Bill Text: TX SB44 | 2023 | 88th Legislature 4th Special Session | Introduced
Bill Title: Relating to guardianships for persons who are incapacitated; changing a fee.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2023-11-16 - Filed [SB44 Detail]
Download: Texas-2023-SB44-Introduced.html
| By: Zaffirini | S.B. No. 44 | |
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| relating to guardianships for persons who are incapacitated; | ||
| changing a fee. | ||
| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
| SECTION 1. Section 1023.002(c), Estates Code, is amended to | ||
| read as follows: | ||
| (c) If it appears to the court at any time before the | ||
| guardianship is closed that the proceeding was commenced in a court | ||
| that did not have venue over the proceeding, the court shall, on the | ||
| application of any interested person, transfer the proceeding to | ||
| the proper county in the manner prescribed by Section 1023.006. | ||
| SECTION 2. Section 1023.004(a), Estates Code, is amended to | ||
| read as follows: | ||
| (a) On filing an application or on motion of a court to | ||
| transfer a guardianship to another county under Section 1023.002 or | ||
| 1023.003, the sureties on the bond of the guardian shall be cited by | ||
| a qualified delivery method [ |
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| cause why the guardianship should not be transferred. | ||
| SECTION 3. Section 1023.005(c), Estates Code, is amended to | ||
| read as follows: | ||
| (c) On receipt of an order described by Subsection (a), the | ||
| clerk of the court to which the guardianship is transferred | ||
| [ |
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| SECTION 4. Sections 1023.006(a), (b), (c), (d), (e), and | ||
| (g), Estates Code, are amended to read as follows: | ||
| (a) Not later than the 10th working day after the date an | ||
| order of transfer is signed under Section 1023.002 or 1023.005, the | ||
| clerk shall record any unrecorded papers of the guardianship | ||
| required to be recorded. On payment of the clerk's fee, the clerk | ||
| shall send, using the electronic filing system established under | ||
| Section 72.031, Government Code, to the county clerk of the county | ||
| to which the guardianship was ordered transferred: | ||
| (1) a transfer certificate and certified index of | ||
| transferred documents; | ||
| (2) a copy of each [ |
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| (3) a copy of the order of transfer signed by the | ||
| transferring court; | ||
| (4) a copy of the original papers filed in the | ||
| transferring court, including any papers previously received on | ||
| transfer from a court in another county; | ||
| (5) a copy of the transfer certificate and certified | ||
| index of transferred documents from each previous transfer, if | ||
| applicable; and | ||
| (6) a bill of any costs accrued in the transferring | ||
| court. | ||
| (b) The clerk of the transferring court shall use the | ||
| standardized transfer certificate and certified index of | ||
| transferred documents form developed by the Office of Court | ||
| Administration of the Texas Judicial System under Section 72.037, | ||
| Government Code, when transferring a proceeding under this section. | ||
| (c) The clerk of the transferring court shall keep a copy of | ||
| the documents transferred under Subsection (a), including | ||
| transferred pleadings, orders, and all other papers filed into the | ||
| case record. | ||
| (d) The clerk of the court to which the proceeding is | ||
| transferred shall, subject to Section 1023.005: | ||
| (1) accept documents transferred under Subsection | ||
| (a); | ||
| (2) docket the suit; and | ||
| (3) notify, using the electronic filing system | ||
| established under Section 72.031, Government Code, all parties, the | ||
| clerk of the transferring court, and, if appropriate, the | ||
| transferring court's local registry that the suit has been | ||
| docketed. | ||
| (e) The clerk of the transferee court shall physically or | ||
| electronically mark or stamp the transfer certificate and certified | ||
| index of transferred documents to evidence the date and time of | ||
| acceptance under Subsection (d), but may not physically or | ||
| electronically mark or stamp any other document transferred under | ||
| Subsection (a). | ||
| (g) The clerks of both the transferee and transferring | ||
| courts may each produce under Chapter 51, Government Code, | ||
| certified or uncertified copies of documents transferred under | ||
| Subsection (a) but must include a copy of the transfer certificate | ||
| and certified index of transferred documents with each document | ||
| produced. | ||
| SECTION 5. Chapter 1023, Estates Code, is amended by adding | ||
| Section 1023.0071 to read as follows: | ||
| Sec. 1023.0071. TRANSFER FEE. (a) The fee for filing a | ||
| guardianship case transferred from another county under this | ||
| chapter in which the guardian has previously been appointed and | ||
| qualified in accordance with this title is $45 payable to the clerk | ||
| of the court to which the case is transferred. No portion of this | ||
| fee may be sent to the state. | ||
| (b) A party may not be assessed any other filing fee by the | ||
| clerk of the court to which the guardianship is transferred in | ||
| connection with the filing and docketing of the transferred case. | ||
| (c) To the extent that this section conflicts with another | ||
| state statute, the Texas Rules of Civil Procedure, or other rules, | ||
| this section prevails. | ||
| SECTION 6. Section 1105.157, Estates Code, is amended by | ||
| amending Subsections (a) and (d) and adding Subsection (d-1) to | ||
| read as follows: | ||
| (a) Instead of giving a surety or sureties on a bond, or to | ||
| reduce the amount of a bond, the guardian of an estate may deposit | ||
| the guardian's own cash or securities acceptable to the court with: | ||
| (1) a financial institution as defined by Section | ||
| 201.101, Finance Code, that has its main office or a branch office | ||
| in this state; or | ||
| (2) the registry of the court, for which the clerk of | ||
| the court shall issue a receipt. | ||
| (d) A receipt issued by a depository under Subsection (c) or | ||
| a record of deposit to the registry of the court must be attached to | ||
| the guardian's bond and must be in substantially the following | ||
| form: | ||
| The State of Texas | ||
| County of ________ (insert name of county) | ||
| Know all persons by these presents that I/we, ___________ | ||
| (name of each principal), as principal, have deposited cash or | ||
| securities as evidenced by the attached receipt or record of | ||
| deposit issued by _____ (name of depository where cash or | ||
| securities are deposited or the name of the court) on _____ (date of | ||
| deposit), are held and firmly bound to the judge of ______ (insert | ||
| reference to appropriate judge), and that judge's successors in | ||
| office, in the sum of $______, having been so deposited; | ||
| conditioned that the above bound principal or principals, appointed | ||
| by the judge as guardian or temporary guardian of the person or of | ||
| the estate, or both, of _________(name of ward and whether the | ||
| person is a minor or is an incapacitated person other than a minor), | ||
| shall well and truly perform all of the duties required of the | ||
| guardian or temporary guardian by law under appointment. | ||
| (d-1) The guardian's bond and depository receipt, if | ||
| applicable, shall [ |
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| clerk after the bond [ |
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| SECTION 7. Section 1151.051(c), Estates Code, is amended to | ||
| read as follows: | ||
| (c) A guardian of the person has: | ||
| (1) the right to have physical possession of the ward | ||
| and to establish the ward's legal domicile; | ||
| (2) the duty to provide care, supervision, and | ||
| protection for the ward; | ||
| (3) the duty to provide the ward with clothing, food, | ||
| medical care, and shelter; | ||
| (4) the power to consent to medical, psychiatric, and | ||
| surgical treatment other than the inpatient psychiatric commitment | ||
| of the ward; | ||
| (5) on application to and order of the court, the power | ||
| to establish a trust in accordance with 42 U.S.C. Section | ||
| 1396p(d)(4)(B) and direct that the income of the ward as defined by | ||
| that section be paid directly to the trust, solely for the purpose | ||
| of the ward's eligibility for medical assistance under Chapter 32, | ||
| Human Resources Code; [ |
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| (6) the duty to notify the court, as soon as | ||
| practicable, if the ward has died or is admitted to a medical | ||
| facility for acute care for a period of three or more days; | ||
| (7) the duty to notify the court not later than the | ||
| 30th day after the date the ward's residence or address has changed; | ||
| (8) the duty to notify the court not later than the | ||
| 30th day after the date of a change in the guardian's residence, | ||
| address, phone number, or any other information used by the court to | ||
| contact the guardian; and | ||
| (9) the power to sign documents necessary or | ||
| appropriate to facilitate employment of the ward if: | ||
| (A) the guardian was appointed with full | ||
| authority over the person of the ward under Section 1101.151; or | ||
| (B) the power is specified in the court order | ||
| appointing the guardian with limited powers over the person of the | ||
| ward under Section 1101.152. | ||
| SECTION 8. Section 1155.151(a), Estates Code, is amended to | ||
| read as follows: | ||
| (a) In a guardianship proceeding, the court costs of the | ||
| proceeding, including the costs described by Subsection (a-1), | ||
| shall, except as provided by Subsection (c), be paid as follows, and | ||
| the court shall issue the judgment accordingly: | ||
| (1) out of the guardianship estate, if a guardian of | ||
| the estate has been created for the benefit of the ward and the | ||
| court determines it is in the ward's best interest; | ||
| (2) out of the management trust, if a management trust | ||
| has been created for the benefit of the ward under Chapter 1301 and | ||
| the court determines it is in the ward's best interest; | ||
| (3) by the party to the proceeding who incurred the | ||
| costs, unless that party filed, on the party's own behalf, an | ||
| affidavit of inability to pay the costs under Rule 145, Texas Rules | ||
| of Civil Procedure, that shows the party is unable to afford the | ||
| costs, if: | ||
| (A) there is no guardianship estate or [ |
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| management trust that has been created for the ward's benefit; or | ||
| (B) the assets of the guardianship estate or | ||
| management trust, as appropriate, are insufficient to pay the | ||
| costs; or | ||
| (4) out of the county treasury if: | ||
| (A) there is no guardianship estate or management | ||
| trust or the assets of the guardianship estate or management trust, | ||
| as appropriate, are insufficient to pay the costs; and | ||
| (B) the party to the proceeding who incurred the | ||
| costs filed, on the party's own behalf, an affidavit of inability to | ||
| pay the costs under Rule 145, Texas Rules of Civil Procedure, that | ||
| shows the party is unable to afford the costs. | ||
| SECTION 9. The heading to Section 1156.052, Estates Code, | ||
| is amended to read as follows: | ||
| Sec. 1156.052. ALLOWANCE FOR WARD'S SPOUSE, MINOR CHILDREN, | ||
| OR INCAPACITATED ADULT CHILDREN [ |
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| SECTION 10. Section 1156.052, Estates Code, is amended by | ||
| amending Subsections (a) and (b) and adding Subsection (d) to read | ||
| as follows: | ||
| (a) Subject to Section 1156.051 and on application to the | ||
| court, the court may order the guardian of the estate of a ward to | ||
| spend money from the ward's estate for the education and | ||
| maintenance of the ward's spouse, minor children, or incapacitated | ||
| adult children [ |
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| (b) In determining whether to order the expenditure of money | ||
| from a ward's estate for the ward's spouse, minor children, or | ||
| incapacitated adult children [ |
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| this section, the court shall consider: | ||
| (1) the circumstances of the ward, the ward's spouse, | ||
| and the ward's minor children and incapacitated adult children | ||
| [ |
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| (2) the ability and duty of the ward's spouse to | ||
| support himself or herself and the ward's minor children or | ||
| incapacitated adult children [ |
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| (3) the size of the ward's estate; | ||
| (4) a beneficial interest the ward or the ward's | ||
| spouse, minor children, or incapacitated adult children have [ |
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| (5) an existing estate plan, including a trust or | ||
| will, that provides a benefit to the ward's spouse, minor children, | ||
| or incapacitated adult children [ |
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| (d) Copies of the notices sent under Subsection (c) must be | ||
| filed with the court with a copy of the proof of delivery receipt | ||
| for each notice sent. | ||
| SECTION 11. Section 1203.006, Estates Code, is amended to | ||
| read as follows: | ||
| Sec. 1203.006. REQUIREMENTS FOR DISCHARGE. (a) A | ||
| guardian applying to resign may not be discharged until: | ||
| (1) the resignation application has been heard; | ||
| (2) the exhibit and final account or report required | ||
| under Section 1203.001 has been examined, settled, and approved; | ||
| and | ||
| (3) the guardian [ |
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| that the guardian [ |
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| (A) delivered any estate property remaining in | ||
| the guardian's [ |
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| (B) complied with all court orders relating to | ||
| the guardian's [ |
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| (b) When a guardian applying to resign has fully complied | ||
| with the court orders, the court shall enter an order: | ||
| (1) accepting the resignation; [ |
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| (2) discharging the guardian; | ||
| (3) canceling the letters issued to the guardian; and | ||
| (4) [ |
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| under bond, discharging and releasing the [ |
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| the guardian's bond. | ||
| SECTION 12. Section 1204.105, Estates Code, is amended by | ||
| adding Subsection (h) to read as follows: | ||
| (h) The guardian of the estate shall file an affidavit sworn | ||
| to by the guardian or a certificate signed by the guardian's | ||
| attorney stating: | ||
| (1) the name of each person to whom citation was served | ||
| under this section, indicating the method of service; | ||
| (2) the name of each person executing a waiver of | ||
| citation under Subsection (d); and | ||
| (3) that each person whose whereabouts are known or | ||
| can be reasonably ascertained who is entitled to citation under | ||
| this section was provided a copy of the account for final | ||
| settlement, indicating the method of delivery for each person to | ||
| whom a copy was provided. | ||
| SECTION 13. Section 1204.151, Estates Code, is amended to | ||
| read as follows: | ||
| Sec. 1204.151. DISCHARGE OF GUARDIAN WHEN NO ESTATE | ||
| PROPERTY REMAINS. The court shall enter an order discharging a | ||
| guardian from the guardian's trust, canceling the letters issued to | ||
| the guardian of the estate, and closing the guardianship estate if, | ||
| on final settlement of the estate, none of the estate remains in the | ||
| guardian's possession. | ||
| SECTION 14. Section 1204.152, Estates Code, is amended to | ||
| read as follows: | ||
| Sec. 1204.152. DISCHARGE OF GUARDIAN WHEN ESTATE FULLY | ||
| ADMINISTERED. The court shall enter an order discharging a | ||
| guardian of the estate from the guardian's trust, canceling the | ||
| letters issued to the guardian of the estate, and declaring the | ||
| estate closed when: | ||
| (1) the guardian has fully administered the estate in | ||
| accordance with this title and the court's orders; | ||
| (2) the guardian's account for final settlement has | ||
| been approved; and | ||
| (3) the guardian has delivered all of the estate | ||
| remaining in the guardian's possession to any person entitled to | ||
| receive the estate. | ||
| SECTION 15. Section 1251.005(a), Estates Code, is amended | ||
| to read as follows: | ||
| (a) On the filing of an application for temporary | ||
| guardianship, the court clerk shall issue: | ||
| (1) citation to be personally served on: | ||
| (A) the proposed ward; and | ||
| (B) the proposed temporary guardian named in the | ||
| application, if that person is not the applicant; and | ||
| (2) notice to be served in the manner provided under | ||
| Rule 21a, Texas Rules of Civil Procedure, on the proposed ward's | ||
| appointed attorney. | ||
| SECTION 16. Section 1023.008, Estates Code, is repealed. | ||
| SECTION 17. (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) Sections 1023.002(c), 1023.004(a), 1023.005(c), and | ||
| 1023.006(a), (b), (c), (d), (e), and (g), Estates Code, as amended | ||
| by this Act, and Section 1023.0071, Estates Code, as added by this | ||
| Act, apply only to an application filed or motion made to transfer a | ||
| guardianship on or after the effective date of this Act. An | ||
| application filed or motion made before the effective date of this | ||
| Act is governed by the law in effect on the date the application was | ||
| filed or motion was made, and the former law is continued in effect | ||
| for that purpose. | ||
| (c) Sections 1156.052 and 1251.005(a), Estates Code, as | ||
| amended by this Act, apply only to an application 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 18. This Act takes effect on the 91st day after the | ||
| last day of the legislative session. | ||
