Bill Text: TX SB1624 | 2023-2024 | 88th Legislature | Enrolled
Bill Title: Relating to guardianships and services for incapacitated persons and to the emergency detention of certain persons with mental illness.
Spectrum: Slight Partisan Bill (Democrat 2-1)
Status: (Passed) 2023-06-18 - Effective on 9/1/23 [SB1624 Detail]
Download: Texas-2023-SB1624-Enrolled.html
S.B. No. 1624 |
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relating to guardianships and services for incapacitated persons | ||
and to the emergency detention of certain persons with mental | ||
illness. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 1054.001, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1054.001. APPOINTMENT OF ATTORNEY AD LITEM IN | ||
PROCEEDING FOR APPOINTMENT OF GUARDIAN. In a proceeding under this | ||
title for the appointment of a guardian, the court shall appoint an | ||
attorney ad litem to represent the proposed ward's interests, | ||
including the proposed ward's expressed wishes. | ||
SECTION 2. Section 1054.003, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1054.003. ACCESS TO RECORDS. An attorney ad litem | ||
appointed under Section 1054.001 or an attorney retained by a ward | ||
or proposed ward under Section 1054.006 or 1202.103 shall be | ||
provided copies of all of the current records in the guardianship | ||
case. The attorney ad litem or retained attorney may have access to | ||
all of the proposed ward's relevant medical, psychological, and | ||
intellectual testing records. | ||
SECTION 3. Section 1054.006, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1054.006. REPRESENTATION OF WARD OR PROPOSED WARD BY | ||
ATTORNEY. (a) A ward or proposed ward [ |
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at any time retain an attorney who holds a certificate required by | ||
Subchapter E to represent the ward's or proposed ward's [ |
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interests, including the ward's or proposed ward's expressed | ||
wishes, in a guardianship proceeding, including a proceeding | ||
involving the complete restoration of the ward's capacity or | ||
modification of the ward's guardianship, instead of having those | ||
interests represented by an attorney ad litem appointed under | ||
Section 1054.001, Section 1202.101, or another provision of this | ||
title[ |
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[ |
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[ |
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(b) Subject to Subsection (c), if a ward or proposed ward | ||
has retained an attorney under Subsection (a), [ |
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[ |
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1054.001, Section 1202.101, or any other provision of this title | ||
that requires the court to appoint an attorney ad litem to represent | ||
the interests of a ward or proposed ward and appoint a ward or a | ||
proposed ward's retained counsel. | ||
(c) On the motion of a party to a guardianship proceeding or | ||
on the court's own motion, the court may hold a hearing on the ward's | ||
or proposed ward's capacity to retain an attorney under Subsection | ||
(a). The burden of proof is on the party motioning the court. If | ||
the court finds by a preponderance of evidence that the ward or | ||
proposed ward does not understand the guardianship proceeding or | ||
the purpose for which the attorney was retained, the court may | ||
appoint an attorney ad litem under Section 1054.001, Section | ||
1202.101, or another provision of this title. | ||
(d) An attorney retained by a ward or proposed ward under | ||
this section must represent the ward's or proposed ward's | ||
interests, including the ward's or proposed ward's expressed | ||
wishes. | ||
SECTION 4. Section 1054.007, Estates Code, is amended by | ||
adding Subsection (c) to read as follows: | ||
(c) An attorney ad litem appointed for a ward or proposed | ||
ward under this title shall represent the ward's or proposed ward's | ||
interests, including the ward's or proposed ward's expressed | ||
wishes. | ||
SECTION 5. Section 1054.051, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1054.051. APPOINTMENT OF GUARDIAN AD LITEM IN | ||
GUARDIANSHIP PROCEEDING. (a) Subject to Subsection (b), the [ |
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judge may appoint a guardian ad litem to represent the interests of | ||
an incapacitated person in a guardianship proceeding. | ||
(b) A person appointed as a guardian ad litem may not be: | ||
(1) an interested person, as defined by Section | ||
1002.018(1); or | ||
(2) an attorney ad litem appointed for the | ||
guardianship proceeding except as provided by Section 1054.052, | ||
1202.101, or 1203.051. | ||
SECTION 6. Subchapter D, Chapter 1054, Estates Code, is | ||
amended by adding Section 1054.157 to read as follows: | ||
Sec. 1054.157. REQUIRED TRAINING. At least once every two | ||
years, a court investigator and a court visitor shall complete two | ||
hours of training, including one hour of training on alternatives | ||
to guardianship and supports and services available to a proposed | ||
ward in accordance with Section 22.0133, Government Code. | ||
SECTION 7. Section 1101.103, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1101.103. DETERMINATION OF INCAPACITY OF CERTAIN | ||
ADULTS: PHYSICIAN OR PSYCHOLOGIST EXAMINATION. (a) 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: | ||
(1) a physician licensed in this state, if the | ||
proposed ward's alleged incapacity results from a physical | ||
condition or mental condition; or | ||
(2) a psychologist licensed in this state or certified | ||
by the Health and Human Services Commission to perform the | ||
examination, in accordance with rules adopted by the executive | ||
commissioner of the commission governing examinations of that kind, | ||
if the proposed ward's alleged incapacity results from a mental | ||
condition. | ||
(a-1) The physician or psychologist who provides the letter | ||
or certificate under Subsection (a) must: | ||
(1) have experience examining individuals with the | ||
physical or mental condition resulting in the proposed ward's | ||
alleged incapacity; or | ||
(2) have an established patient-provider relationship | ||
with the proposed ward. | ||
(a-2) The letter or certificate required by Subsection (a) | ||
must be [ |
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(1) dated not earlier than the 120th day before the | ||
date the application is filed; and | ||
(2) based on an examination the physician or | ||
psychologist performed not earlier than the 120th day before the | ||
date the application is filed. | ||
(b) A [ |
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(1) describe the nature, degree, and severity of the | ||
proposed ward's incapacity, including any functional deficits | ||
regarding the proposed ward's ability to: | ||
(A) handle business and managerial matters; | ||
(B) manage financial matters; | ||
(C) operate a motor vehicle; | ||
(D) make personal decisions regarding residence, | ||
voting, and marriage; and | ||
(E) consent to medical, dental, psychological, | ||
or psychiatric treatment; | ||
(2) in providing a description under Subdivision (1) | ||
regarding the proposed ward's ability to operate a motor vehicle | ||
and make personal decisions regarding voting, state whether in the | ||
physician's opinion the proposed ward: | ||
(A) has the mental capacity to vote in a public | ||
election; and | ||
(B) has the ability to safely operate a motor | ||
vehicle; | ||
(3) provide an evaluation of the proposed ward's | ||
physical condition and mental functioning and summarize the | ||
proposed ward's medical history if reasonably available; | ||
(3-a) in providing an evaluation under Subdivision | ||
(3), state whether improvement in the proposed ward's physical | ||
condition and mental functioning is possible and, if so, state the | ||
period after which the proposed ward should be reevaluated to | ||
determine whether a guardianship continues to be necessary; | ||
(4) state how or in what manner the proposed ward's | ||
ability to make or communicate responsible decisions concerning | ||
himself or herself is affected by the proposed ward's physical or | ||
mental health, including the proposed ward's ability to: | ||
(A) understand or communicate; | ||
(B) recognize familiar objects and individuals; | ||
(C) solve problems; | ||
(D) reason logically; and | ||
(E) administer to daily life activities with and | ||
without supports and services; | ||
(5) state whether any current medication affects the | ||
proposed ward's demeanor or the proposed ward's ability to | ||
participate fully in a court proceeding; | ||
(6) describe the precise physical and mental | ||
conditions underlying a diagnosis of a mental disability, and state | ||
whether the proposed ward would benefit from supports and services | ||
that would allow the individual to live in the least restrictive | ||
setting; | ||
(6-a) state whether a guardianship is necessary for | ||
the proposed ward and, if so, whether specific powers or duties of | ||
the guardian should be limited if the proposed ward receives | ||
supports and services; and | ||
(7) include any other information required by the | ||
court. | ||
(b-1) Consistent with the scope of practice of a | ||
psychologist under Chapter 501, Occupations Code, a letter or | ||
certificate from a psychologist must include the information | ||
required under Subsection (b) only in relation to the proposed | ||
ward's mental capacity. | ||
(c) If the court determines it is necessary, the court may | ||
appoint a physician or psychologist [ |
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examine the proposed ward. The court must make its determination | ||
with respect to the necessity for a physician's or psychologist's | ||
examination of the proposed ward at a hearing held for that purpose. | ||
Not later than the fourth day before the date of the hearing, the | ||
applicant shall give to the proposed ward and the proposed ward's | ||
attorney ad litem written notice specifying the purpose and the | ||
date and time of the hearing. | ||
(d) A physician or psychologist who examines the 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 | ||
proposed ward a written letter or certificate from: | ||
(1) the physician that complies with the requirements | ||
of Subsections (a), (a-1), (a-2), and (b); or | ||
(2) the psychologist that complies with the | ||
requirements of Subsections (a), (a-1), (a-2), and (b-1). | ||
SECTION 8. Section 1102.002, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1102.002. ESTABLISHMENT OF PROBABLE CAUSE FOR | ||
INVESTIGATION. To establish probable cause under Section 1102.001, | ||
the court may require: | ||
(1) an information letter about the person believed to | ||
be incapacitated that is submitted by an interested person and | ||
satisfies the requirements of Section 1102.003; or | ||
(2) a written letter or certificate from a physician | ||
or psychologist who has examined the person believed to be | ||
incapacitated that satisfies the requirements of Section 1101.103, | ||
except that the letter must be: | ||
(A) dated not earlier than the 120th day before | ||
the date of the appointment of a guardian ad litem or court | ||
investigator under Section 1102.001; and | ||
(B) based on an examination the physician or | ||
psychologist performed not earlier than the 120th day before that | ||
date. | ||
SECTION 9. 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 | ||
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; | ||
(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; [ |
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(25) to make decisions related to sexual assault | ||
crisis services, including consenting to a forensic medical | ||
examination and treatment, authorizing the collection of forensic | ||
evidence, consenting to the release of evidence contained in an | ||
evidence collection kit and disclosure of related confidential | ||
information, and receiving counseling and other support services; | ||
and | ||
(26) to have private communications with the ward's | ||
physicians or other medical professionals, unless the court, after | ||
a hearing requested by the ward's guardian, orders the private | ||
communications to be limited due to: | ||
(A) the risk of substantial harm to the ward; or | ||
(B) the communications being unduly burdensome | ||
to the physician or medical professional. | ||
SECTION 10. Section 1163.101, Estates Code, is amended by | ||
amending Subsection (c) and adding Subsection (d) 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; | ||
[ |
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(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; and | ||
(J) supports and services the ward has received | ||
or is currently receiving, as described by Subsection (d); | ||
(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, 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 Certification | ||
Commission 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. | ||
(d) The statements in the sworn affidavit regarding the | ||
ward's supports and services under Subsection (c)(4)(J) must | ||
include: | ||
(1) information regarding actions the guardian is | ||
taking to encourage the development of the ward's maximum | ||
self-reliance and independence; | ||
(2) a list of all the supports and services the ward is | ||
currently receiving, including whether the ward: | ||
(A) has a representative payee; | ||
(B) receives services from a local mental health | ||
authority or local intellectual and developmental disability | ||
authority; | ||
(C) receives any supports and services under | ||
Medicaid, including under a Medicaid waiver program authorized | ||
under Section 1915(c) of the federal Social Security Act (42 U.S.C. | ||
Section 1396n); and | ||
(D) receives any supports and services | ||
informally; | ||
(3) where the ward receives the supports and services | ||
described by Subdivision (2); | ||
(4) who provides the supports and services described | ||
by Subdivision (2); | ||
(5) a list of the supports and services the ward | ||
previously received or attempted to receive and why the support or | ||
service was discontinued or not received; and | ||
(6) the guardian's opinion on whether the ward has the | ||
capacity or sufficient capacity with supports and services for | ||
complete restoration of the ward's capacity or modification of the | ||
guardianship under Chapter 1202 or the reasons why the ward does not | ||
have the capacity or sufficient capacity with supports and services | ||
for complete restoration of the ward's capacity or modification of | ||
the guardianship under Chapter 1202. | ||
SECTION 11. Section 1201.052, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1201.052. ANNUAL DETERMINATION; HEARING. (a) To | ||
determine whether a guardianship should be continued, modified, or | ||
terminated, the court in which the guardianship proceeding is | ||
pending: | ||
(1) shall review annually each guardianship in which | ||
the application to create the guardianship was filed after | ||
September 1, 1993; and | ||
(2) may review annually any other guardianship. | ||
(b) A court in which the guardianship proceeding is pending | ||
may conduct a hearing under this section. | ||
SECTION 12. Section 1201.053, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1201.053. METHOD OF DETERMINATION. (a) In reviewing a | ||
guardianship under Section 1201.052, a statutory probate court | ||
shall review any [ |
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(1) [ |
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(A) a court investigator under Section 1054.153 | ||
or 1202.054; | ||
(B) a guardian ad litem under Section 1202.054; | ||
or | ||
(C) a court visitor under Section 1054.104; | ||
(2) [ |
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[ |
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Subchapter A, Chapter 1163; and | ||
(3) [ |
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Chapter 1163. | ||
(a-1) Unless a court orders that a report be completed more | ||
frequently, if a report described by Subsection (a)(1) is required | ||
under Section 1054.153 or 1054.104, the court investigator or court | ||
visitor, as appropriate, shall prepare an additional report | ||
described by Subsection (a)(1) every three years beginning on the | ||
date the original letters of guardianship are issued. | ||
(a-2) Before preparing an additional report under | ||
Subsection (a-1), the court investigator or court visitor, as | ||
appropriate, shall: | ||
(1) meet with the ward in person, using necessary and | ||
appropriate communication supports; | ||
(2) present the bill of rights for wards under Section | ||
1151.351 to the ward in the ward's preferred language and manner of | ||
communication; | ||
(3) document the ward's statement of guardianship, as | ||
described by Subsection (a-3); and | ||
(4) document the supports and services currently | ||
available to the ward and whether the guardian's rights and powers | ||
can be limited because a less restrictive alternative to | ||
guardianship is appropriate. | ||
(a-3) The ward's statement of guardianship: | ||
(1) must include: | ||
(A) whether the ward desires a full restoration | ||
of the ward's capacity or modification of the ward's guardianship; | ||
and | ||
(B) any other information the ward wishes to | ||
share with the court; and | ||
(2) may be in the form of: | ||
(A) a written statement made by the ward and | ||
filed with the court by the court investigator or court visitor | ||
preparing the report; | ||
(B) a verbal statement made to the court | ||
investigator or court visitor, as applicable, that is documented in | ||
writing and filed with the court by the person receiving the | ||
statement; or | ||
(C) a verbal or written statement made by the | ||
ward during a hearing either in person or remotely through other | ||
means. | ||
(b) A court that is not a statutory probate court: | ||
(1) shall review: | ||
(A) any account prepared under Subchapter A, | ||
Chapter 1163; and | ||
(B) any report prepared under Subchapter C, | ||
Chapter 1163 or Subsection (a-1); and | ||
(2) may use any other method to review a guardianship | ||
under Section 1201.052 that is determined appropriate by the court | ||
according to the court's caseload and available resources. | ||
SECTION 13. Section 1202.101, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1202.101. APPOINTMENT OF ATTORNEY AD LITEM. (a) | ||
Unless the ward retains an attorney under Section 1202.103, the | ||
[ |
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in a proceeding for the complete restoration of the ward's capacity | ||
or for the modification of the ward's guardianship. Unless | ||
otherwise provided by the court, the attorney ad litem shall | ||
represent the ward only for purposes of the restoration or | ||
modification proceeding. The attorney ad litem shall represent the | ||
ward's interests, including the ward's expressed wishes. | ||
(b) The attorney ad litem has an attorney-client | ||
relationship with the ward the attorney ad litem is appointed to | ||
represent under this section. | ||
SECTION 14. The heading to Section 1202.152, Estates Code, | ||
is amended to read as follows: | ||
Sec. 1202.152. [ |
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REQUIRED. | ||
SECTION 15. Section 1202.152, Estates Code, is amended by | ||
amending Subsections (a) and (c) and adding Subsections (a-1), | ||
(a-2), and (a-3) to read as follows: | ||
(a) Subject to Section 1202.1521, the applicant must | ||
present to the court and the [ |
||
letter or certificate as evidence of capacity, or sufficient | ||
capacity with supports and services, at a hearing under Section | ||
1202.151 from: | ||
(1) a physician licensed in this state, if the ward's | ||
incapacity resulted from a physical condition or mental condition; | ||
or | ||
(2) a psychologist licensed in this state or certified | ||
by the Health and Human Services Commission to perform the | ||
examination, in accordance with rules adopted by the executive | ||
commissioner of the commission governing examinations of that kind, | ||
if the ward's incapacity resulted from a mental condition. | ||
(a-1) The physician or psychologist who provides the letter | ||
or certificate under Subsection (a) must: | ||
(1) have experience examining individuals with the | ||
physical or mental condition resulting in the ward's incapacity; or | ||
(2) have an established patient-provider relationship | ||
with the ward. | ||
(a-2) The letter or certificate required by Subsection (a) | ||
must be: | ||
(1) signed by the physician or psychologist; and | ||
(2) dated: | ||
(A) not earlier than the 120th day before the | ||
date the application was filed; or | ||
(B) after the date the application was filed but | ||
before the date of the hearing. | ||
(a-3) The court may consider the following evidence of | ||
capacity, or sufficient capacity with supports and services, at a | ||
hearing under Section 1202.151: | ||
(1) a statement from a representative of the local | ||
mental health authority or the local intellectual and developmental | ||
disability authority listing services received by the ward and the | ||
effectiveness of those services; | ||
(2) medical records; | ||
(3) affidavits of treating professionals regarding | ||
the effectiveness of supports and services the ward is receiving; | ||
(4) documentation from a health care provider | ||
providing supports or services to the ward under Medicaid, | ||
including a Medicaid waiver program authorized under Section | ||
1915(c) of the federal Social Security Act (42 U.S.C. Section | ||
1396n); | ||
(5) an affidavit of the ward's employer or day | ||
habilitation program manager regarding the ward's ability to | ||
perform the necessary tasks; | ||
(6) documentation from the United States Social | ||
Security Administration identifying the ward's representative | ||
payee; or | ||
(7) any other evidence demonstrating the ward's | ||
capacity [ |
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(c) If the court determines it is necessary, the court shall | ||
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examination of the ward. The physician or psychologist must be | ||
chosen by the ward, provided, however, that if the ward makes no | ||
choice, the ward's physician or psychologist of choice is not | ||
available, or additional information is needed or required after an | ||
examination by the ward's physician or psychologist of choice, the | ||
court may appoint the necessary physicians or psychologists to | ||
examine the ward. A physician appointed by the court must examine | ||
the ward in the same manner and to the same extent as a ward is | ||
examined by a physician under Section 1101.103 or 1101.104. | ||
SECTION 16. Subchapter D, Chapter 1202, Estates Code, is | ||
amended by adding Section 1202.1521 to read as follows: | ||
Sec. 1202.1521. PHYSICIAN'S LETTER OR CERTIFICATE: | ||
REQUIREMENT IF ALLEGED INCAPACITY BASED ON INTELLECTUAL | ||
DISABILITY. If an intellectual disability is the basis of a ward's | ||
alleged incapacity, the written letter or certificate presented | ||
under Section 1202.152(a), instead of containing the information | ||
required by Section 1202.152(b), must: | ||
(1) state, in the physician's or psychologist's | ||
opinion, whether the ward has the capacity, or sufficient capacity | ||
with supports and services, to do any of the activities listed in | ||
Section 1202.152(b)(1); | ||
(2) state how or in what manner the ward's ability to | ||
make or communicate reasonable decisions concerning himself or | ||
herself is affected by the ward's mental capacity; and | ||
(3) include any other information required by the | ||
court. | ||
SECTION 17. Subchapter A, Chapter 22, Government Code, is | ||
amended by adding Section 22.0133 to read as follows: | ||
Sec. 22.0133. JUDICIAL, COURT INVESTIGATOR, AND COURT | ||
VISITOR TRAINING RELATED TO GUARDIANSHIPS. The supreme court, in | ||
consultation with the Judicial Branch Certification Commission, | ||
shall ensure that at least one hour of training related to | ||
alternatives to guardianships and supports and services that are | ||
available to a proposed ward is provided to each judge with | ||
jurisdiction to hear a guardianship proceeding, each court | ||
investigator appointed under Section 1054.156, Estates Code, and | ||
each court visitor appointed under Section 1054.103, Estates Code, | ||
at least once every two years. | ||
SECTION 18. Section 573.012, Health and Safety Code, is | ||
amended by amending Subsections (a), (e), and (h) and adding | ||
Subsections (h-2) and (h-3) to read as follows: | ||
(a) Except as provided by Subsection (h), an applicant for | ||
emergency detention must present the application personally to a | ||
judge or magistrate. The judge or magistrate shall examine the | ||
application and may interview the applicant. Except as provided by | ||
Subsections [ |
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probate jurisdiction by administrative order may provide that the | ||
application must be: | ||
(1) presented personally to the court; or | ||
(2) retained by court staff and presented to another | ||
judge or magistrate as soon as is practicable if the judge of the | ||
court is not available at the time the application is presented. | ||
(e) A person apprehended under this section who is not | ||
physically located in a mental health facility at the time the | ||
warrant is issued under Subsection (h-1) shall be transported for a | ||
preliminary examination in accordance with Section 573.021 to: | ||
(1) the nearest appropriate inpatient mental health | ||
facility; or | ||
(2) a mental health facility deemed suitable by the | ||
local mental health authority, if an appropriate inpatient mental | ||
health facility is not available. | ||
(h) A judge or magistrate shall [ |
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who is a physician to present an application by: | ||
(1) e-mail with the application attached as a secure | ||
document in a portable document format (PDF); or | ||
(2) another secure electronic means, including: | ||
(A) satellite transmission; | ||
(B) closed-circuit television transmission; or | ||
(C) any other method of two-way electronic | ||
communication that: | ||
(i) is secure; | ||
(ii) is available to the judge or | ||
magistrate; and | ||
(iii) provides for a simultaneous, | ||
compressed full-motion video and interactive communication of | ||
image and sound between the judge or magistrate and the applicant. | ||
(h-2) A facility may detain a person who is physically | ||
located in the facility to perform a preliminary examination in | ||
accordance with Section 573.021 if: | ||
(1) a judge or magistrate transmits a warrant to the | ||
facility under Subsection (h-1) for the detention of the person; | ||
and | ||
(2) the person is not under an order under this chapter | ||
or Chapter 574. | ||
(h-3) The Office of Court Administration of the Texas | ||
Judicial System shall develop and implement a process for an | ||
applicant for emergency detention to electronically present the | ||
application under Subsection (h) and for a judge or magistrate to | ||
electronically transmit a warrant under Subsection (h-1). | ||
SECTION 19. Sections 1202.054(b-1) and (d), Estates Code, | ||
are repealed. | ||
SECTION 20. (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) a guardianship proceeding that is pending or | ||
commenced on or after the effective date of this Act. | ||
(b) The changes in law made by this Act to Section 1202.152, | ||
Estates Code, apply only to a proceeding for the complete | ||
restoration of capacity 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. | ||
(c) The changes in law made by this Act to Section 1101.103, | ||
Estates Code, apply only to an application for the appointment of a | ||
guardian that is filed on or after the effective date of this Act. | ||
An application 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 21. (a) Not later than December 1, 2023, the Texas | ||
Supreme Court shall adopt the rules necessary to provide the | ||
training required under Section 22.0133, Government Code, as added | ||
by this Act. | ||
(b) Notwithstanding Section 22.0133, Government Code, as | ||
added by this Act, a judge who is in office on the effective date of | ||
this Act or a court investigator or court visitor described by | ||
Section 22.0133, Government Code, as added by this Act, who is | ||
appointed on or before the effective date of this Act must complete | ||
the training required by Section 22.0133, Government Code, as added | ||
by this Act, not later than December 1, 2025. | ||
SECTION 22. The changes in law made by this Act apply to an | ||
emergency detention under Chapter 573, Health and Safety Code, that | ||
begins on or after the effective date of this Act. An emergency | ||
detention under Chapter 573, Health and Safety Code, that begins | ||
before the effective date of this Act is governed by the law as it | ||
existed immediately before that date, and that law is continued in | ||
effect for that purpose. | ||
SECTION 23. As soon as practicable after the effective date | ||
of this Act, the Office of Court Administration of the Texas | ||
Judicial System shall develop the process as required by Section | ||
573.012(h-3), Health and Safety Code, as added by this Act. | ||
SECTION 24. This Act takes effect September 1, 2023. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I hereby certify that S.B. No. 1624 passed the Senate on | ||
May 2, 2023, by the following vote: Yeas 31, Nays 0; and that the | ||
Senate concurred in House amendment on May 27, 2023, by the | ||
following vote: Yeas 30, Nays 1. | ||
______________________________ | ||
Secretary of the Senate | ||
I hereby certify that S.B. No. 1624 passed the House, with | ||
amendment, on May 24, 2023, by the following vote: Yeas 134, | ||
Nays 4, one present not voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
Approved: | ||
______________________________ | ||
Date | ||
______________________________ | ||
Governor |