Bill Text: TX SB1783 | 2019-2020 | 86th Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to guardianships, alternatives to guardianship, and supports and services for incapacitated persons.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Engrossed - Dead) 2019-05-15 - Committee report sent to Calendars [SB1783 Detail]
Download: Texas-2019-SB1783-Introduced.html
Bill Title: Relating to guardianships, alternatives to guardianship, and supports and services for incapacitated persons.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Engrossed - Dead) 2019-05-15 - Committee report sent to Calendars [SB1783 Detail]
Download: Texas-2019-SB1783-Introduced.html
By: Zaffirini | S.B. No. 1783 | |
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relating to guardianships, alternatives to guardianship, and | ||
supports and services for incapacitated persons. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 1023.001, Estates Code, is amended by | ||
amending Subsection (a) and adding Subsection (a-1) to read as | ||
follows: | ||
(a) Except as otherwise authorized by this section, a | ||
proceeding for the appointment of a guardian for the person or | ||
estate, or both, of an incapacitated person shall be brought in the | ||
county in which the proposed ward resides or is located on the date | ||
the application is filed. | ||
(a-1) A proceeding for the appointment of a guardian for the | ||
estate of an incapacitated person may be brought [ |
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in which the principal estate of the proposed ward is located. | ||
SECTION 2. Section 1023.005, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1023.005. COURT ACTION. (a) On hearing an | ||
application or motion under Section 1023.003, if [ |
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guardianship is in the best interests of the ward and either the | ||
ward has resided in the county to which the guardianship is to be | ||
transferred for at least six months or good cause is not otherwise | ||
shown to deny the transfer, 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. | ||
(b) In making a determination that the transfer is in the | ||
best interests of the ward under Subsection (a), the court may | ||
consider: | ||
(1) the interests of justice; | ||
(2) the convenience of the parties; and | ||
(3) the preference of the ward, if the ward is 12 years | ||
of age or older. | ||
(c) If the ward resides in the county to which a | ||
guardianship is transferred under Subsection (a), the county shall | ||
accept the transfer of the guardianship. | ||
SECTION 3. Section 1023.008, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1023.008. CONTINUATION OF GUARDIANSHIP. (a) When a | ||
guardianship is transferred from one county to another in | ||
accordance with this chapter: | ||
(1) [ |
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which it was transferred as if it had been originally commenced in | ||
that court; | ||
(2) the court to which the guardianship is transferred | ||
becomes the court of continuing, exclusive jurisdiction; | ||
(3) a proceeding relating to the guardianship that is | ||
commenced in the court ordering the transfer continues in the court | ||
to which the guardianship is transferred as if the proceeding | ||
commenced in the receiving court; | ||
(4) a judgment or order entered in the guardianship | ||
before the transfer has the same effect and must be enforced as a | ||
judgment or order entered by the court to which the guardianship is | ||
transferred; and | ||
(5) the court ordering the transfer does not retain: | ||
(A) jurisdiction of the ward who is the subject | ||
of the guardianship; and | ||
(B) the authority to enforce an order entered for | ||
a violation of this title that occurred before or after the | ||
transfer. | ||
(b) It is not necessary to record in the receiving court any | ||
of the papers in the case that were recorded in the court from which | ||
the case was transferred. | ||
SECTION 4. Chapter 1023, Estates Code, is amended by adding | ||
Section 1023.011 to read as follows: | ||
Sec. 1023.011. NO LIABILITY OF JUDGE. A judge who transfers | ||
a guardianship to another county shall certify in the transfer | ||
order that the guardianship is in compliance with the Texas Estates | ||
Code at the time of transfer. When a guardianship is transferred | ||
from one county to another in accordance with this chapter, a judge | ||
of the court from which the guardianship is transferred may not be | ||
held civilly liable for any injury, damage, or loss to the ward or | ||
the ward's estate that occurs after the transfer. A judge of the | ||
court to which the guardianship is transferred may not be held | ||
civilly liable for any injury, damage, or loss to the ward or the | ||
ward's estate that occurred prior to the transfer. | ||
SECTION 5. Subchapter D, Chapter 1055, Estates Code, is | ||
amended to read as follows: | ||
SUBCHAPTER D. MEDIATION | ||
Sec. 1055.151. MEDIATION OF [ |
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PROCEEDING. (a) [ |
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matter to mediation at any time after the filing of an application | ||
for guardianship before a final hearing or jury trial. The court | ||
shall refer the matter to mediation if such request is made by: | ||
(1) the proposed ward; | ||
(2) an attorney ad litem appointed for the proposed | ||
ward under Section 1054.001; | ||
(3) a guardian ad litem appointed for the proposed | ||
ward under Section 1054.051; | ||
(4) a family member of the proposed ward who has | ||
entered an appearance in the matter or that family member's | ||
attorney; | ||
(5) a private professional guardian, friend of the | ||
proposed ward, or other person who filed the application for | ||
guardianship and who is not a family member of the proposed ward; or | ||
(6) a guardianship program that filed the application | ||
requesting to be appointed guardian. | ||
A court may also require named individuals: ward, guardian, | ||
attorney ad litem, guardian ad litem, family, and others to | ||
participate in an annual mediation to assist the court in | ||
determining the need for continuing a guardianship, or use of | ||
lesser restrictive alternatives. | ||
(b) Capacity of the proposed ward shall not be an issue to be | ||
mediated and must still be proved to the Court in accordance with | ||
Texas Estates Code Chapter 1101. Additionally, all parties shall | ||
evaluate available alternatives to guardianship and supports and | ||
services at the mediation in accordance with Texas Estates Code | ||
Sections 1101.010(a)(1)(D) through (a)(1)(E) and whether the | ||
supports and services and alternatives to guardianship would be | ||
feasible to avoid the need for a guardianship. | ||
(c) All mediations under this Section shall be conducted by | ||
individuals who: | ||
(1) have been approved by the Court and | ||
(2) have completed a specialized 24 hour guardianship | ||
mediation training course conducted by an alternative dispute | ||
resolution system or an organization approved by the Office of | ||
Court Administration, in addition to addition to satisfying the | ||
requirements set forth in Chapter 154.052, Texas Civil Practice and | ||
Remedies Code. | ||
(d) The cost of mediation shall be paid by the parties | ||
unless otherwise ordered by the Court. If the parties are unable to | ||
pay the cost of mediation, the cost of mediation shall be borne by | ||
the ADR fund established under 152.004 or Section 152.006 of the | ||
Texas Civil Practice and Remedies Code. | ||
Sec. 1055.152. MEDIATED SETTLEMENT AGREEMENTS. (a) A | ||
mediated settlement agreement is binding on the parties if the | ||
agreement: | ||
(1) provides, in a prominently displayed statement | ||
that is in boldfaced type, in capital letters, or underlined, that | ||
the agreement is not subject to revocation by the parties and that | ||
the parties agree the settlement agreement is in the best interest | ||
of the Ward. | ||
(2) is signed by each party to the agreement; and | ||
(3) is signed by the party's attorney, if any, who is | ||
present at the time the agreement is signed. | ||
(b) [ |
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requirements of this section, a party is entitled to judgment on the | ||
mediated settlement agreement notwithstanding Rule 11, Texas Rules | ||
of Civil Procedure, or another rule or law. | ||
(c) [ |
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settlement agreement if the court finds that the agreement is not in | ||
the ward's or proposed ward's best interests. | ||
Sec. 1055.153. MEDIATION PROJECT. (a) For the purposes of | ||
this section, a probate court is considered a mental health court | ||
under Chapter 125, Government Code. | ||
(b) A probate court may: | ||
(1) apply for a public or private grant to fund a | ||
mediation project in connection with a guardianship proceeding; or | ||
(2) participate in a national or state mediation | ||
project to study the effects of mediation on promoting the least | ||
restrictive alternatives to guardianship for incapacitated | ||
persons. | ||
(c) This section expires September 1, 2021. | ||
SECTION 6. Section 1101.001(b), Estates Code, is amended to | ||
read as follows: | ||
(b) The application must be sworn to by the applicant and | ||
state: | ||
(1) the proposed ward's name, sex, date of birth, and | ||
address; | ||
(2) the name, relationship, and address of the person | ||
the applicant seeks to have appointed as guardian; | ||
(3) whether guardianship of the person or estate, or | ||
both, is sought; | ||
(3-a) whether alternatives to guardianship and | ||
available supports and services to avoid guardianship were | ||
considered; | ||
(3-b) whether any alternatives to guardianship and | ||
supports and services available to the proposed ward considered are | ||
feasible and would avoid the need for a guardianship; | ||
(3-c) whether mediation was considered or encouraged | ||
to avoid the need for guardianship; | ||
(4) the nature and degree of the alleged incapacity, | ||
the specific areas of protection and assistance requested, and the | ||
limitation or termination of rights requested to be included in the | ||
court's order of appointment, including a termination of: | ||
(A) the right of a proposed ward who is 18 years | ||
of age or older to vote in a public election; | ||
(B) the proposed ward's eligibility to hold or | ||
obtain a license to operate a motor vehicle under Chapter 521, | ||
Transportation Code; and | ||
(C) the right of a proposed ward to make personal | ||
decisions regarding residence; | ||
(5) the facts requiring the appointment of a guardian; | ||
(6) the interest of the applicant in the appointment | ||
of a guardian; | ||
(7) the nature and description of any kind of | ||
guardianship existing for the proposed ward in any other state; | ||
(8) the name and address of any person or institution | ||
having the care and custody of the proposed ward; | ||
(9) the approximate value and description of the | ||
proposed ward's property, including any compensation, pension, | ||
insurance, or allowance to which the proposed ward may be entitled; | ||
(10) the name and address of any person whom the | ||
applicant knows to hold a power of attorney signed by the proposed | ||
ward and a description of the type of power of attorney; | ||
(11) for a proposed ward who is a minor, the following | ||
information if known by the applicant: | ||
(A) the name of each of the proposed ward's | ||
parents and either the parent's address or that the parent is | ||
deceased; | ||
(B) the name and age of each of the proposed | ||
ward's siblings, if any, and either the sibling's address or that | ||
the sibling is deceased; and | ||
(C) if each of the proposed ward's parents and | ||
adult siblings are deceased, the names and addresses of the | ||
proposed ward's other living relatives who are related to the | ||
proposed ward within the third degree by consanguinity and who are | ||
adults; | ||
(12) for a proposed ward who is a minor, whether the | ||
minor was the subject of a legal or conservatorship proceeding in | ||
the preceding two years and, if so: | ||
(A) the court involved; | ||
(B) the nature of the proceeding; and | ||
(C) any final disposition of the proceeding; | ||
(13) for a proposed ward who is an adult, the following | ||
information if known by the applicant: | ||
(A) the name of the proposed ward's spouse, if | ||
any, and either the spouse's address or that the spouse is deceased; | ||
(B) the name of each of the proposed ward's | ||
parents and either the parent's address or that the parent is | ||
deceased; | ||
(C) the name and age of each of the proposed | ||
ward's siblings, if any, and either the sibling's address or that | ||
the sibling is deceased; | ||
(D) the name and age of each of the proposed | ||
ward's children, if any, and either the child's address or that the | ||
child is deceased; and | ||
(E) if there is no living spouse, parent, adult | ||
sibling, or adult child of the proposed ward, the names and | ||
addresses of the proposed ward's other living relatives who are | ||
related to the proposed ward within the third degree by | ||
consanguinity and who are adults; | ||
(14) facts showing that the court has venue of the | ||
proceeding; and | ||
(15) if applicable, that the person whom the applicant | ||
seeks to have appointed as a guardian is a private professional | ||
guardian who is certified under Subchapter C, Chapter 155, | ||
Government Code, and has complied with the requirements of | ||
Subchapter G, Chapter 1104. | ||
SECTION 7. The heading to Subchapter B, Chapter 1101, | ||
Estates Code, is amended to read as follows: | ||
SUBCHAPTER B. HEARING; JURY TRIAL; MEDIATION | ||
SECTION 8. Section 1101.052, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1101.052. JURY TRIAL AND MEDIATION. A proposed ward is | ||
entitled to a jury trial on request. At any time after the filing of | ||
an application for guardianship but before the date of the final | ||
hearing or jury trial for the appointment of a guardian, the court | ||
may refer a matter to mediation in accordance with Section | ||
1055.151. | ||
SECTION 9. Section 1201.053, Estates Code, is amended by | ||
adding Subsection (c) to read as follows: | ||
(c) In reviewing a guardianship under Section 1201.052, a | ||
court may require the following persons to participate in a | ||
mediation in connection with the guardianship matter: | ||
(1) the ward; | ||
(2) the ward's guardian; | ||
(3) an attorney ad litem appointed to represent the | ||
ward or the ward's interests; | ||
(4) a guardian ad litem appointed to represent the | ||
ward or the ward's interests; | ||
(5) a family member of the ward; or | ||
(6) any other person interested in the ward's welfare. | ||
SECTION 10. Section 1202.001, Estates Code, is amended by | ||
adding Subsection (b-1) to read as follows: | ||
(b-1) A guardianship of the person shall be settled and | ||
closed when the court finds that the ward's incapacity needs can be | ||
managed without the necessity for that continued guardianship by an | ||
alternative to guardianship or with supports and services as | ||
provided by Subchapter F. | ||
SECTION 11. Chapter 1202, Estates Code, is amended by | ||
adding Subchapter F to read as follows: | ||
SUBCHAPTER F. TERMINATION OF GUARDIANSHIP OF THE PERSON ON FINDING | ||
THAT INCAPACITY THE PERSON'S NEEDS CAN BE MANAGED WITHOUT | ||
GUARDIANSHIP | ||
Sec. 1202.231. TERMINATION OF GUARDIANSHIP OF THE PERSON ON | ||
FINDING THAT WARD'S INCAPACITY NEEDS CAN BE MANAGED WITHOUT | ||
GUARDIANSHIP. On application by the guardian of the person of a | ||
ward or another person interested in the ward's welfare, or on the | ||
court's own motion and subject to Section 1202.232, the court may | ||
order that the guardianship of the person of the ward terminate and | ||
be settled and closed if the court makes the findings required under | ||
Section 1202.233. | ||
Sec. 1202.232. PHYSICIAN'S LETTER OR CERTIFICATE REQUIRED. | ||
(a) The court may not grant an order terminating a guardianship of | ||
the person under Section 1202.231 unless the applicant presents to | ||
the court or the court secures 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 the date the court enters the court's | ||
motion; or | ||
(2) any time after the date the application was filed | ||
or the date the court's motion was entered 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 of | ||
the ward, including the ward's medical history if reasonably | ||
available; | ||
(2) provide a medical prognosis for the ward | ||
specifying the estimated severity of any incapacity; | ||
(3) state how or in what manner the ward's ability to | ||
make or communicate responsible decisions concerning the ward is | ||
affected by the ward's physical or mental health; | ||
(4) state whether any current medication affects the | ||
ward's demeanor or the 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; | ||
(6) describe feasible alternatives to guardianship | ||
available to the ward that would avoid the need for the continued | ||
appointment of a guardian of the person and state whether, in the | ||
physician's opinion, those alternatives to guardianship meet the | ||
following needs of the ward without the necessity for a continued | ||
guardianship of the person: | ||
(A) provision of food, clothing, and shelter for | ||
the ward's own self; | ||
(B) care for the ward's own physical health; and | ||
(C) management of the ward's financial affairs; | ||
(7) describe feasible supports and services available | ||
to the ward that would avoid the need for the continued appointment | ||
of a guardian of the person for the ward and state whether, in the | ||
physician's opinion, the supports and services meet the following | ||
needs of the ward without the necessity for a continued | ||
guardianship of the person: | ||
(A) provision of food, clothing, and shelter for | ||
the ward's own self; | ||
(B) care for the ward's own physical health; and | ||
(C) management of the ward's financial affairs; | ||
and | ||
(8) 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 ward. | ||
Sec. 1202.233. FINDINGS REQUIRED. Before ordering the | ||
termination of a guardianship of the person under Section 1202.231, | ||
the court must find by a preponderance of the evidence that: | ||
(1) the ward remains a partially or completely | ||
incapacitated person; | ||
(2) the current nature and degree of the ward's | ||
incapacity and the ward's needs can be managed without the | ||
necessity of a continued guardianship of the person by: | ||
(A) alternatives to guardianship that are | ||
available to the ward and that are determined to be feasible; or | ||
(B) supports and services that are available to | ||
the ward and that are determined to be feasible; and | ||
(3) termination of the guardianship of the person: | ||
(A) is in the ward's best interest; and | ||
(B) will encourage the development or | ||
maintenance of maximum self-reliance and independence in the ward. | ||
Sec. 1202.234. GENERAL REQUIREMENTS FOR ORDER. A court | ||
order that terminates a guardianship of the person under this | ||
subchapter must: | ||
(1) contain the findings required under Section | ||
1202.233; | ||
(2) state the guardian's name; | ||
(3) state the ward's name; | ||
(4) specify: | ||
(A) the supports and services that: | ||
(i) will meet the ward's needs without the | ||
continued necessity for guardianship of the person; and | ||
(ii) justify the termination of that | ||
guardianship; or | ||
(B) the alternatives to guardianship that: | ||
(i) will meet the ward's needs without the | ||
continued necessity for guardianship of the person; and | ||
(ii) justify the termination of that | ||
guardianship; | ||
(5) identify the persons or entities providing or that | ||
will provide: | ||
(A) the supports and services described by | ||
Subdivision (4)(A); or | ||
(B) alternatives to guardianship described by | ||
Subdivision (4)(B); | ||
(6) state that the guardian is required to: | ||
(A) immediately settle the guardianship in | ||
accordance with this title; and | ||
(B) deliver all of the ward's remaining personal | ||
effects and assets, if any, to the persons or entities identified | ||
under Subdivision (5)(A) or (B), as applicable; and | ||
(7) state that the clerk shall revoke letters of | ||
guardianship of the person when the guardianship is finally settled | ||
and closed. | ||
Sec. 1202.235. NOTICE; APPOINTMENT OF ATTORNEY AD LITEM OR | ||
GUARDIAN AD LITEM. A court may, in its discretion, enter additional | ||
orders in the best interest of the ward, including but not limited | ||
to: | ||
(1) requiring notice to interested parties;; | ||
(2) appoint an attorney ad litem and/or guardian ad | ||
litem. | ||
SECTION 12. Chapter 155, Government Code, is amended by | ||
adding Subchapter G to read as follows: | ||
SUBCHAPTER G. GUARDIANSHIP MEDIATION TRAINING | ||
Sec. 155.301. TRAINING. The Office of Court Administration | ||
by rule shall establish a 24 hour training course for use by | ||
approved dispute resolution training providers for those persons | ||
appointed to facilitate mediations under Title 3, Estates Code. | ||
Providers of mediation training shall adhere to the approved | ||
curriculum. | ||
SECTION 13. (a) Except as otherwise provided by this | ||
section, the changes in law made by this Act apply to a guardianship | ||
created before, on, or after the effective date of this Act. | ||
(b) Section 1023.001, Estates Code, as amended by this Act, | ||
applies only to a proceeding commenced on or after the effective | ||
date of this Act. A proceeding commenced before the effective date | ||
of this Act is governed by the law applicable to the proceeding | ||
immediately before the effective date of this Act, and that law is | ||
continued in effect for that purpose. | ||
(c) Section 1101.001(b), Estates Code, as amended by this | ||
Act, applies only to an application for the appointment of a | ||
guardian filed on or after the effective date of this Act. An | ||
application for the appointment of a guardian 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. | ||
SECTION 14. This Act takes effect September 1, 2019. |