BILL ANALYSIS

H.B. 4107

By: Canales

Judiciary & Civil Jurisprudence

Committee Report (Unamended)

BACKGROUND AND PURPOSE

Currently, for a court to create a guardianship, modify a guardianship, or approve an order restoring capacity for an incapacitated person, the court must have a written letter or certificate signed by a physician. Often, psychologists will perform a court-ordered examination and evaluate the person's mental functioning but then need a physician to sign the letter. This unnecessarily delays guardianship actions and adds costs for the family. H.B. 4107 removes this barrier by authorizing the use of a written letter or certificate from a psychologist for purposes of certain guardianship proceedings.

CRIMINAL JUSTICE IMPACT

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

H.B. 4107 amends the Estates Code to authorize a psychologist licensed in Texas to provide a written letter or certificate regarding the following as an alternative to a physician licensed in Texas providing the letter or certificate:

·         the incapacity of a proposed ward required for purposes of a court's order to create a guardianship; or

·         the incapacity of a ward required for purposes of a court's order to completely restore a ward's capacity or modify a guardianship.

With respect to the letter or certificate required for a court's creation of a guardianship, the bill requires a psychologist to provide an evaluation of the proposed ward's mental functioning and summarize the proposed ward's psychological history, if applicable. With respect to the letter or certificate required for the complete restoration of a ward's capacity or the modification of a guardianship, the bill requires the psychologist to include a psychological prognosis specifying the estimated severity of any mental incapacity of the ward.

H.B. 4107 specifies that a court may appoint a psychologist to examine a proposed ward or ward if the court determines it necessary in a proceeding to determine necessity for guardianship or the restoration of a ward's capacity or modification of a guardianship. The bill subjects a psychologist who examines a proposed ward, other than a psychologist who examines the proposed ward for an intellectual disability that is the basis of alleged incapacity, to the requirement to make available for inspection by the attorney ad litem of the proposed ward a written letter or certificate that is dated within the same prescribed period and contains the contents as a letter or certificate required for a court's order creating a guardianship.

H.B. 4107 applies only to an application for the appointment of a guardian, or for the complete restoration of a ward's capacity or modification of a guardianship, filed on or after the bill's effective date.

EFFECTIVE DATE

September 1, 2023.