection (c)(1) of this section,
  is considered reasonable under this subsection if the court finds
  that the guardian or temporary guardian has taken care of and
  managed the estate in compliance with the standards of this
  chapter.
         (c)  On application of an interested person or on its own
  motion, the court may:
               (1)  review and modify the amount of compensation
  authorized under Subsection (a) or [Subsection] (b) of this section
  if the court finds that the amount is unreasonably low when
  considering the services rendered as guardian or temporary
  guardian; and
               (2)  authorize compensation for the guardian or
  temporary guardian in an estimated amount the court finds
  reasonable that is to be paid on a quarterly basis before the
  guardian or temporary guardian files an annual or final accounting
  if the court finds that delaying the payment of compensation until
  the guardian or temporary guardian files an accounting would create
  a hardship for the guardian or temporary guardian.
         (d)  A finding of unreasonably low compensation may not be
  established under Subsection (c) of this section solely because the
  amount of compensation is less than the usual and customary charges
  of the person or entity serving as guardian or temporary guardian.
  A court that authorizes payment of estimated quarterly compensation
  under Subsection (c) of this section may later reduce or eliminate
  the guardian's or temporary guardian's compensation if, on review
  of an annual or final accounting or otherwise, the court finds that
  the guardian or temporary guardian:
               (1)  received compensation in excess of the amount
  permitted under this section;
               (2)  has not adequately performed the duties required
  of a guardian or temporary guardian under this chapter; or
               (3)  has been removed for cause.
         (d-1)  If a court reduces or eliminates a guardian's or
  temporary guardian's compensation as provided by Subsection (d) of
  this section, the guardian or temporary guardian and the surety on
  the guardian's or temporary guardian's bond are liable to the
  guardianship estate for any excess compensation received.
         SECTION 2.  The heading to Section 665B, Texas Probate Code,
  is amended to read as follows:
         Sec. 665B. COMPENSATION OF ATTORNEY REPRESENTING APPLICANT 
  [CERTAIN ATTORNEYS].
         SECTION 3.  Section 665B(a), Texas Probate Code, is amended
  to read as follows:
         (a)  A court that creates a guardianship or creates a
  management trust under Section 867 of this code for a ward under
  this chapter, on request of a person who filed an application to be
  appointed guardian of the proposed ward, an application [or] for
  the appointment of another suitable person as guardian of the
  proposed ward, or an application for the creation of the management
  trust, may authorize compensation of an attorney who represents the
  person who filed the application at the application hearing,
  regardless of whether the person is appointed the ward's guardian
  or whether a management trust is created, from:
               (1)  available funds of the ward's estate or management
  trust, if created; or
               (2)  the county treasury if:
                     (A)  the ward's estate or, if created, management
  trust, is insufficient to pay for the services provided by the
  attorney; and
                     (B)  funds in the county treasury are budgeted for
  that purpose.
         SECTION 4.  Subpart H, Part 2, Chapter XIII, Texas Probate
  Code, is amended by adding Section 665D to read as follows:
         Sec. 665D.  COMPENSATION AND PAYMENT OF ATTORNEY'S FEES OF
  ATTORNEY SERVING AS GUARDIAN. (a) Notwithstanding any other
  provision of this subpart, an attorney who serves as guardian and
  who also provides legal services in connection with the
  guardianship is not entitled to compensation for the guardianship
  services or payment of attorney's fees for the legal services from
  the ward's estate or other funds available for that purpose unless
  the attorney files with the court a detailed description of the
  services performed that identifies which of the services provided
  were guardianship services and which were legal services.
         (b)  An attorney described by Subsection (a) of this section
  is not entitled to payment of attorney's fees for guardianship
  services that are not legal services.
         (c)  The court shall set the compensation of an attorney
  described by Subsection (a) of this section for the performance of
  guardianship services in accordance with Section 665 of this code.
  The court shall set attorney's fees for an attorney described by
  Subsection (a) of this section for legal services provided in
  accordance with Sections 665A, 665B, and 666 of this code.
         SECTION 5.  Section 677A, Texas Probate Code, is amended by
  amending Subsection (g) and adding Subsections (i) and (j) to read
  as follows:
         (g)  A declaration and affidavit may be in any form adequate
  to clearly indicate the declarant's intention to designate a
  guardian for the declarant's child. The following form may, but
  need not, be used:
  DECLARATION OF APPOINTMENT OF GUARDIAN FOR MY CHILDREN IN THE EVENT
  OF MY DEATH OR INCAPACITY
         I, __________, make this Declaration to appoint as guardian
  for my child or children, listed as follows, in the event of my
  death or incapacity:
  ____________________________________________________________
  ____________________________________________________________
  ____________________________________________________________
  (add blanks as appropriate)
         I designate __________ to serve as guardian of the person of
  my (child or children), __________ as first alternate guardian of
  the person of my (child or children), __________ as second
  alternate guardian of the person of my (child or children), and
  __________ as third alternate guardian of the person of my (child or
  children).
         I direct that the guardian of the person of my (child or
  children) serve (with or without) bond.
         (If applicable) I designate __________ to serve as guardian
  of the estate of my (child or children), __________ as first
  alternate guardian of the estate of my (child or children),
  __________ as second alternate guardian of the estate of my (child
  or children), and __________ as third alternate guardian of the
  estate of my (child or children).
         If any guardian or alternate guardian dies, does not qualify,
  or resigns, the next named alternate guardian becomes guardian of
  my (child or children).
         Signed this __________ day of __________, 20__.
 
  ______________________________
  Declarant
 
  ____________________________________________________________
  Witness                            Witness
         SELF-PROVING AFFIDAVIT
         Before me, the undersigned authority, on this date personally
  appeared __________, the declarant, and __________ and __________
  as witnesses, and all being duly sworn, the declarant said that the
  above instrument was his or her Declaration of Appointment of
  Guardian for the Declarant's Children in the Event of Declarant's
  Death or Incapacity and that the declarant had made and executed it
  for the purposes expressed in the declaration. The witnesses
  declared to me that they are each 14 years of age or older, that they
  saw the declarant sign the declaration, that they signed the
  declaration as witnesses, and that the declarant appeared to them
  to be of sound mind.
 
  ______________________________
  Declarant
 
  ____________________________________________________________
  Affiant                            Affiant
         Subscribed and sworn to before me by __________, the above
  named declarant, and ___________________ (names of affiants) 
  affiants, on this ___ day of __________, 20__.
                                             ___________________________
                                             Notary Public  in and for the
                                             State of Texas
                                             My Commission expires:
                                             ___________________________
         (i)  As an alternative to the self-proving affidavit
  authorized by Subsection (g) of this section, a declaration of
  appointment of a guardian for the declarant's children in the event
  of the declarant's death or incapacity may be simultaneously
  executed, attested, and made self-proved by including the following
  in substantially the same form and with substantially the same
  contents:
         I, _________________________, as declarant, after being duly
  sworn, declare to the undersigned witnesses and to the undersigned
  authority that this instrument is my Declaration of Appointment of
  Guardian for My Children in the Event of My Death or Incapacity, and
  that I have made and executed it for the purposes expressed in the
  declaration. I now sign this declaration in the presence of the
  attesting witnesses and the undersigned authority on this ____ day
  of ________, 20__.
  _____________________________
                                                    Declarant
         The undersigned, _____________________ and
  ___________________, each being 14 years of age or older, after
  being duly sworn, declare to the declarant and to the undersigned
  authority that the declarant declared to us that this instrument is
  the declarant's Declaration of Appointment of Guardian for the
  Declarant's Children in the Event of Declarant's Death or
  Incapacity and that the declarant executed it for the purposes
  expressed in the declaration. The declarant then signed this
  declaration and we believe the declarant to be of sound mind. We now
  sign our names as attesting witnesses on this _____ day of
  ___________, 20___.
  _____________________________
                                                   Witness
  _____________________________
                                                   Witness
         Subscribed and sworn to before me by the above named
  declarant, and affiants, this ____ day of __________________, 20__.
  ___________________________________________
                           Notary Public in and for the State of Texas
                           My Commission Expires:________________
         (j)  A declaration that is executed as provided by Subsection
  (i) of this section is considered self-proved to the same extent a
  declaration executed with a self-proving affidavit under
  Subsection (g) of this section is considered self-proved.
         SECTION 6.  Section 679, Texas Probate Code, is amended by
  amending Subsection (i) and adding Subsections (k) and (l) to read
  as follows:
         (i)  A declaration and affidavit may be in any form adequate
  to clearly indicate the declarant's intention to designate a
  guardian. The following form may, but need not, be used:
  DECLARATION OF GUARDIAN IN THE EVENT OF LATER INCAPACITY OR NEED OF
  GUARDIAN
         I, __________, make this Declaration of Guardian, to operate
  if the need for a guardian for me later arises.
         1. I designate __________ to serve as guardian of my person,
  __________ as first alternate guardian of my person, __________ as
  second alternate guardian of my person, and __________ as third
  alternate guardian of my person.
         2. I designate __________ to serve as guardian of my estate,
  __________ as first alternate guardian of my estate, __________ as
  second alternate guardian of my estate, and __________ as third
  alternate guardian of my estate.
         3. If any guardian or alternate guardian dies, does not
  qualify, or resigns, the next named alternate guardian becomes my
  guardian.
         4. I expressly disqualify the following persons from serving
  as guardian of my person: __________, __________, and __________.
         5. I expressly disqualify the following persons from serving
  as guardian of my estate: __________, __________, and __________.
         Signed this ___ day of __________, 20__.
 
  ______________________________
  Declarant
 
  ____________________________________________________________
  Witness                            Witness
         SELF-PROVING AFFIDAVIT
         Before me, the undersigned authority, on this date personally
  appeared __________, the declarant, and ____________ and
  ____________ as witnesses, and all being duly sworn, the declarant
  said that the above instrument was his or her Declaration of
  Guardian and that the declarant had made and executed it for the
  purposes expressed in the declaration. The witnesses declared to
  me that they are each 14 years of age or older, that they saw the
  declarant sign the declaration, that they signed the declaration as
  witnesses, and that the declarant appeared to them to be of sound
  mind.
 
  ______________________________
  Declarant
 
  ____________________________________________________________
  Affiant                            Affiant
         Subscribed and sworn to before me by the above named
  declarant and affiants on this ____ day of __________, 20__.
                                             ___________________________
                                             Notary Public  in and for the
                                             State of Texas
                                             My Commission expires:
                                             ___________________________
         (k)  As an alternative to the self-proving affidavit 
  authorized by Subsection (i) of this section, a Declaration of
  Guardian in the Event of Later Incapacity or Need of Guardian may be
  simultaneously executed, attested, and made self-proved by
  including the following in substantially the same form and with
  substantially the same contents:
         I, _________________________, as declarant, after being duly
  sworn, declare to the undersigned witnesses and to the undersigned
  authority that this instrument is my Declaration of Guardian in the
  Event of Later Incapacity or Need of Guardian, and that I have made
  and executed it for the purposes expressed in the declaration. I now
  sign this declaration in the presence of the attesting witnesses
  and the undersigned authority on this ____ day of ________, 20__.
  _____________________________
                                                   Declarant
         The undersigned, _____________________ and
  ___________________, each being 14 years of age or older, after
  being duly sworn, declare to the declarant and to the undersigned
  authority that the declarant declared to us that this instrument is
  the declarant's Declaration of Guardian in the Event of Later
  Incapacity or Need of Guardian and that the declarant executed it
  for the purposes expressed in the declaration. The declarant then
  signed this declaration and we believe the declarant to be of sound
  mind. We now sign our names as attesting witnesses on this _____ day
  of ___________, 20___.
 
  _____________________________
                                                    Witness
 
  _____________________________
                                                    Witness
         Subscribed and sworn to before me by the above named
  declarant, and affiants, this ____ day of __________________, 20__.
  ___________________________________________
                           Notary Public in and for the State of Texas
                           My Commission Expires:___________________
         (l)  A declaration that is executed as provided by Subsection
  (k) of this section is considered self-proved to the same extent a
  declaration executed with a self-proving affidavit under
  Subsection (i) of this section is considered self-proved.
         SECTION 7.  Section 767(b), Texas Probate Code, is amended
  to read as follows:
         (b)  Notwithstanding Subsection (a)(4) of this section, 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.
         SECTION 8.  Sections 867(b-3), (c), (d), and (e), Texas
  Probate Code, are amended to read as follows:
         (b-3)  The court shall conduct a hearing to determine
  incapacity under Subsection (b-1) of this section using the same
  procedures and evidentiary standards as required in a hearing for
  the appointment of a guardian for a proposed ward. The court shall
  appoint an attorney ad litem and, if necessary, may appoint a
  guardian ad litem, to represent the interests of the alleged
  incapacitated person in the proceeding.
         (c)  Subject to Subsection (d) of this section, [If the value
  of the trust's principal is $50,000 or less, the court may appoint a
  person other than a financial institution to serve as trustee of the
  trust only] if the court finds that it is [the appointment to be] in
  the ward's or incapacitated person's best interests, the court may
  appoint a person or entity that meets the requirements of
  Subsection (e) of this section to serve as trustee of the trust
  instead of appointing a financial institution to serve in that
  capacity.
         (d)  If the value of the trust's principal is more than
  $150,000 [$50,000], the court may appoint a person or entity other
  than a financial institution in accordance with Subsection (c) of
  this section to serve as trustee of the trust only if the court, in
  addition to the finding required by that subsection, finds that the
  applicant for the creation of the trust, after the exercise of due
  diligence, has been unable to find a[:
               [(1)  no] financial institution in the geographic area
  [is] willing to serve as trustee[; and
               [(2)     the appointment is in the ward's or incapacitated
  person's best interests].
         (e)  The following are eligible for appointment as trustee
  under Subsection (c) or (d) of this section:
               (1)  an individual, including an individual who is
  certified as a private professional guardian;
               (2)  a nonprofit corporation qualified to serve as a
  guardian; and
               (3)  a guardianship program [Before making a finding
  that there is no financial institution willing to serve as trustee
  under Subsection (d)(1) of this section, the court must check any
  list of corporate fiduciaries located in this state that is
  maintained at the office of the presiding judge of the statutory
  probate courts or at the principal office of the Texas Bankers
  Association].
         SECTION 9.  Section 868(a), Texas Probate Code, is amended
  to read as follows:
         (a)  Except as provided by Subsection (d) of this section, a
  trust created under Section 867 of this code must provide that:
               (1)  the ward or incapacitated person is the sole
  beneficiary of the trust;
               (2)  the trustee may disburse an amount of the trust's
  principal or income as the trustee determines is necessary to
  expend for the health, education, support, or maintenance of the
  ward or incapacitated person;
               (3)  the income of the trust that the trustee does not
  disburse under Subdivision (2) of this subsection must be added to
  the principal of the trust;
               (4)  if the trustee is a corporate fiduciary, the
  trustee serves without giving a bond; and
               (5)  the trustee, [on annual application to the court
  and] subject to the court's approval, is entitled to receive
  reasonable compensation for services that the trustee provided to
  the ward or incapacitated person as the ward's or incapacitated
  person's trustee that is:
                     (A)  to be paid from the trust's income,
  principal, or both; and
                     (B)  determined, paid, reduced, and eliminated in
  the same manner as compensation of a guardian of an estate under
  Section 665 of this code.
         SECTION 10.  Subpart N, Part 4, Chapter XIII, Texas Probate
  Code, is amended by adding Section 868C to read as follows:
         Sec. 868C.  TRANSFER OF MANAGEMENT TRUST PROPERTY TO POOLED
  TRUST. (a) If the court determines that it is in the ward's or
  incapacitated person's best interests, the court may order the
  transfer of all property in a management trust created under
  Section 867 of this code to a subaccount of a pooled trust
  established in accordance with Subpart I, Part 5, of this chapter.
  The transfer of property from the management trust to the
  subaccount of the pooled trust shall be treated as a continuation of
  the management trust and may not be treated as the establishment of
  a new trust for purposes of 42 U.S.C. Section 1396p(d)(4)(A) or (C)
  or otherwise for purposes of the ward's or incapacitated person's
  eligibility for medical assistance under Chapter 32, Human
  Resources Code.
         (b)  The court may not allow termination of the management
  trust created under Section 867 of this code from which property is
  transferred under this section until all of the property in the
  management trust has been transferred to the subaccount of the
  pooled trust.
         SECTION 11.  Section 870(b), Texas Probate Code, is amended
  to read as follows:
         (b)  If the ward or incapacitated person is not a minor, the
  trust terminates on the date the court determines that continuing
  the trust is no longer in the ward's or incapacitated person's best
  interests, subject to Section 868C(b) of this code, or on the death
  of the ward or incapacitated person.
         SECTION 12.  Section 875(k), Texas Probate Code, is amended
  to read as follows:
         (k)  If an application for a temporary guardianship, for the
  conversion of a temporary guardianship to a permanent guardianship,
  or for a permanent guardianship is challenged or contested, the
  court, on the court's own motion or on the motion of any interested
  party, may appoint a [new] temporary guardian or grant a temporary
  restraining order under Rule 680, Texas Rules of Civil Procedure,
  or both, without issuing additional citation if the court finds
  that the appointment or the issuance of the order is necessary to
  protect the proposed ward or the proposed ward's estate.
         SECTION 13.  Part 5, Chapter XIII, Texas Probate Code, is
  amended by adding Subpart I to read as follows:
  SUBPART I. ESTABLISHMENT OF POOLED TRUST SUBACCOUNTS; TRANSFERS
         Sec. 910.  DEFINITIONS. In this subpart:
               (1)  "Beneficiary" means a minor, a disabled person, or
  any other incapacitated person for whom a subaccount is
  established.
               (2)  "Medical assistance" means benefits and services
  under the medical assistance program administered under Chapter 32,
  Human Resources Code.
               (3)  "Pooled trust" means a trust that meets the
  requirements of 42 U.S.C. Section 1396p(d)(4)(C) for purposes of
  exempting the trust from the applicability of 42 U.S.C. Section
  1396p(d) in determining the eligibility of a person who is disabled
  for medical assistance.
               (4)  "Subaccount" means an account in a pooled trust
  established solely for the benefit of a beneficiary.
         Sec. 911.  APPLICATION. A person interested in the welfare
  of a minor, a disabled person, or any other incapacitated person may
  apply to the court for the establishment of a subaccount for the
  benefit of the minor, disabled person, or other incapacitated
  person as the beneficiary.
         Sec. 912.  APPOINTMENT OF ATTORNEY AD LITEM. The court shall
  appoint an attorney ad litem for a person who is a minor or has a
  mental disability and who is the subject of an application under
  Section 911 of this code. The attorney ad litem is entitled to a
  reasonable fee and reimbursement of expenses to be paid from the
  person's property.
         Sec. 913.  TRANSFER. If the court finds that it is in the
  best interests of a person who is the subject of an application
  under Section 911 of this code, the court may order:
               (1)  the establishment of a subaccount of which the
  person is the beneficiary; and
               (2)  the transfer to the subaccount of any of the
  person's property on hand or accruing to the person.
         Sec. 914.  TERMS OF SUBACCOUNT. Unless the court orders
  otherwise, the terms governing the subaccount must provide that:
               (1)  the subaccount terminates on the earliest of the
  date of:
                     (A)  the beneficiary's 18th birthday, if the
  beneficiary is not disabled on that date and was a minor at the time
  the subaccount was established;
                     (B)  the beneficiary's death; or
                     (C)  an order of the court terminating the
  subaccount; and
               (2)  on termination, any property remaining in the
  beneficiary's subaccount after making any required payments to
  satisfy the amounts of medical assistance reimbursement claims for
  medical assistance provided to the beneficiary under this state's
  medical assistance program and other states' medical assistance
  programs shall be distributed to:
                     (A)  the beneficiary, if on the date of
  termination the beneficiary is living and is not incapacitated;
                     (B)  the beneficiary's guardian, if on the date of
  termination the beneficiary is living and is incapacitated; or
                     (C)  the personal representative of the
  beneficiary's estate, if the beneficiary is deceased on the date of
  termination.
         Sec. 915.  JURISDICTION EXCLUSIVE. Notwithstanding any
  other law, the court that orders the establishment of a subaccount
  for a beneficiary has exclusive jurisdiction of a subsequent
  proceeding or action that relates to both the beneficiary and the
  subaccount, and the proceeding or action may only be brought in that
  court.
         Sec. 916.  FEES AND ACCOUNTING. (a) The manager or trustee
  of a pooled trust may:
               (1)  assess fees against a subaccount of that pooled
  trust established under this subpart in accordance with the
  manager's or trustee's standard fee structure; and
               (2)  pay those fees from the subaccount.
         (b)  If required by the court, the manager or trustee of the
  pooled trust shall file a copy of the annual report of account with
  the court clerk.
         SECTION 14.  (a) Except as otherwise provided by this
  section, the changes in law made by this Act apply to:
               (1)  a guardianship created before, on, or after the
  effective date of this Act; and
               (2)  an application for a guardianship pending on, or
  filed on or after, the effective date of this Act.
         (b)  Sections 665, 665B, and 868, Texas Probate Code, as
  amended by this Act, and Section 665D, Texas Probate Code, as added
  by this Act, apply to the payment, reduction, or elimination of
  compensation for services performed on or after the effective date
  of this Act. Payment, reduction, or elimination of compensation for
  services performed before the effective date of this Act is
  governed by the law in effect on the date the services were
  performed, and the former law is continued in effect for that
  purpose.
         (c)  Sections 867 and 870, Texas Probate Code, as amended by
  this Act, and Section 868C, Texas Probate Code, as added by this
  Act, apply to an application for the creation, modification, or
  termination of a management trust under Subpart N, Part 4, Chapter
  XIII, Texas Probate Code, that is filed on or after the effective
  date of this Act. An application for the creation, modification, or
  termination of a management trust filed before the effective date
  of this Act is governed by the law in effect on the date the
  application was filed, and the former law is continued in effect for
  that purpose.
         (d)  Subpart I, Part 5, Chapter XIII, Texas Probate Code, as
  added by this Act, applies to an application for the establishment
  of a subaccount of a pooled trust that is filed on or after the
  effective date of this Act.
         SECTION 15.  This Act takes effect September 1, 2009.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 3080 was passed by the House on April
  28, 2009, by the following vote:  Yeas 149, Nays 0, 1 present, not
  voting.
 
  ______________________________
  Chief Clerk of the House   
 
 
         I certify that H.B. No. 3080 was passed by the Senate on May
  27, 2009, by the following vote:  Yeas 31, Nays 0.
 
  ______________________________
  Secretary of the Senate    
  APPROVED:  _____________________
                     Date          
   
            _____________________
                   Governor