Bill Text: TX SB1768 | 2019-2020 | 86th Legislature | Introduced

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Bill Title: Relating to guardianships and supports and services for incapacitated persons.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2019-03-14 - Referred to State Affairs [SB1768 Detail]

Download: Texas-2019-SB1768-Introduced.html

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86R6242 CLG-F
By: Zaffirini S.B. No. 1768

A BILL TO BE ENTITLED
AN ACT
relating to guardianships and supports and services for
incapacitated persons.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 22.016, Estates Code, is amended to read
as follows:
Sec. 22.016. INCAPACITATED PERSON. A person is
"incapacitated" if the person:
(1) is a minor;
(2) is an adult who lacks the ability to meet essential
requirements for his or her own physical health, safety, or
self-care or to manage the person's own financial affairs because
the person is unable, due to a physical or mental condition, to
receive and evaluate information or make or communicate decisions,
even with:
(A) appropriate supports and services, including
assistive technology; or
(B) supported decision-making [, because of a
physical or mental condition, is substantially unable to:
[(A) provide food, clothing, or shelter for
himself or herself;
[(B) care for the person's own physical health;
or
[(C) manage the person's own financial affairs];
or
(3) must have a guardian appointed for the person to
receive funds due the person from a governmental source.
SECTION 2. Section 22.033, Estates Code, is amended to read
as follows:
Sec. 22.033. WARD; PERSON WITH A GUARDIAN. "Ward" or
"person with a guardian" means a person for whom a guardian has been
appointed.
SECTION 3. Chapter 1001, Estates Code, is amended by adding
Section 1001.004 to read as follows:
Sec. 1001.004. USE OF PERSON FIRST RESPECTFUL LANGUAGE
INSTEAD OF WARD. (a) The legislature, the Texas Legislative
Council, and other state agencies and entities are directed to
avoid using the term "ward" in any new provision of law and are
directed to replace, as appropriate, that term in any existing law
as that existing law is otherwise amended with the following
preferred terms or phrases or appropriate variations of those terms
or phrases:
(1) "person";
(2) "incapacitated person"; and
(3) "person with a guardian."
(b) A law is not invalid solely because it does not employ
this section's preferred terms or phrases.
SECTION 4. Section 1002.017, Estates Code, is amended to
read as follows:
Sec. 1002.017. INCAPACITATED PERSON. "Incapacitated
person" means:
(1) a minor;
(2) an adult who lacks the ability to meet essential
requirements for his or her own physical health, safety, or
self-care or to manage the person's own financial affairs because
the person is unable, due to a physical or mental condition, to
receive and evaluate information or make or communicate decisions,
even with:
(A) appropriate supports and services, including
assistive technology; or
(B) supported decision-making [, because of a
physical or mental condition, is substantially unable to:
[(A) provide food, clothing, or shelter for
himself or herself;
[(B) care for the person's own physical health;
or
[(C) manage the person's own financial affairs];
or
(3) a person who must have a guardian appointed for the
person to receive funds due the person from a governmental source.
SECTION 5. Section 1002.026, Estates Code, is amended to
read as follows:
Sec. 1002.026. PROPOSED WARD; ALLEGED INCAPACITATED
PERSON. "Proposed ward" or "alleged incapacitated person" means a
person alleged in a guardianship proceeding to be incapacitated.
SECTION 6. Section 1002.030, Estates Code, is amended to
read as follows:
Sec. 1002.030. WARD; PERSON WITH A GUARDIAN. "Ward" or
"person with a guardian" means a person for whom a guardian has been
appointed.
SECTION 7. Section 1002.031, Estates Code, is amended to
read as follows:
Sec. 1002.031. SUPPORTS AND SERVICES. (a) "Supports and
services" means available community-based formal and informal
resources and assistance that enable an individual to:
(1) meet the individual's needs for food, clothing, or
shelter, regardless of whether the individual is able to make or
communicate decisions about those needs;
(2) care for the individual's physical or mental
health, regardless of whether the individual is able to make or
communicate decisions about health needs;
(3) manage the individual's financial affairs,
regardless of whether the individual is able to make or communicate
decisions about those affairs; or
(4) make personal decisions regarding residence,
voting, operating a motor vehicle, and marriage.
(b) "Community-based informal resources and assistance"
means resources and assistance provided to an individual by a
family member, friend, neighbor, or other support system that help
the individual address daily living needs and responsibilities. The
term includes:
(1) providing free or reduced cost meals and
transportation to the individual;
(2) providing food and prescription delivery to the
individual;
(3) providing peer support to the individual;
(4) opening a joint checking account or obtaining a
joint debit card with the individual;
(5) providing assistance with arranging for direct
deposits at a bank or other financial institution or with paying
bills for the individual;
(6) making daily telephone calls on the individual's
behalf; and
(7) making home visits to the individual.
(c) "Community-based formal resources and assistance" means
resources and assistance provided to an individual with a
disability or an elderly individual under a state or federal
program that enable the individual to remain in his or her own home
or in the community by providing assistance with activities of
daily living, including instrumental activities of daily living.
The term includes:
(1) personal attendant services;
(2) assistance in communicating the individual's
decisions to other persons, including through the use of an
interpreter;
(3) assistance with shopping, handling medication,
and housekeeping;
(4) assistance in accessing or collecting financial
and health benefits;
(5) nurse-delegated tasks;
(6) customized durable medical equipment, assistive
technology, or assistance animals; and
(7) affordable integrated housing and transportation
assistance.
SECTION 8. Section 1054.004, Estates Code, is amended by
amending Subsection (c) and adding Subsections (d), (e), and (f) to
read as follows:
(c) Before the hearing, the attorney ad litem shall:
(1) discuss with the alleged incapacitated person:
(A) [proposed ward] the attorney ad litem's
opinion regarding[:
[(1)] whether a guardianship is necessary for the
alleged incapacitated person [proposed ward]; and
(B) if the attorney ad litem believes a
guardianship is necessary, discuss with the alleged incapacitated
person [(2) if a guardianship is necessary,] the specific powers
or duties of the guardian that should be limited if the person
[proposed ward] receives supports and services; and
(2) advise the alleged incapacitated person of his or
her right to oppose the guardianship and shall allow the person to
make the decision regarding whether to oppose the guardianship.
(d) If the alleged incapacitated person expresses a desire
to oppose the guardianship, the attorney ad litem appointed to
represent the person shall advocate zealously on the person's
behalf and seek alternatives to guardianship or supports and
services to avoid the need for the guardianship.
(e) The attorney ad litem representing the alleged
incapacitated person shall make every reasonable effort within the
bounds of law to advocate for the protection of the person's rights
by ensuring that the applicant for the appointment of a guardian
meets the burden of proof required under Section 1101.101 to
establish the need for that appointment.
(f) The attorney ad litem shall communicate the information
required by this section in the alleged incapacitated person's
native language or preferred mode of communication and in a manner
that is accessible and understandable to the alleged incapacitated
person.
SECTION 9. Section 1101.051(a), Estates Code, is amended to
read as follows:
(a) At a hearing for the appointment of a guardian, the
court shall:
(1) inquire into the ability of any allegedly
incapacitated adult to:
(A) meet the essential requirements for his or
her own physical health, safety, or self-care [feed, clothe, and
shelter himself or herself;
[(B) care for his or her own physical health];
and
(B) [(C)] manage his or her property or financial
affairs;
(2) ascertain the age of any alleged incapacitated
person [proposed ward] who is a minor;
(3) inquire into the governmental reports for any
person who must have a guardian appointed to receive funds due the
person from any governmental source; and
(4) inquire into the qualifications, abilities, and
capabilities of the person seeking to be appointed guardian.
SECTION 10. Sections 1101.101(a) and (c), Estates Code, are
amended to read as follows:
(a) Before appointing a guardian for an alleged
incapacitated person [a proposed ward], the court must:
(1) find by clear and convincing evidence that:
(A) the alleged incapacitated person [proposed
ward] is an incapacitated person;
(B) it is in the alleged incapacitated person's
[proposed ward's] best interest to have the court appoint a person
as the alleged incapacitated person's [proposed ward's] guardian;
(C) the alleged incapacitated person's [proposed
ward's] rights or property will be protected by the appointment of a
guardian;
(D) alternatives to guardianship that would
avoid the need for the appointment of a guardian have been
considered and determined not to be feasible; and
(E) supports and services available to the
alleged incapacitated person [proposed ward] that would avoid the
need for the appointment of a guardian have been considered and
determined not to be feasible; and
(2) find by a preponderance of the evidence that:
(A) the court has venue of the case;
(B) the person to be appointed guardian is
eligible to act as guardian and is entitled to appointment, or, if
no eligible person entitled to appointment applies, the person
appointed is a proper person to act as guardian;
(C) if a guardian is appointed for a minor, the
guardianship is not created for the primary purpose of enabling the
minor to establish residency for enrollment in a school or school
district for which the minor is not otherwise eligible for
enrollment; and
(D) the alleged incapacitated person [proposed
ward]:
(i) [is] totally lacks the ability to meet
the essential requirements for his or her own physical health,
safety, or self-care [without capacity as provided by this title to
care for himself or herself] and to manage his or her property for
the reasons provided by Section 1002.017(2); or
(ii) lacks the ability [capacity] to do
some, but not all, of the tasks necessary to meet the essential
requirements for his or her own physical health, safety, or
self-care [care for himself or herself] or to manage his or her
property for the reasons provided by Section 1002.017(2).
(c) A finding under Subsection (a)(2)(D)(ii) must
specifically state whether the alleged incapacitated person
[proposed ward] lacks the ability [capacity], or lacks the
sufficient ability [capacity] with supports and services, to make
personal decisions regarding residence, voting, operating a motor
vehicle, and marriage.
SECTION 11. Sections 1101.103(a) and (d), Estates Code, are
amended to read as follows:
(a) The [Except as provided by Section 1101.104, the] court
may not grant an application to create a guardianship for an
incapacitated person, other than a minor or person for whom it is
necessary to have a guardian appointed only to receive funds from a
governmental source, unless the applicant presents to the court a
written letter or certificate from a physician licensed in this
state that is:
(1) dated not earlier than the 120th day before the
date the application is filed; and
(2) based on an examination the physician performed
not earlier than the 120th day before the date the application is
filed.
(d) A physician who examines the alleged incapacitated
person [proposed ward, other than a physician or psychologist who
examines the proposed ward under Section 1101.104(2),] shall make
available for inspection by the attorney ad litem appointed to
represent the alleged incapacitated person [proposed ward] a
written letter or certificate from the physician that complies with
the requirements of Subsections (a) and (b).
SECTION 12. Section 1101.151, Estates Code, is amended to
read as follows:
Sec. 1101.151. ORDER APPOINTING GUARDIAN WITH FULL
AUTHORITY. (a) If it is found that the alleged incapacitated
person [proposed ward is] totally lacks the ability, for the
reasons provided by Section 1002.017(2), to meet the essential
requirements for his or her own health, safety, or self-care
[without capacity to care for himself or herself], manage his or her
property, operate a motor vehicle, make personal decisions
regarding residence, and vote in a public election, even with
appropriate supports and services or supported decision-making,
the court may appoint a guardian of the alleged incapacitated
person's [proposed ward's] person or estate, or both, with full
authority over the incapacitated person except as provided by law.
(b) An order appointing a guardian under this section must
contain findings of fact and specify:
(1) the information required by Section 1101.153(a);
(2) that the guardian has full authority over the
incapacitated person;
(3) if necessary, the amount of funds from the corpus
of the person's estate the court will allow the guardian to spend
for the education and maintenance of the person under Subchapter A,
Chapter 1156;
(4) whether the person [is] totally lacks the ability
to meet the essential requirements for his or her own health,
safety, or self-care [incapacitated] because of a mental condition;
(5) that the person does not have the ability
[capacity] to operate a motor vehicle, make personal decisions
regarding residence, and vote in a public election; and
(6) if it is a guardianship of the person of the
incapacitated person [ward] or of both the person and the estate of
the incapacitated person [ward], the rights of the guardian with
respect to the person as specified in Section 1151.051(c)(1).
(c) An order appointing a guardian under this section that
includes the rights of the guardian with respect to the person as
specified in Section 1151.051(c)(1) must also contain the following
prominently displayed statement in boldfaced type, in capital
letters, or underlined:
"NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY
USE REASONABLE EFFORTS TO ENFORCE THE RIGHT OF A GUARDIAN OF THE
PERSON OF AN INCAPACITATED PERSON [A WARD] TO HAVE PHYSICAL
POSSESSION OF THE INCAPACITATED PERSON [WARD] OR TO ESTABLISH THE
INCAPACITATED PERSON'S [WARD'S] LEGAL DOMICILE AS SPECIFIED IN THIS
ORDER. A PEACE OFFICER WHO RELIES ON THE TERMS OF A COURT ORDER AND
THE OFFICER'S AGENCY ARE ENTITLED TO THE APPLICABLE IMMUNITY
AGAINST ANY CIVIL OR OTHER CLAIM REGARDING THE OFFICER'S GOOD FAITH
ACTS PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING THE
TERMS OF THIS ORDER THAT RELATE TO THE ABOVE-MENTIONED RIGHTS OF THE
COURT-APPOINTED GUARDIAN OF THE PERSON OF THE INCAPACITATED PERSON
[WARD]. ANY PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER
THAT IS INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT MAY
BE PUNISHABLE BY CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS AND A
FINE OF AS MUCH AS $10,000."
SECTION 13. Section 1101.152, Estates Code, is amended to
read as follows:
Sec. 1101.152. ORDER APPOINTING GUARDIAN WITH LIMITED
AUTHORITY. (a) If it is found that the alleged incapacitated
person [proposed ward] lacks the ability, for the reasons provided
by Section 1002.017(2), [capacity] to do some, but not all, of the
tasks necessary to meet the essential requirements for his or her
own health, safety, or self-care [care for himself or herself] or to
manage his or her property with or without supports and services,
the court may appoint a guardian with limited powers and permit the
alleged incapacitated person [proposed ward] to care for himself or
herself, including making personal decisions regarding residence
and regarding the person's own physical health, safety, or
self-care, or to manage his or her property commensurate with the
alleged incapacitated person's [proposed ward's] ability.
(b) An order appointing a guardian under this section must
contain findings of fact and specify:
(1) the information required by Section 1101.153(a);
(2) the specific powers, limitations, or duties of the
guardian with respect to the person's health, safety, or care or the
management of the person's property by the guardian;
(2-a) the specific rights and powers retained by the
person:
(A) with the necessity for supports and services;
and
(B) without the necessity for supports and
services;
(3) if necessary, the amount of funds from the corpus
of the person's estate the court will allow the guardian to spend
for the education and maintenance of the person under Subchapter A,
Chapter 1156; and
(4) whether the person is incapacitated because of a
mental condition and, if so, whether the person:
(A) retains the right to make personal decisions
regarding residence or vote in a public election; or
(B) maintains eligibility to hold or obtain a
license to operate a motor vehicle under Chapter 521,
Transportation Code.
(c) An order appointing a guardian under this section that
includes the right of the guardian to have physical possession of
the incapacitated person [ward] or to establish the incapacitated
person's [ward's] legal domicile as specified in Section
1151.051(c)(1) must also contain the following prominently
displayed statement in boldfaced type, in capital letters, or
underlined:
"NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY
USE REASONABLE EFFORTS TO ENFORCE THE RIGHT OF A GUARDIAN OF THE
PERSON OF AN INCAPACITATED PERSON [A WARD] TO HAVE PHYSICAL
POSSESSION OF THE INCAPACITATED PERSON [WARD] OR TO ESTABLISH THE
INCAPACITATED PERSON'S [WARD'S] LEGAL DOMICILE AS SPECIFIED IN THIS
ORDER. A PEACE OFFICER WHO RELIES ON THE TERMS OF A COURT ORDER AND
THE OFFICER'S AGENCY ARE ENTITLED TO THE APPLICABLE IMMUNITY
AGAINST ANY CIVIL OR OTHER CLAIM REGARDING THE OFFICER'S GOOD FAITH
ACTS PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING THE
TERMS OF THIS ORDER THAT RELATE TO THE ABOVE-MENTIONED RIGHTS OF THE
COURT-APPOINTED GUARDIAN OF THE PERSON OF THE INCAPACITATED PERSON
[WARD]. ANY PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER
THAT IS INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT MAY
BE PUNISHABLE BY CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS AND A
FINE OF AS MUCH AS $10,000."
SECTION 14. Section 1101.155, Estates Code, is amended to
read as follows:
Sec. 1101.155. DISMISSAL OF APPLICATION. If it is found
that an alleged incapacitated person [a proposed ward] who is an
adult possesses the ability to meet the essential requirements for
his or her own physical health, safety, or self-care [capacity to
care for himself or herself] and to manage his or her property as
would a reasonably prudent person, the court shall dismiss an
application for guardianship.
SECTION 15. Section 1202.001(b), Estates Code, is amended
to read as follows:
(b) A guardianship shall be settled and closed when the
incapacitated person [ward]:
(1) dies and, if the incapacitated person [ward] was
married, the person's [ward's] spouse qualifies as survivor in
community;
(2) is found by the court to have full ability
[capacity], or sufficient ability [capacity] with supports and
services, to meet the essential requirements for his or her own
physical health, safety, or self-care [care for himself or herself]
and to manage the incapacitated person's [ward's] property;
(3) is no longer a minor; or
(4) no longer must have a guardian appointed to
receive funds due the incapacitated person [ward] from any
governmental source.
SECTION 16. Section 1202.051(a), Estates Code, is amended
to read as follows:
(a) Notwithstanding Section 1055.003, a person with a
guardian [ward] or any person interested in the [ward's] welfare of
the person with a guardian may file a written application with the
court for an order:
(1) finding that the person with a guardian [ward] is
no longer an incapacitated person and ordering the settlement and
closing of the guardianship;
(2) finding that the person with a guardian [ward]
lacks the ability, for the reasons provided by Section 1002.017(2)
[capacity], or lacks the sufficient ability [capacity] with
supports and services, to do some or all of the tasks necessary to
meet the essential requirements for his or her own physical health,
safety, or self-care [provide food, clothing, or shelter for
himself or herself, to care for the ward's own physical health,] or
to manage his or her [the ward's] own financial affairs and granting
additional powers or duties to the guardian; or
(3) finding that the person with a guardian, despite
the reasons provided by Section 1002.017(2), [ward] has the ability
[capacity], or sufficient ability [capacity] with supports and
services, to do some, but not all, of the tasks necessary to meet
the essential requirements for his or her own physical health,
safety, or self-care [provide food, clothing, or shelter for
himself or herself, to care for the ward's own physical health,] or
to manage his or her [the ward's] own financial affairs and:
(A) limiting the guardian's powers or duties; and
(B) permitting the person with a guardian [ward]
to provide for his or her own physical health, safety, or self-care
[care for himself or herself], make personal decisions regarding
residence, or manage the person's [ward's] own financial affairs
commensurate with the person's [ward's] ability, with or without
supports and services.
SECTION 17. Section 1202.152, Estates Code, is amended to
read as follows:
Sec. 1202.152. PHYSICIAN'S LETTER OR CERTIFICATE REQUIRED.
(a) The court may not grant an order completely restoring the [a
ward's] capacity of or modifying a [ward's] guardianship for a
person with a guardian under an application filed under Section
1202.051 unless the applicant presents to the court a written
letter or certificate from a physician licensed in this state that
is dated:
(1) not earlier than the 120th day before the date the
application was filed; or
(2) after the date the application was filed but
before the date of the hearing.
(b) A letter or certificate presented under Subsection (a)
must:
(1) describe the nature and degree of incapacity,
including the medical history if reasonably available, or state
that, in the physician's opinion, the person with a guardian [ward]
has the ability [capacity], or sufficient ability [capacity] with
supports and services, to:
(A) meet the essential requirements for his or
her own health, safety, or self-care [provide food, clothing, and
shelter for himself or herself;
[(B) care for the ward's own physical health];
and
(B) [(C)] manage the person's [ward's] financial
affairs;
(2) provide a medical prognosis specifying the
estimated severity of any incapacity;
(3) state how or in what manner the [ward's] ability of
the person with a guardian to make or communicate responsible
decisions concerning himself or herself is affected by the person's
[ward's] physical or mental health;
(4) state whether any current medication affects the
[ward's] demeanor of the person with a guardian or the person's
[ward's] ability to participate fully in a court proceeding;
(5) describe the precise physical and mental
conditions underlying a diagnosis of senility, if applicable; and
(6) include any other information required by the
court.
(c) If the court determines it is necessary, the court may
appoint the necessary physicians to examine the person with a
guardian [ward] in the same manner and to the same extent as a
person with a guardian [ward] is examined by a physician under
Section 1101.103 [or 1101.104].
SECTION 18. Section 36.001(1), Government Code, is amended
to read as follows:
(1) "Competency evaluator" means a physician or
psychologist who is licensed or certified in this state and who
performs examinations to determine whether an individual is
incapacitated or has an intellectual disability for purposes of
appointing a guardian for the individual. The term includes
physicians and psychologists conducting examinations under Section
[Sections] 1101.103 [and 1101.104], Estates Code.
SECTION 19. Section 155.001(7), Government Code, is amended
to read as follows:
(7) "Ward" or "person with a guardian" has the meaning
assigned by Section 22.033, Estates Code.
SECTION 20. Section 240.002(15), Property Code, is amended
to read as follows:
(15) "Ward" or "person with a guardian" has the
meaning assigned by Section 22.033, Estates Code.
SECTION 21. Section 1101.104, Estates Code, is repealed.
SECTION 22. The changes in law made by this Act to Sections
1054.004, 1101.051(a), 1101.101(a) and (c), 1101.103(a) and (d),
1101.151, 1101.152, and 1101.155, Estates Code, apply only to a
guardianship proceeding commenced on or after the effective date of
this Act. A guardianship proceeding commenced before the effective
date of this Act is governed by the law in effect on the date the
proceeding was commenced, and the former law is continued in effect
for that purpose.
SECTION 23. The changes in law made by this Act to Sections
1202.001(b), 1202.051(a), and 1202.152, Estates Code, apply only to
a proceeding for the complete restoration of capacity of an
incapacitated person or modification of a guardianship commenced on
or after the effective date of this Act. A proceeding described by
this section commenced before the effective date of this Act is
governed by the law in effect on the date the proceeding was
commenced, and the former law is continued in effect for that
purpose.
SECTION 24. This Act takes effect September 1, 2019.