Bill Text: TX HB2439 | 2021-2022 | 87th Legislature | Comm Sub
Bill Title: Relating to the appointment of a temporary guardian to receive certain social security benefits.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2021-05-03 - Committee report sent to Calendars [HB2439 Detail]
Download: Texas-2021-HB2439-Comm_Sub.html
87R5295 KFF-D | ||
By: White, Guillen | H.B. No. 2439 |
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relating to the appointment of a temporary guardian to receive | ||
certain social security benefits. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Subtitle G, Title 3, Estates Code, is amended by | ||
adding Chapter 1251A to read as follows: | ||
CHAPTER 1251A. TEMPORARY GUARDIANSHIP TO RECEIVE CERTAIN SOCIAL | ||
SECURITY BENEFITS | ||
SUBCHAPTER A. APPOINTMENT OF TEMPORARY GUARDIAN TO RECEIVE CERTAIN | ||
SOCIAL SECURITY BENEFITS GENERALLY | ||
Sec. 1251A.001. APPOINTMENT OF TEMPORARY GUARDIAN TO | ||
RECEIVE CERTAIN SOCIAL SECURITY BENEFITS. (a) A court shall | ||
appoint a temporary guardian with the limited power to receive | ||
funds under the federal Social Security Act (42 U.S.C. Section 301 | ||
et seq.), including funds in the form of Supplemental Security | ||
Income (SSI) benefits under 42 U.S.C. Section 1381 et seq. or funds | ||
in the form of Social Security Disability Insurance (SSDI) benefits | ||
under 42 U.S.C. Section 401 et seq., if the court: | ||
(1) is presented with substantial evidence that a | ||
person may be an incapacitated person; and | ||
(2) has probable cause to believe that the immediate | ||
appointment of a guardian is required. | ||
(b) The person for whom a temporary guardian is appointed | ||
under this chapter retains all rights and powers that are not | ||
specifically granted to the person's temporary guardian by court | ||
order. | ||
Sec. 1251A.002. NO PRESUMPTION OF INCAPACITY. A person for | ||
whom a temporary guardian is appointed under this chapter may not be | ||
presumed to be incapacitated. | ||
Sec. 1251A.003. PERSONS ELIGIBLE FOR APPOINTMENT AS | ||
TEMPORARY GUARDIAN TO RECEIVE CERTAIN SOCIAL SECURITY BENEFITS. | ||
The following persons are eligible for appointment as temporary | ||
guardian under this chapter: | ||
(1) the person's spouse; | ||
(2) the person's reasonably available adult children; | ||
(3) the person's parents; or | ||
(4) the person's nearest living relative. | ||
Sec. 1251A.004. APPLICATION. (a) A sworn, written | ||
application for the appointment of a temporary guardian shall be | ||
filed before the court appoints a temporary guardian under this | ||
chapter. | ||
(b) The application must state: | ||
(1) the name and address of the person who is the | ||
subject of the guardianship proceeding; | ||
(2) the appointment is requested for the limited | ||
purpose of receiving funds under the federal Social Security Act, | ||
including a description of the specific benefits sought; | ||
(3) the facts and reasons supporting the allegations | ||
and requests; | ||
(4) the proposed temporary guardian's name, address, | ||
and qualification; and | ||
(5) the applicant's name, address, and interest. | ||
Sec. 1251A.005. NOTICE OF APPLICATION. (a) On the filing | ||
of an application for temporary guardianship under this chapter, | ||
the clerk shall issue notice to be served on: | ||
(1) the proposed ward; and | ||
(2) the proposed temporary guardian named in the | ||
application, if that person is not the applicant. | ||
(b) The notice must describe: | ||
(1) the rights of the parties; and | ||
(2) the date, time, place, purpose, and possible | ||
consequences of a hearing on the application. | ||
(c) A copy of the application must be attached to the | ||
notice. | ||
Sec. 1251A.006. SCHEDULING OF EXPEDITED HEARING. (a) | ||
Immediately after an application for a temporary guardianship is | ||
filed under this chapter, the court shall issue an order setting a | ||
certain date for the hearing on the application. | ||
(b) Unless postponed as provided by Subsection (c), a | ||
hearing shall be held not later than 48 hours after the time the | ||
application for temporary guardianship is filed. | ||
(c) The proposed ward may consent to postpone the hearing on | ||
the application for temporary guardianship for a period not to | ||
exceed seven days after the date the application is filed. | ||
(d) An application for temporary guardianship takes | ||
precedence over all matters except older matters of the same | ||
character. | ||
Sec. 1251A.007. MOTION FOR DISMISSAL OF APPLICATION. (a) | ||
Subject to Subsection (b), the proposed ward may appear and move for | ||
the dismissal of the application for temporary guardianship filed | ||
under this chapter. | ||
(b) At least one day before making a motion under Subsection | ||
(a), the proposed ward shall provide notice to the party who filed | ||
the application for temporary guardianship. | ||
(c) If a motion is made for dismissal of the application for | ||
temporary guardianship, the court shall hear and determine the | ||
motion as expeditiously as justice requires. | ||
Sec. 1251A.008. RIGHTS OF PROPOSED WARD AT HEARING. At a | ||
hearing under this subchapter, the proposed ward has the right to: | ||
(1) receive prior notice; | ||
(2) be represented by counsel; | ||
(3) be present; | ||
(4) present evidence; | ||
(5) confront and cross-examine witnesses; and | ||
(6) a closed hearing if requested by the proposed | ||
ward. | ||
Sec. 1251A.009. APPEARANCE BY PROPOSED TEMPORARY GUARDIAN | ||
TO RECEIVE CERTAIN SOCIAL SECURITY BENEFITS IN CERTAIN | ||
CIRCUMSTANCES. If the applicant for a temporary guardianship under | ||
this chapter is not the proposed temporary guardian, a temporary | ||
guardianship may not be granted before a hearing on the application | ||
required by Section 1251A.006(b) unless the proposed temporary | ||
guardian appears in court. | ||
Sec. 1251A.010. EXPEDITED ORDER APPOINTING TEMPORARY | ||
GUARDIAN TO RECEIVE CERTAIN SOCIAL SECURITY BENEFITS. (a) Not | ||
later than 24 hours after the time the hearing required by Section | ||
1251A.006(b) concludes, the court shall appoint a temporary | ||
guardian by written order if the court determines that the | ||
applicant has established that there is substantial evidence that | ||
the proposed ward is an incapacitated person and that the immediate | ||
appointment of a guardian is required for the purposes described by | ||
Section 1251A.001(a). | ||
(b) The court shall assign to the temporary guardian only | ||
those powers and duties that are necessary to receive the funds | ||
specified in the application under Section 1251A.004(b)(2). | ||
(c) The order appointing the temporary guardian must | ||
describe: | ||
(1) the reasons for the temporary guardianship; and | ||
(2) the powers and duties of the temporary guardian. | ||
Sec. 1251A.011. BOND NOT REQUIRED. Notwithstanding Chapter | ||
1105 or any other law, a person appointed to serve as temporary | ||
guardian under this chapter is not required to give a bond. | ||
Sec. 1251A.012. COURT COSTS. If the court appoints a | ||
temporary guardian after the hearing required by Section | ||
1251A.006(b), all court costs, including attorney's fees, may be | ||
assessed as provided by Sections 1155.054 and 1155.151. | ||
SUBCHAPTER B. POWERS AND DUTIES OF TEMPORARY GUARDIAN TO RECEIVE | ||
CERTAIN SOCIAL SECURITY BENEFITS | ||
Sec. 1251A.051. AUTHORITY OF TEMPORARY GUARDIAN TO RECEIVE | ||
CERTAIN SOCIAL SECURITY BENEFITS. (a) When the temporary guardian | ||
appointed under this chapter takes the oath 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 | ||
requirement by the appointed temporary guardian on a certificate | ||
attached to the order. | ||
(c) The order appointing the temporary guardian is evidence | ||
of the temporary guardian's authority to act within the scope of the | ||
powers and duties stated in the order. | ||
(d) The clerk may not issue certified copies of the order | ||
until the oath requirement is satisfied. | ||
Sec. 1251A.052. APPLICABILITY OF GUARDIANSHIP PROVISIONS. | ||
The provisions of this title relating to the guardianship of the | ||
estates of incapacitated persons apply to a temporary guardianship | ||
created under this chapter, to the extent the provisions may be made | ||
applicable. | ||
SUBCHAPTER C. EXPIRATION AND CLOSING OF TEMPORARY GUARDIANSHIP TO | ||
RECEIVE CERTAIN SOCIAL SECURITY BENEFITS | ||
Sec. 1251A.101. EXPIRATION OF TEMPORARY GUARDIANSHIP TO | ||
RECEIVE CERTAIN SOCIAL SECURITY BENEFITS. The term of a temporary | ||
guardian appointed under this chapter expires on the earliest of: | ||
(1) the 30th day after the date the court order | ||
appointing the temporary guardian takes effect, except that the | ||
court may grant one extension of that time for not longer than 30 | ||
days; or | ||
(2) the date a permanent guardian appointed by the | ||
court for the proposed ward qualifies to serve as the ward's | ||
guardian. | ||
Sec. 1251A.102. ACCOUNTING. (a) At the expiration of a | ||
temporary guardianship under Section 1251A.101, the temporary | ||
guardian shall file with the court clerk: | ||
(1) a sworn list of all estate property that has come | ||
into the temporary guardian's possession; and | ||
(2) a full exhibit and account of all the temporary | ||
guardian's acts as temporary guardian. | ||
(b) The court shall act on the list, exhibit, and account | ||
filed under Subsection (a). | ||
Sec. 1251A.103. DELIVERY OF ESTATE; DISCHARGE OF TEMPORARY | ||
GUARDIAN TO RECEIVE CERTAIN SOCIAL SECURITY BENEFITS. (a) When the | ||
court order appointing a temporary guardian under this chapter | ||
expires or ceases to be effective for any reason, the court | ||
immediately shall enter an order requiring the temporary guardian | ||
to deliver the estate remaining in the temporary guardian's | ||
possession to the person legally entitled to possession of the | ||
estate. | ||
(b) On proof of delivery under Subsection (a), the temporary | ||
guardian shall be discharged. | ||
SECTION 2. This Act takes effect September 1, 2021. |