Bill Text: TX HB3543 | 2019-2020 | 86th Legislature | Comm Sub

---

Bill Title: Relating to guardianships, management trusts, and certain other procedures and proceedings for persons who are incapacitated.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2019-04-29 - Committee report sent to Calendars [HB3543 Detail]

Download: Texas-2019-HB3543-Comm_Sub.html

---

86R25211 CLG-F
By: Thompson of Harris H.B. No. 3543
Substitute the following for H.B. No. 3543:
By: J. Johnson of Dallas C.S.H.B. No. 3543

A BILL TO BE ENTITLED
AN ACT
relating to guardianships, management trusts, and certain other
procedures and proceedings for persons who are incapacitated.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1021.001, Estates Code, is amended to
read as follows:
Sec. 1021.001. MATTERS RELATED TO GUARDIANSHIP PROCEEDING.
(a) For purposes of this code, in a county in which there is no
statutory probate court or county court of law exercising original
probate jurisdiction, a matter related to a guardianship proceeding
includes:
(1) the granting of letters of guardianship;
(2) the settling of an account of a guardian and all
other matters relating to the settlement, partition, or
distribution of a ward's estate;
(3) a claim brought by or against a guardianship
estate;
(4) an action for trial of title to real property that
is guardianship estate property, including the enforcement of a
lien against the property;
(5) an action for trial of the right of property that
is guardianship estate property;
(6) after a guardianship of the estate of a ward is
required to be settled as provided by Section 1204.001:
(A) an action brought by or on behalf of the
former ward against a former guardian of the ward for alleged
misconduct arising from the performance of the person's duties as
guardian;
(B) an action calling on the surety of a guardian
or former guardian to perform in place of the guardian or former
guardian, which may include the award of a judgment against the
guardian or former guardian in favor of the surety;
(C) an action against a former guardian of the
former ward that is brought by a surety that is called on to perform
in place of the former guardian;
(D) a claim for the payment of compensation,
expenses, and court costs, and any other matter authorized under
Chapter 1155; and
(E) a matter related to an authorization made or
duty performed by a guardian under Chapter 1204; and
(7) the appointment of a trustee for a trust created
under Section 1301.053 or 1301.054, the settling of an account of
the trustee, and all other matters relating to the trust.
(a-1) For purposes of this code, in a county in which there
is no statutory probate court, but in which there is a county court
at law exercising original probate jurisdiction, a matter related
to a guardianship proceeding includes:
(1) all matters and actions described in Subsection
(a);
(2) the interpretation and administration of a
testamentary trust in which a ward is an income or remainder
beneficiary; and
(3) the interpretation and administration of an inter
vivos trust in which a ward is an income or remainder beneficiary.
(b) For purposes of this code, in a county in which there is
a statutory probate court, a matter related to a guardianship
proceeding includes:
(1) all matters and actions described in Subsections
[Subsection] (a) and (a-1);
(2) a suit, action, or application filed against or on
behalf of a guardianship or a trustee of a trust created under
Section 1301.053 or 1301.054; and
(3) a cause of action in which a guardian in a
guardianship pending in the statutory probate court is a party.
SECTION 2. Section 1151.351(b), Estates Code, is amended to
read as follows:
(b) Unless limited by a court or otherwise restricted by
law, a ward is authorized to the following:
(1) to have a copy of the guardianship order and
letters of guardianship and contact information for the probate
court that issued the order and letters;
(2) to have a guardianship that encourages the
development or maintenance of maximum self-reliance and
independence in the ward with the eventual goal, if possible, of
self-sufficiency;
(3) to be treated with respect, consideration, and
recognition of the ward's dignity and individuality;
(4) to reside and receive support services in the most
integrated setting, including home-based or other community-based
settings, as required by Title II of the Americans with
Disabilities Act (42 U.S.C. Section 12131 et seq.);
(5) to consideration of the ward's current and
previously stated personal preferences, desires, medical and
psychiatric treatment preferences, religious beliefs, living
arrangements, and other preferences and opinions;
(6) to financial self-determination for all public
benefits after essential living expenses and health needs are met
and to have access to a monthly personal allowance;
(7) to receive timely and appropriate health care and
medical treatment that does not violate the ward's rights granted
by the constitution and laws of this state and the United States;
(8) to exercise full control of all aspects of life not
specifically granted by the court to the guardian;
(9) to control the ward's personal environment based
on the ward's preferences;
(10) to complain or raise concerns regarding the
guardian or guardianship to the court, including living
arrangements, retaliation by the guardian, conflicts of interest
between the guardian and service providers, or a violation of any
rights under this section;
(11) to receive notice in the ward's native language,
or preferred mode of communication, and in a manner accessible to
the ward, of a court proceeding to continue, modify, or terminate
the guardianship and the opportunity to appear before the court to
express the ward's preferences and concerns regarding whether the
guardianship should be continued, modified, or terminated;
(12) to have a court investigator or[,] guardian ad
litem[, or attorney ad litem] appointed by the court to investigate
a complaint received by the court from the ward or any person about
the guardianship;
(13) to participate in social, religious, and
recreational activities, training, employment, education,
habilitation, and rehabilitation of the ward's choice in the most
integrated setting;
(14) to self-determination in the substantial
maintenance, disposition, and management of real and personal
property after essential living expenses and health needs are met,
including the right to receive notice and object about the
substantial maintenance, disposition, or management of clothing,
furniture, vehicles, and other personal effects;
(15) to personal privacy and confidentiality in
personal matters, subject to state and federal law;
(16) to unimpeded, private, and uncensored
communication and visitation with persons of the ward's choice,
except that if the guardian determines that certain communication
or visitation causes substantial harm to the ward:
(A) the guardian may limit, supervise, or
restrict communication or visitation, but only to the extent
necessary to protect the ward from substantial harm; and
(B) the ward may request a hearing to remove any
restrictions on communication or visitation imposed by the guardian
under Paragraph (A);
(17) to petition the court and retain counsel of the
ward's choice who holds a certificate required by Subchapter E,
Chapter 1054, to represent the ward's interest for capacity
restoration, modification of the guardianship, the appointment of a
different guardian, or for other appropriate relief under this
subchapter, including a transition to a supported decision-making
agreement, except as limited by Section 1054.006;
(18) to vote in a public election, marry, and retain a
license to operate a motor vehicle, unless restricted by the court;
(19) to personal visits from the guardian or the
guardian's designee at least once every three months, but more
often, if necessary, unless the court orders otherwise;
(20) to be informed of the name, address, phone
number, and purpose of Disability Rights Texas, an organization
whose mission is to protect the rights of, and advocate for, persons
with disabilities, and to communicate and meet with representatives
of that organization;
(21) to be informed of the name, address, phone
number, and purpose of an independent living center, an area agency
on aging, an aging and disability resource center, and the local
mental health and intellectual and developmental disability
center, and to communicate and meet with representatives from these
agencies and organizations;
(22) to be informed of the name, address, phone
number, and purpose of the Judicial Branch Certification Commission
and the procedure for filing a complaint against a certified
guardian;
(23) to contact the Department of Family and
Protective Services to report abuse, neglect, exploitation, or
violation of personal rights without fear of punishment,
interference, coercion, or retaliation; and
(24) to have the guardian, on appointment and on
annual renewal of the guardianship, explain the rights delineated
in this subsection in the ward's native language, or preferred mode
of communication, and in a manner accessible to the ward.
SECTION 3. Sections 1153.001(a) and (c), Estates Code, are
amended to read as follows:
(a) Within one month after receiving letters of
guardianship, a guardian of an estate shall provide notice
requiring each person who has a claim against the estate to present
the claim within the period prescribed by law. The notice must be:
(1) published in a newspaper of general circulation
[printed] in the county in which the letters were issued; and
(2) sent to the comptroller by certified or registered
mail, if the ward remitted or should have remitted taxes
administered by the comptroller.
(c) If there is no [a] newspaper of general circulation [is
not printed] in the county in which the letters of guardianship were
issued, the notice must be posted and the return made and filed as
otherwise required by this title.
SECTION 4. Section 1155.054(d), Estates Code, is amended to
read as follows:
(d) If the court finds that a party in a guardianship
proceeding acted in bad faith or without just cause in prosecuting
or objecting to an application in the proceeding, the court may
order [require] the party to reimburse the ward's estate for all or
part of the attorney's fees awarded under this section and shall
issue judgment against the party and in favor of the estate for the
amount of attorney's fees ordered [required] to be reimbursed to
the estate.
SECTION 5. Section 1163.005(a), Estates Code, is amended to
read as follows:
(a) The guardian of the estate shall attach to an account
the guardian's affidavit stating:
(1) that the account contains a correct and complete
statement of the matters to which the account relates;
(2) that the guardian has paid the bond premium for the
next accounting period;
(3) that the guardian has filed all tax returns of the
ward due during the accounting period;
(4) that the guardian has paid all taxes the ward owed
during the accounting period, the amount of the taxes, the date the
guardian paid the taxes, and the name of the governmental entity to
which the guardian paid the taxes; and
(5) if the guardian is a private professional
guardian, a guardianship program, or the Health and Human Services
Commission [Department of Aging and Disability Services], whether
the guardian or an individual certified under Subchapter C, Chapter
155 [111], Government Code, who is providing guardianship services
to the ward and who is swearing to the account on the guardian's
behalf, is or has been the subject of an investigation conducted by
the Judicial Branch [Guardianship] Certification Commission
[Board] during the accounting period.
SECTION 6. Section 1163.101(c), Estates Code, is amended to
read as follows:
(c) The guardian of the person shall file a sworn affidavit
that contains:
(1) the guardian's current name, address, and
telephone number;
(2) the ward's date of birth and current name, address,
telephone number, and age;
(3) a description of the type of home in which the ward
resides, which shall be described as:
(A) the ward's own home;
(B) a nursing home;
(C) a guardian's home;
(D) a foster home;
(E) a boarding home;
(F) a relative's home, in which case the
description must specify the relative's relationship to the ward;
(G) a hospital or medical facility; or
(H) another type of residence;
(4) statements indicating:
(A) the length of time the ward has resided in the
present home;
(B) the reason for a change in the ward's
residence, if a change in the ward's residence has occurred in the
past year;
(C) the date the guardian most recently saw the
ward;
(D) how frequently the guardian has seen the ward
in the past year;
(E) whether the guardian has possession or
control of the ward's estate;
(F) whether the ward's mental health has
improved, deteriorated, or remained unchanged during the past year,
including a description of the change if a change has occurred;
(G) whether the ward's physical health has
improved, deteriorated, or remained unchanged during the past year,
including a description of the change if a change has occurred;
(H) whether the ward has regular medical care;
and
(I) the ward's treatment or evaluation by any of
the following persons during the past year, including the person's
name and a description of the treatment:
(i) a physician;
(ii) a psychiatrist, psychologist, or other
mental health care provider;
(iii) a dentist;
(iv) a social or other caseworker; or
(v) any other individual who provided
treatment;
(5) a description of the ward's activities during the
past year, including recreational, educational, social, and
occupational activities, or a statement that no activities were
available or that the ward was unable or refused to participate in
activities;
(6) the guardian's evaluation of:
(A) the ward's living arrangements as excellent,
average, or below average, including an explanation if the
conditions are below average;
(B) whether the ward is content or unhappy with
the ward's living arrangements; and
(C) unmet needs of the ward;
(7) a statement indicating whether the guardian's
power should be increased, decreased, or unaltered, including an
explanation if a change is recommended;
(8) a statement indicating that the guardian has paid
the bond premium for the next reporting period;
(9) if the guardian is a private professional
guardian, a guardianship program, or the Health and Human Services
Commission [Department of Aging and Disability Services], whether
the guardian or an individual certified under Subchapter C, Chapter
155, Government Code, who is providing guardianship services to the
ward and who is filing the affidavit on the guardian's behalf, is or
has been the subject of an investigation conducted by the Judicial
Branch [Guardianship] Certification Commission [Board] during the
preceding year; and
(10) any additional information the guardian desires
to share with the court regarding the ward, including:
(A) whether the guardian has filed for emergency
detention of the ward under Subchapter A, Chapter 573, Health and
Safety Code; and
(B) if applicable, the number of times the
guardian has filed for emergency detention and the dates of the
applications for emergency detention.
SECTION 7. Subchapter B, Chapter 1301, Estates Code, is
amended by adding Section 1301.0511 to read as follows:
Sec. 1301.0511. NOTICE REQUIRED FOR APPLICATION FOR
CREATION OF TRUST; CITATION OF APPLICANT NOT REQUIRED. (a) On the
filing of an application for creation of a management trust and
except as provided by Subsection (d), notice shall be issued and
served in the manner provided by Subchapter C, Chapter 1051, for the
issuance and service of notice on the filing of an application for
guardianship.
(b) It is not necessary to serve a citation on a person who
files an application for the creation of a management trust under
this subchapter or for that person to waive the issuance and
personal service of citation.
(c) If the person for whom an application for creation of a
management trust is filed is a ward, the sheriff or other officer,
in addition to serving the persons described by Section 1051.103,
shall personally serve each guardian of the ward with citation to
appear and answer the application.
(d) Notice under this section is not required if a
proceeding for the appointment of a guardian is pending for the
person for whom an application for creation of a management trust is
filed.
SECTION 8. Section 1301.101(a), Estates Code, is amended to
read as follows:
(a) Except as provided by Subsection (c), a management trust
created for a ward or incapacitated person 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 spend
for the health, education, maintenance, or support of the person
for whom the trust is created;
(3) the trust income that the trustee does not
disburse under Subdivision (2) must be added to the trust
principal;
(4) a trustee that is a corporate fiduciary serves
without giving a bond; [and]
(5) subject to the court's approval and Subsection
(b), a trustee is entitled to receive reasonable compensation for
services the trustee provides to the person for whom the trust is
created as the person's trustee; and
(6) the trust terminates:
(A) except as provided by Paragraph (B), if the
person for whom the trust is created is a minor:
(i) on the earlier of:
(a) the person's death; or
(b) the person's 18th birthday; or
(ii) on the date provided by court order,
which may not be later than the person's 25th birthday;
(B) if the person for whom the trust is created is
a minor and is also incapacitated for a reason other than being a
minor:
(i) on the person's death; or
(ii) when the person regains capacity; or
(C) if the person for whom the trust is created is
not a minor:
(i) according to the terms of the trust;
(ii) on the date the court determines that
continuing the trust is no longer in the person's best interests,
subject to Section 1301.202(c); or
(iii) on the person's death.
SECTION 9. Section 1301.154(b), Estates Code, is amended to
read as follows:
(b) The trustee of a management trust created for a ward
shall provide a copy of the annual account to each [the] guardian of
the ward [ward's estate or person].
SECTION 10. Section 1301.203, Estates Code, is amended by
amending Subsection (a) and adding Subsection (a-1) to read as
follows:
(a) Except as provided by Subsection (a-1), if [If] the
person for whom a management trust is created is a minor, the trust
terminates on:
(1) the earlier of:
(A) the person's death; or
(B) the person's 18th birthday; or
(2) the date provided by court order, which may not be
later than the person's 25th birthday.
(a-1) If the person for whom a management trust is created
is a minor and is also incapacitated for a reason other than being a
minor, the trust terminates:
(1) on the person's death; or
(2) when the person regains capacity.
SECTION 11. Sections 1355.002(b), (c), (d), (e), and (f),
Estates Code, are amended to read as follows:
(b) This section applies only to a nonresident creditor who
is:
(1) a nonresident minor and has a nonresident guardian
of the estate appointed by a foreign court;
(2) [,] a nonresident person who is adjudged by a
foreign court [of competent jurisdiction] to be incapacitated and
has a nonresident guardian of the estate appointed by that
court;[,] or
(3) the nonresident former ward of a guardianship
terminated under Chapter 1204 who has no legal guardian qualified
in this state.
(c) A debtor in this state who owes money to a nonresident
creditor to whom this section applies may pay the money:
(1) to the creditor's guardian of the estate qualified
in the domiciliary jurisdiction; or
(2) to the county clerk of:
(A) any county in this state in which real
property owned by the creditor is located; or
(B) if the creditor is not known to own real
property in this state, the county in which the debtor resides.
(d) A payment made under this section is for the nonresident
creditor's account and for the nonresident creditor's use and
benefit.
(e) A receipt for payment signed by the county clerk is
binding on the nonresident creditor as of the date and to the extent
of payment if the receipt states:
(1) the creditor's name; and
(2) the creditor's post office address, if the address
is known.
(f) A county clerk who receives a payment under Subsection
(c) for a nonresident creditor shall handle the money in the same
manner as provided for a payment to the account of a resident
creditor under Sections 1355.001, 1355.051, 1355.052, 1355.102,
1355.103, and 1355.104. Those sections apply to the handling and
disposition of money or any increase, dividend, or income paid to
the clerk for the use, benefit, and account of the nonresident
creditor to whom this section applies.
SECTION 12. Section 1355.105, Estates Code, is amended to
read as follows:
Sec. 1355.105. WITHDRAWAL OF MONEY BY CREDITOR OR
CREDITOR'S HEIR, [OR] REPRESENTATIVE, OR GUARDIAN. (a) On
presentation to the court clerk of an order of a county or probate
court of the county in which the money is held, money that is not
withdrawn by an authorized person as provided by this chapter may be
withdrawn by:
(1) the creditor, after termination of the creditor's
disability;
(2) a subsequent personal representative of the
creditor; [or]
(3) the creditor's heirs; or
(4) a nonresident guardian of the estate appointed by
a foreign court for a creditor who is:
(A) a nonresident minor; or
(B) a nonresident person who is adjudged to be
incapacitated.
(b) Except as provided by Subsection (b-1), a [A] withdrawal
under Subsection (a) may be made at any time and without a special
bond for that purpose.
(b-1) A court may require a nonresident guardian of the
estate of a creditor who is a nonresident minor or nonresident
incapacitated person as described by Subsection (a)(4) to provide
proof that the nonresident guardian of the estate gave an adequate
bond in the foreign jurisdiction if the court determines that it is
in the nonresident minor's or nonresident incapacitated person's
best interest.
(c) The order presented under Subsection (a) must direct the
court clerk to deliver the money to:
(1) the creditor;
(2) [,] the creditor's personal representative;
(3) [, or] the creditor's heirs named in the order; or
(4) if the creditor is a nonresident minor or
nonresident person who is adjudged to be incapacitated, the
creditor's nonresident guardian of the estate.
(d) Before the court may issue an order under this section,
the person's identity and credentials must be proved to the court's
satisfaction. For purposes of this subsection, a nonresident
guardian of the estate described by Subsection (c)(4) must present
to the court exemplified copies of the order of a foreign court
appointing the guardian and current letters of guardianship issued
in the foreign jurisdiction.
SECTION 13. (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) The changes in law made by this Act to Section 1021.001,
Estates Code, apply only to an action filed on or after the
effective date of this Act. An action filed before the effective
date of this Act is governed by the law in effect on the date the
action was filed, and the former law is continued in effect for that
purpose.
(c) The changes in law made by this Act to Section
1155.054(d), 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.
(d) Section 1301.0511, Estates Code, as added by this Act,
applies only to an application for creation of a management trust
filed on or after the effective date of this Act. An application
for creation 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.
(e) The changes in law made by this Act to Sections 1301.101
and 1301.203, Estates Code, apply only to an application for the
creation or modification of a management trust filed on or after the
effective date of this Act. An application for the creation or
modification 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.
(f) The changes in law made by this Act to Section 1355.105,
Estates Code, apply only to an application for an order for the
delivery of money that is filed on or after the effective date of
this Act. An application for an order for the delivery of money
that is 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.