Bill Text: TX HB2080 | 2013-2014 | 83rd Legislature | Introduced
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Bill Title: Relating to guardianships, including the assessment and payment of attorney's fees and other court costs in guardianships, and to court-created management trusts for persons who have physical disabilities or who are incapacitated; changing the amount of a fee and requiring the collection of a fee.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Passed) 2013-06-14 - Effective on 1/1/14 [HB2080 Detail]
Download: Texas-2013-HB2080-Introduced.html
Bill Title: Relating to guardianships, including the assessment and payment of attorney's fees and other court costs in guardianships, and to court-created management trusts for persons who have physical disabilities or who are incapacitated; changing the amount of a fee and requiring the collection of a fee.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Passed) 2013-06-14 - Effective on 1/1/14 [HB2080 Detail]
Download: Texas-2013-HB2080-Introduced.html
83R3599 CLG-F | ||
By: Thompson of Harris | H.B. No. 2080 |
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relating to guardianships, including the assessment and payment of | ||
attorney's fees and other court costs in guardianships, and to | ||
court-created management trusts for persons who have physical | ||
disabilities or who are incapacitated. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 1051.253(c), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(c) At the expiration of the 10-day period prescribed by | ||
Subsection (a): | ||
(1) [ |
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for which the notice was posted may be taken; and | ||
(2) the judge may file cross-interrogatories if no | ||
person appears. | ||
SECTION 2. Chapter 1055, Estates Code, as effective January | ||
1, 2014, is amended by adding Subchapter D to read as follows: | ||
SUBCHAPTER D. MEDIATION | ||
Sec. 1055.151. MEDIATION OF CONTESTED GUARDIANSHIP | ||
PROCEEDING. (a) On the written agreement of the parties or on the | ||
court's own motion, the court may refer a contested guardianship | ||
proceeding to mediation. | ||
(b) 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; | ||
(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. | ||
(c) If a mediated settlement agreement meets the | ||
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. | ||
(d) Notwithstanding Subsections (b) and (c), a court may | ||
decline to enter a judgment on a mediated settlement agreement if | ||
the court finds that the agreement is not in the ward's or proposed | ||
ward's best interests. | ||
SECTION 3. Section 1102.005(b), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(b) After examining the [ |
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and determining that the [ |
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for services provided by the guardian ad litem, the court may | ||
authorize compensation from the county treasury. | ||
SECTION 4. Sections 1155.052(a) and (c), Estates Code, as | ||
effective January 1, 2014, are amended to read as follows: | ||
(a) Notwithstanding any other provision of this chapter [ |
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provides legal services in connection with the guardianship is not | ||
entitled to compensation for the guardianship services or payment | ||
of attorney's fees for the legal services from the ward's estate or | ||
other funds available for that purpose unless the attorney files | ||
with the court a detailed description of the services performed | ||
that identifies which of the services provided were guardianship | ||
services and which were legal services. | ||
(c) The court shall set the compensation of an attorney | ||
described by Subsection (a) for the performance of guardianship | ||
services in accordance with Subchapter A. The court shall set | ||
attorney's fees for an attorney described by Subsection (a) for | ||
legal services provided in accordance with Sections 1155.054 | ||
[ |
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SECTION 5. Notwithstanding the transfer of Section 665B, | ||
Texas Probate Code, as amended by Chapters 314 (H.B. 587) and 930 | ||
(H.B. 3080), Acts of the 81st Legislature, Regular Session, 2009, | ||
to the Estates Code and redesignation as Section 665B of that code | ||
effective January 1, 2014, by Section 3.01(e), Chapter 823 (H.B. | ||
2759), Acts of the 82nd Legislature, Regular Session, 2011, Section | ||
665B, Texas Probate Code, is transferred to Subchapter B, Chapter | ||
1155, Estates Code, redesignated as Section 1155.054, Estates Code, | ||
and reenacted and amended to read as follows: | ||
Sec. 1155.054 [ |
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CERTAIN ATTORNEYS. (a) A court that creates a guardianship or | ||
creates a management trust under Chapter 1301 [ |
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filed an application to be appointed guardian of the proposed ward, | ||
an application for the appointment of another suitable person as | ||
guardian of the proposed ward, or an application for the creation of | ||
the management trust, may authorize the payment of reasonable and | ||
necessary attorney's fees, as determined by the court, in amounts | ||
the court considers equitable and just, to an attorney who | ||
represents the person who filed the application at the application | ||
hearing, regardless of whether the person is appointed the ward's | ||
guardian or whether a management trust is created, from[ |
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[ |
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management trust, if created, subject to Subsections (b) and (d). | ||
(b) The court may authorize amounts that otherwise would be | ||
paid from the ward's estate or the management trust as provided by | ||
Subsection (a) to instead be paid from the county treasury,[ |
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[ |
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(1) [ |
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management trust[ |
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[ |
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(2) [ |
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for that purpose. | ||
(c) [ |
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this section unless the court finds that the applicant acted in good | ||
faith and for just cause in the filing and prosecution of the | ||
application. | ||
(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 | ||
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 required to be reimbursed to the estate. | ||
(e) [ |
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fees from the county treasury under Subsection (b) [ |
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the fees will be paid has not received, and is not seeking, payment | ||
for the services described by that subsection from any other | ||
source. | ||
SECTION 6. Section 1155.151, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 1155.151. COSTS IN GUARDIANSHIP [ |
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GENERALLY [ |
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proceeding [ |
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[ |
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cost of the guardians [ |
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court visitor, mental health professionals, and interpreters | ||
appointed under this title, shall be set in an amount the court | ||
considers equitable and just and, except as provided by Subsection | ||
(c), shall be paid out of the guardianship estate, or [ |
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estate is insufficient to pay the cost, and the court shall issue | ||
the judgment accordingly. | ||
(b) The costs attributable to the services of a person | ||
described by Subsection (a) shall be paid under this section at any | ||
time after the commencement of the proceeding as ordered by the | ||
court. | ||
(c) 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 the party to pay all or part of the costs of the proceeding. | ||
If the party found to be acting in bad faith or without just cause | ||
was required to provide security for the probable costs of the | ||
proceeding under Section 1053.052, the court shall first apply the | ||
amount provided as security as payment for costs ordered by the | ||
court under this subsection. If the amount provided as security is | ||
insufficient to pay the entire amount ordered by the court, the | ||
court shall render judgment in favor of the estate against the party | ||
for the remaining amount. [ |
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SECTION 7. Subchapter C, Chapter 1163, Estates Code, as | ||
effective January 1, 2014, is amended by adding Section 1163.1011 | ||
to read as follows: | ||
Sec. 1163.1011. USE OF UNSWORN DECLARATION FOR ELECTRONIC | ||
FILING OF ANNUAL REPORT. (a) A guardian of the person who files the | ||
annual report required by Section 1163.101 electronically with the | ||
court may use an unsworn declaration made as provided by this | ||
section instead of a written sworn declaration or affidavit | ||
required by Section 1163.101. | ||
(b) An unsworn declaration authorized by this section must | ||
be: | ||
(1) in writing; and | ||
(2) subscribed by the person making the declaration as | ||
true under penalty of perjury. | ||
(c) The form of an unsworn declaration authorized by this | ||
section must be substantially as follows: | ||
I, (insert name of guardian of the person), the guardian of | ||
the person for (insert name of ward) in _______ County, Texas, | ||
declare under penalty of perjury that the foregoing is true and | ||
correct. | ||
Executed on (insert date) | ||
________________________ | ||
(signature) | ||
(d) An unsworn declaration authorized by Section 132.001, | ||
Civil Practice and Remedies Code, may not be used instead of a | ||
written sworn declaration or affidavit required by Section | ||
1163.101. | ||
SECTION 8. Section 1251.013, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 1251.013. COURT COSTS. If the court appoints a | ||
temporary guardian after the hearing required by Section | ||
1251.006(b), all court costs, including attorney's fees, may be | ||
assessed as provided by Sections 1155.054 and [ |
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1155.151[ |
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SECTION 9. The heading to Section 1301.052, Estates Code, | ||
as effective January 1, 2014, is amended to read as follows: | ||
Sec. 1301.052. VENUE FOR PROCEEDING INVOLVING TRUST FOR AN | ||
ALLEGED INCAPACITATED PERSON. | ||
SECTION 10. Section 1301.054, Estates Code, as effective | ||
January 1, 2014, is amended by amending Subsection (c) and adding | ||
Subsection (c-1) to read as follows: | ||
(c) Except as provided by Subsection (c-1), the [ |
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shall appoint an attorney ad litem and, if necessary, may appoint a | ||
guardian ad litem, to represent the interests of the alleged | ||
incapacitated person in the hearing to determine incapacity under | ||
Subsection (a). | ||
(c-1) If the application for the creation of the trust is | ||
filed by a person who has only a physical disability, the court may, | ||
but is not required to, appoint an attorney ad litem or guardian ad | ||
litem to represent the interests of the person in the hearing to | ||
determine incapacity under Subsection (a). | ||
SECTION 11. Section 1301.055, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 1301.055. AUTHORITY OF COURT TO APPOINT GUARDIAN | ||
INSTEAD OF CREATING TRUST. If, after a hearing under Section | ||
1301.054, the court finds that the person for whom the application | ||
was filed is an incapacitated person but that it is not in the | ||
incapacitated person's best interests for the court to create a | ||
trust under this subchapter for the incapacitated person's estate, | ||
the court may appoint a guardian of the person or estate, or both, | ||
for the incapacitated person without commencing a separate | ||
proceeding for that purpose. | ||
SECTION 12. Sections 1301.057(b), (c), and (d), Estates | ||
Code, as effective January 1, 2014, are amended to read as follows: | ||
(b) Except as provided by Subsection (c), the court shall | ||
appoint a financial institution to serve as trustee of a management | ||
trust, other than a management trust created for a person who has | ||
only a physical disability. | ||
(c) The court may appoint a person or entity described by | ||
Subsection (d) to serve as trustee of a management trust created for | ||
a ward or incapacitated person instead of appointing a financial | ||
institution to serve in that capacity if the court finds: | ||
(1) that the appointment is in the best interests of | ||
the ward or incapacitated person for whom the trust is created; and | ||
(2) if the value of the trust's principal is more than | ||
$150,000, that the applicant for the creation of the trust, after | ||
the exercise of due diligence, has been unable to find a financial | ||
institution in the geographic area willing to serve as trustee. | ||
(d) The following are eligible for appointment as trustee of | ||
a management trust created for a ward or incapacitated person under | ||
Subsection (c): | ||
(1) an individual, including an individual who is | ||
certified as a private professional guardian; | ||
(2) a nonprofit corporation qualified to serve as a | ||
guardian; and | ||
(3) a guardianship program. | ||
SECTION 13. Section 1301.058, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 1301.058. BOND REQUIREMENTS FOR TRUSTEES. (a) The | ||
following serve [ |
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trust terms required by Sections [ |
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(a-1): | ||
(1) a trustee of a management trust that is a corporate | ||
fiduciary; and | ||
(2) any other trustee of a management trust created | ||
for a person who has only a physical disability. | ||
(b) Except as provided by Subsection (a), the [ |
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shall require a person[ |
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as trustee of a management trust to file with the county clerk a | ||
bond that: | ||
(1) is in an amount equal to the value of the trust's | ||
principal and projected annual income; and | ||
(2) meets the conditions the court determines are | ||
necessary. | ||
SECTION 14. Section 1301.101, Estates Code, as effective | ||
January 1, 2014, is amended to conform to Section 31, Chapter 1085 | ||
(S.B. 1196), Acts of the 82nd Legislature, Regular Session, 2011, | ||
and is further amended to read as follows: | ||
Sec. 1301.101. REQUIRED TERMS. (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 [ |
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(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 [ |
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(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 [ |
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for services the trustee provides to the [ |
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person for whom the trust is created as the person's trustee. | ||
(a-1) A management trust created for a person who has only a | ||
physical disability must provide that the trustee of the trust: | ||
(1) serves without giving a bond; and | ||
(2) is entitled to receive, without the court's | ||
approval, reasonable compensation for services the trustee | ||
provides to the person as the person's trustee. | ||
(b) A trustee's compensation under Subsection (a)(5) must | ||
be: | ||
(1) paid from the management trust's income, | ||
principal, or both; and | ||
(2) determined, paid, reduced, and eliminated in the | ||
same manner as compensation of a guardian [ |
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Subchapter A, Chapter 1155. | ||
(c) The court creating or modifying a management trust may | ||
omit or modify otherwise applicable terms required by Subsection | ||
(a), (a-1), or (b) [ |
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trust for a person who has only a physical disability, or if the | ||
court determines that the omission or modification: | ||
(1) is necessary and appropriate for the [ |
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to receive public benefits or assistance under a state or federal | ||
program that is not otherwise available to the [ |
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(2) is in the [ |
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interests of the person for whom the trust is created. | ||
SECTION 15. Section 1301.102(a), Estates Code, as effective | ||
January 1, 2014, is amended to conform to Section 31, Chapter 1085 | ||
(S.B. 1196), Acts of the 82nd Legislature, Regular Session, 2011, | ||
and is further amended to read as follows: | ||
(a) A management trust created for a ward or incapacitated | ||
person may provide that the trustee make a distribution, payment, | ||
use, or application of trust funds for the health, education, | ||
maintenance, or support of the [ |
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whom the trust is created or of another person whom the [ |
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obligated to support: | ||
(1) as necessary and without the intervention of: | ||
(A) a guardian or other representative of the | ||
ward; or | ||
(B) a representative of the incapacitated | ||
person; and | ||
(2) to: | ||
(A) the ward's guardian; | ||
(B) a person who has physical custody of the | ||
[ |
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another person whom the [ |
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trust is created is legally obligated to support; or | ||
(C) a person providing a good or service to the | ||
[ |
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another person whom the [ |
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trust is created is legally obligated to support. | ||
SECTION 16. Section 1301.103, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 1301.103. ENFORCEABILITY OF CERTAIN TERMS. A | ||
provision in a management trust created for a ward or incapacitated | ||
person that relieves a trustee from a duty or liability imposed by | ||
this chapter or Subtitle B, Title 9, Property Code, is enforceable | ||
only if: | ||
(1) the provision is limited to specific facts and | ||
circumstances unique to the property of that trust and is not | ||
applicable generally to the trust; and | ||
(2) the court creating or modifying the trust makes a | ||
specific finding that there is clear and convincing evidence that | ||
the inclusion of the provision is in the best interests of the trust | ||
beneficiary. | ||
SECTION 17. Section 1301.154(a), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(a) The trustee of a management trust created for a ward | ||
shall prepare and file with the court an annual accounting of | ||
transactions in the trust in the same manner and form that is | ||
required of a guardian of the estate under this title. | ||
SECTION 18. Section 1301.202, Estates Code, as effective | ||
January 1, 2014, is amended by adding Subsection (a-1) to read as | ||
follows: | ||
(a-1) For purposes of a proceeding to determine whether to | ||
transfer property from a management trust to a pooled trust | ||
subaccount, the court may, but is not required to, appoint an | ||
attorney ad litem or guardian ad litem to represent the interests of | ||
a person who has only a physical disability for whom the management | ||
trust was created. | ||
SECTION 19. Section 1155.051, Estates Code, as effective | ||
January 1, 2014, is 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) 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 Sections | ||
1301.054, 1301.055, 1301.057(b), (c), and (d), 1301.058, 1301.101, | ||
and 1301.102(a), Estates Code, apply only to an application for the | ||
creation, modification, or termination of a management trust that | ||
is filed on or after the effective date of this Act. An application | ||
described by this subsection 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. | ||
(c) The changes in law made by this Act to Sections 1301.103 | ||
and 1301.154(a), Estates Code, and by Section 1301.202(a-1), | ||
Estates Code, as added by this Act, apply to a management trust | ||
created before, on, or after the effective date of this Act. | ||
SECTION 21. To the extent of any conflict, this Act prevails | ||
over another Act of the 83rd Legislature, Regular Session, 2013, | ||
relating to nonsubstantive additions to and corrections in enacted | ||
codes. | ||
SECTION 22. This Act takes effect January 1, 2014. |