Bill Text: TX HB2178 | 2021-2022 | 87th Legislature | Introduced
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) 2021-03-15 - Referred to Judiciary & Civil Jurisprudence [HB2178 Detail]
Download: Texas-2021-HB2178-Introduced.html
87R3042 EAS-F | ||
By: Moody | H.B. No. 2178 |
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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 at 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 | ||
[ |
||
(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 1052.052(b), Estates Code, is amended to | ||
read as follows: | ||
(b) Each case file must contain each order, judgment, and | ||
proceeding of the court and any other guardianship filing with the | ||
court, including each: | ||
(1) application for the granting of guardianship; | ||
(2) citation and notice, whether published or posted, | ||
including the return on the citation or notice; | ||
(3) bond and official oath or declaration; | ||
(4) inventory, appraisement, and list of claims; | ||
(5) exhibit and account; | ||
(6) report of renting; | ||
(7) application for sale or partition of real estate; | ||
(8) report of sale; | ||
(9) application for authority to execute a lease for | ||
mineral development, or for pooling or unitization of lands, | ||
royalty, or other interest in minerals, or to lend or invest money; | ||
(10) report of lending or investing money; and | ||
(11) report of guardians of the persons. | ||
SECTION 3. Section 1103.003, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1103.003. EFFECTIVE DATE OF GUARDIANSHIP. If the | ||
application filed under Section 1103.001 is heard before the | ||
proposed ward's 18th birthday, a guardianship created under this | ||
chapter may not take effect and the person appointed guardian may | ||
not take the oath or make the declaration as required under Section | ||
1105.051 or give a bond as required under Section 1105.101 until the | ||
proposed ward's 18th birthday. | ||
SECTION 4. Section 1105.001, Estates Code, is amended by | ||
adding Subdivision (1-a) and amending Subdivision (2) to read as | ||
follows: | ||
(1-a) "Declaration" means a declaration taken by a | ||
person appointed to serve as a guardian to qualify to serve. | ||
(2) "Oath" means an oath [ |
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serve. | ||
SECTION 5. Section 1105.002, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1105.002. MANNER OF QUALIFICATION OF GUARDIAN. | ||
(a) Except as provided by Subsection (b), a guardian is considered | ||
to have qualified when the guardian has: | ||
(1) taken and filed the oath, or made and filed the | ||
declaration, required under Section 1105.051; | ||
(2) given the required bond; | ||
(3) filed the bond with the clerk; and | ||
(4) obtained the judge's approval of the bond. | ||
(b) A guardian who is not required to give a bond is | ||
considered to have qualified when the guardian has taken and filed | ||
the [ |
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under Section 1105.051. | ||
SECTION 6. Section 1105.003, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1105.003. PERIOD FOR TAKING OATH OR MAKING DECLARATION | ||
AND GIVING BOND. (a) Except as provided by Section 1103.003, an | ||
oath may be taken and subscribed or a declaration may be made, and a | ||
bond may be given and approved, at any time before: | ||
(1) the 21st day after the date of the order granting | ||
letters of guardianship; or | ||
(2) the letters of guardianship are revoked for a | ||
failure to qualify within the period allowed. | ||
(b) A guardian of an estate must give a bond before being | ||
issued letters of guardianship unless a bond is not required under | ||
this title. | ||
SECTION 7. The heading to Subchapter B, Chapter 1105, | ||
Estates Code, is amended to read as follows: | ||
SUBCHAPTER B. OATHS AND DECLARATIONS | ||
SECTION 8. Section 1105.051, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1105.051. OATH OR DECLARATION OF GUARDIAN. (a) A | ||
guardian shall: | ||
(1) take an oath to discharge faithfully the duties of | ||
guardian for the person or estate, or both, of a ward; or | ||
(2) make a declaration as prescribed by Subsection | ||
(d). | ||
(b) If the Health and Human [ |
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commission [ |
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the declaration required by Subsection (a). | ||
(c) An oath taken by a person named as guardian or temporary | ||
guardian, as applicable, must be substantially as follows: | ||
I, __________ (insert person's name), do solemnly swear that | ||
I will discharge faithfully the duties of guardian of __________ | ||
(insert "the person," "the estate," or "the person and estate") of | ||
__________ (insert ward's name), an incapacitated person, | ||
according to law. | ||
(d) A declaration made by a person named as guardian or | ||
temporary guardian, as applicable, must be substantially as | ||
follows: | ||
My name is _______ (insert person's name), my date of birth is | ||
__________ (insert person's date of birth), and my address is | ||
__________ (insert person's address, including country). I declare | ||
under penalty of perjury that the information in this declaration | ||
is true and correct. I solemnly declare that I will discharge | ||
faithfully the duties of __________ (insert "guardian" or | ||
"temporary guardian," as applicable) of __________ (insert "the | ||
person," "the estate," or "the person and estate") of __________ | ||
(insert ward's name), an incapacitated person, according to law. | ||
Signed on __________ (insert date of signing). | ||
SECTION 9. Section 1105.052, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1105.052. ADMINISTRATION OF OATH OR MAKING OF | ||
DECLARATION. The [ |
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taken before any person authorized to administer oaths under the | ||
laws of this state. The declaration prescribed by Section 1105.051 | ||
must be signed by the declarant. | ||
SECTION 10. Section 1105.103(f), Estates Code, is amended | ||
to read as follows: | ||
(f) If the guardian fails to give the bond required under | ||
Subsection (d) and the judge has not extended the period for giving | ||
the bond, the judge, without citation, shall remove the guardian | ||
and appoint a competent person as guardian, who shall: | ||
(1) administer the guardianship according to the | ||
provisions of a will or law; | ||
(2) take the oath or make the declaration required of a | ||
guardian under Section 1105.051 before the person enters on the | ||
administration of the guardianship; and | ||
(3) give bond in the same manner and in the same amount | ||
provided by this title for the issuance of original letters of | ||
guardianship. | ||
SECTION 11. 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[ |
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litem[ |
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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; and | ||
(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. | ||
SECTION 12. 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 | ||
[ |
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(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 [ |
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issued, the notice must be posted and the return made and filed as | ||
otherwise required by this title. | ||
SECTION 13. 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 [ |
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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 [ |
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the estate. | ||
SECTION 14. Section 1158.105(a), Estates Code, is amended | ||
to read as follows: | ||
(a) A successful bid or contract for the sale of estate | ||
personal property shall be reported to the court. The laws | ||
regulating the approval [ |
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real estate apply to the sale [ |
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conveyance is not required. | ||
SECTION 15. The heading to Subchapter I, Chapter 1158, | ||
Estates Code, is amended to read as follows: | ||
SUBCHAPTER I. SALE OF REAL ESTATE: PUBLIC AUCTION [ |
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SECTION 16. Section 1158.401(a), Estates Code, is amended | ||
to read as follows: | ||
(a) A public sale of real estate of an estate shall be made | ||
at public auction. Except as otherwise provided by Section | ||
1158.403(c) [ |
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advertise a public auction [ |
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notice published in the county in which the estate is pending, as | ||
provided by this title for publication of notices or citations. The | ||
notice must [ |
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(1) include a reference to the order of sale; | ||
(2) include the time, place, and required terms of | ||
sale; and | ||
(3) briefly describe [ |
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estate to be sold. | ||
SECTION 17. Section 1158.402, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1158.402. COMPLETION [ |
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public auction [ |
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on the bid of [ |
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SECTION 18. Section 1158.403, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1158.403. TIME AND PLACE OF AUCTION [ |
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Except as provided by Subsection (c), a public auction [ |
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real estate of an estate shall be held [ |
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(1) the courthouse door in the county in which the real | ||
estate is located, or if the real estate is located in more than one | ||
county, the courthouse door in any county in which the real estate | ||
is located [ |
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(2) another place in a [ |
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Subdivision (1) at which auctions [ |
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specifically authorized to be held as designated by the | ||
commissioners court of the county under Section 51.002(a), Property | ||
Code [ |
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(b) Except as otherwise provided by this subsection, the | ||
auction [ |
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first Tuesday of the month after publication of notice has been | ||
completed. If the first Tuesday of the month occurs on January 1 or | ||
July 4, the auction must occur between 10 a.m. and 4 p.m. on the | ||
first Wednesday of the month. | ||
(c) If the court considers it advisable, the court may order | ||
the auction [ |
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proceedings are pending [ |
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notice shall be published both in that county and in the county in | ||
which the real estate is located [ |
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SECTION 19. Section 1158.404, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1158.404. CONTINUANCE OF AUCTION [ |
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auction [ |
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the day advertised may be continued from day to day by an oral | ||
public announcement of the continuance made at the conclusion of | ||
the auction [ |
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(b) A continued auction [ |
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prescribed by Section 1158.403(b). | ||
(c) The continuance of an auction [ |
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section shall be shown in the report [ |
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under Section 1158.551. | ||
SECTION 20. Section 1158.405, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1158.405. FAILURE OF BIDDER TO COMPLY. (a) If a | ||
person who successfully bids on real estate of the guardianship | ||
estate offered [ |
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terms of the bid [ |
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readvertised and auctioned [ |
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(b) The person defaulting on a bid as described by | ||
Subsection (a) is liable for payment to the guardian of the estate, | ||
for the estate's benefit, of: | ||
(1) 10 percent of the amount of the bid; and | ||
(2) the amount of any deficiency in price on the second | ||
auction [ |
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(c) The guardian shall recover the amounts under Subsection | ||
(b) by suit in any court in the county in which the auction [ |
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was held [ |
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SECTION 21. The heading to Subchapter J, Chapter 1158, | ||
Estates Code, is amended to read as follows: | ||
SUBCHAPTER J. SALE OF REAL ESTATE: CONTRACT FOR PRIVATE SALE | ||
SECTION 22. Section 1158.451, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1158.451. TERMS [ |
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estate may enter into a contract for the [ |
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estate of the estate [ |
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in the order of sale. Unless the court directs otherwise, | ||
additional advertising, notice, or citation concerning the sale is | ||
not required. | ||
SECTION 23. Section 1158.502, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1158.502. PROCEDURE. The procedure for the sale of an | ||
easement or right-of-way authorized under Section 1158.501 is the | ||
same as the procedure provided by law for a private sale of real | ||
property of a ward by contract [ |
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SECTION 24. The heading to Subchapter L, Chapter 1158, | ||
Estates Code, is amended to read as follows: | ||
SUBCHAPTER L. APPROVAL [ |
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TRANSFER OF TITLE | ||
SECTION 25. Section 1158.551, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1158.551. REPORT. A successful bid or private | ||
contract for the sale of estate real property shall be reported to | ||
the court ordering the sale not later than the 30th day after the | ||
date the bid [ |
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contract. The report must: | ||
(1) be in writing, sworn to, and filed with the clerk; | ||
(2) include: | ||
(A) the date of the order of sale; | ||
(B) a description of the property being sold; | ||
(C) the time and place of the auction or date the | ||
property is placed under contract [ |
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(D) the purchaser's name; | ||
(E) the amount of the successful bid or the | ||
purchase price for [ |
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the parcel of property auctioned or placed under contract [ |
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(F) the terms of the sale; | ||
(G) whether the proposed sale of the property was | ||
made at public auction or by contract [ |
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(H) whether the purchaser is ready to comply with | ||
the order of sale; and | ||
(3) be noted on the guardianship docket. | ||
SECTION 26. Section 1158.552, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1158.552. ACTION OF COURT ON REPORT [ |
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the expiration of five days from the date a report [ |
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filed under Section 1158.551, the court shall: | ||
(1) consider [ |
||
auction described in the report was held or the contract described | ||
in the report [ |
||
(2) consider [ |
||
the report; and | ||
(3) determine the sufficiency or insufficiency of the | ||
guardian's general bond, if any has been required and given. | ||
SECTION 27. Section 1158.553, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1158.553. APPROVAL [ |
||
NOT REQUIRED. If the guardian of the estate of a ward is not | ||
required by Subtitle D to give a general bond, the court may approve | ||
[ |
||
Section 1158.556(a) if the court finds that the sale is | ||
satisfactory and made in accordance with law. | ||
SECTION 28. Sections 1158.554(a), (b), and (c), Estates | ||
Code, are amended to read as follows: | ||
(a) If the guardian of an estate is required by Subtitle D to | ||
give a general bond, before the court approves [ |
||
of real estate, the court shall determine whether the bond is | ||
sufficient to protect the estate after the sale proceeds are | ||
received. | ||
(b) If the court finds that the general bond is sufficient, | ||
the court may approve [ |
||
1158.556(a). | ||
(c) If the court finds that the general bond is | ||
insufficient, the court may not approve [ |
||
the general bond is increased to the amount required by the court, | ||
or an additional bond is given, and approved by the court. | ||
SECTION 29. Section 1158.556, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1158.556. APPROVAL [ |
||
ORDER. (a) If the court is satisfied that the proposed sale of real | ||
property [ |
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fair price, [ |
||
and the court has approved any increased or additional bond that the | ||
court found necessary to protect the estate, the court shall enter | ||
an order: | ||
(1) approving [ |
||
(2) showing conformity with [ |
||
chapter [ |
||
(3) detailing the terms of the sale; and | ||
(4) authorizing the guardian of the estate to convey | ||
the property on the purchaser's compliance with the terms of the | ||
sale. | ||
(b) If the court is not satisfied that the proposed sale of | ||
real property is [ |
||
[ |
||
setting aside the bid or contract [ |
||
be made, if necessary. | ||
(c) The court's action in approving [ |
||
disapproving a report under Section 1158.551 [ |
||
effect of a final judgment. Any person interested in the | ||
guardianship estate or in the sale is entitled to have an order | ||
entered under this section reviewed as in other final judgments in | ||
probate proceedings. | ||
SECTION 30. Section 1158.557, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1158.557. DEED. Real estate of an estate that is sold | ||
shall be conveyed by a proper deed that refers to and identifies the | ||
court order approving [ |
||
(1) vests in the purchaser all right and title of the | ||
estate to, and all interest of the estate in, the property; and | ||
(2) is prima facie evidence that the sale has met all | ||
applicable requirements of the law. | ||
SECTION 31. Section 1158.558(a), Estates Code, is amended | ||
to read as follows: | ||
(a) After the court has approved [ |
||
[ |
||
guardian of the estate shall promptly execute and deliver to the | ||
purchaser a proper deed conveying the property. | ||
SECTION 32. 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 [ |
||
the guardian or an individual certified under Subchapter C, Chapter | ||
155 [ |
||
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 [ |
||
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SECTION 33. 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 [ |
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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 [ |
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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 34. Sections 1251.101(a), (b), and (d), Estates | ||
Code, are amended to read as follows: | ||
(a) When the temporary guardian files the oath or | ||
declaration prescribed by Section 1105.051 and the bond required | ||
under this title, the court order appointing the temporary guardian | ||
takes effect without the necessity for issuance of letters of | ||
guardianship. | ||
(b) The clerk shall note compliance with the oath or | ||
declaration and bond requirements by the appointed temporary | ||
guardian on a certificate attached to the order. | ||
(d) The clerk may not issue certified copies of the order | ||
until the oath or declaration and bond requirements are satisfied. | ||
SECTION 35. 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 36. 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; [ |
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(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 37. 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 [ |
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the ward [ |
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SECTION 38. 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 [ |
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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 39. 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) [ |
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foreign court [ |
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has a nonresident guardian of the estate appointed by that | ||
court;[ |
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(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 40. Section 1355.105, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1355.105. WITHDRAWAL OF MONEY BY CREDITOR OR | ||
CREDITOR'S HEIR, [ |
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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; [ |
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(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 [ |
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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) [ |
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(3) [ |
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(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 41. (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 1251.101, | ||
Estates Code, and Chapter 1105, Estates Code, apply only to the | ||
qualification of a guardian that occurs on or after the effective | ||
date of this Act. The qualification of a guardian that occurs | ||
before the effective date of this Act is governed by the law in | ||
effect on the date the guardian qualifies to serve, 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 42. This Act takes effect September 1, 2021. |