Bill Text: TX HB2759 | 2011-2012 | 82nd Legislature | Enrolled
Bill Title: Relating to the nonsubstantive revision of provisions of the Texas Probate Code relating to durable powers of attorney, guardianships, and other related proceedings and alternatives, and the redesignation of certain other provisions of the Texas Probate Code, including conforming amendments and repeals.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2011-06-17 - Effective on . . . . . . . . . . . . . . . [HB2759 Detail]
Download: Texas-2011-HB2759-Enrolled.html
H.B. No. 2759 |
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relating to the nonsubstantive revision of provisions of the Texas | ||
Probate Code relating to durable powers of attorney, guardianships, | ||
and other related proceedings and alternatives, and the | ||
redesignation of certain other provisions of the Texas Probate | ||
Code, including conforming amendments and repeals. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
ARTICLE 1. NONSUBSTANTIVE REVISION OF PROVISIONS RELATING TO | ||
DURABLE POWERS OF ATTORNEY, GUARDIANSHIPS, AND OTHER RELATED | ||
PROCEEDINGS AND ALTERNATIVES | ||
SECTION 1.01. SUBTITLE P, TITLE 2, ESTATES CODE. Title 2, | ||
Estates Code, is amended by adding Subtitle P to read as follows: | ||
SUBTITLE P. DURABLE POWERS OF ATTORNEY | ||
CHAPTER 751. GENERAL PROVISIONS REGARDING DURABLE POWERS OF | ||
ATTORNEY | ||
DURABLE POWERS OF ATTORNEY | ||
SUBTITLE P. | DURABLE POWERS OF ATTORNEY | |
CHAPTER 751. | GENERAL PROVISIONS REGARDING DURABLE POWERS OF ATTORNEY | |
ATTORNEY | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Sec. 751.001. SHORT TITLE | ||
Sec. 751.002. DEFINITION OF DURABLE POWER OF ATTORNEY | ||
Sec. | 751.003. UNIFORMITY OF APPLICATION AND | |
CONSTRUCTION | ||
Sec. 751.004. DURATION OF DURABLE POWER OF ATTORNEY | ||
Sec. | 751.005. EXTENSION OF PRINCIPAL'S AUTHORITY TO | |
OTHER PERSONS | ||
Sec. 751.006. RIGHTS CUMULATIVE | ||
[Sections 751.007-751.050 reserved for expansion] | ||
SUBCHAPTER B. EFFECT OF CERTAIN ACTS ON EXERCISE OF DURABLE POWER | OF ATTORNEY | |
OF ATTORNEY | ||
Sec. | 751.051. EFFECT OF ACTS PERFORMED BY ATTORNEY IN | |
DISABILITY OR INCAPACITY | ||
Sec. | 751.052. RELATION OF ATTORNEY IN FACT OR AGENT TO | |
COURT-APPOINTED GUARDIAN OF ESTATE | ||
Sec. | 751.053. EFFECT OF PRINCIPAL'S DIVORCE OR | |
ATTORNEY IN FACT OR AGENT | ||
Sec. | 751.054. KNOWLEDGE OF TERMINATION OF POWER; | |
GOOD-FAITH ACTS | ||
Sec. | 751.055. AFFIDAVIT REGARDING LACK OF KNOWLEDGE OF | |
OR INCAPACITY; GOOD-FAITH RELIANCE | ||
Sec. | 751.056. NONLIABILITY OF THIRD PARTY ON | |
GOOD-FAITH RELIANCE | ||
Sec. 751.057. EFFECT OF BANKRUPTCY PROCEEDING | ||
Sec. | 751.058. EFFECT OF REVOCATION OF DURABLE POWER OF | |
ATTORNEY ON THIRD PARTY | ||
[Sections 751.059-751.100 reserved for expansion] | ||
SUBCHAPTER C. DUTY TO INFORM AND ACCOUNT | ||
Sec. 751.101. FIDUCIARY DUTIES | ||
Sec. 751.102. DUTY TO TIMELY INFORM PRINCIPAL | ||
Sec. 751.103. MAINTENANCE OF RECORDS | ||
Sec. 751.104. ACCOUNTING | ||
Sec. 751.105. EFFECT OF FAILURE TO COMPLY; SUIT | ||
Sec. | 751.106. EFFECT OF SUBCHAPTER ON PRINCIPAL'S | |
RIGHTS | ||
[Sections 751.107-751.150 reserved for expansion] | ||
SUBCHAPTER D. RECORDING DURABLE POWER OF ATTORNEY FOR CERTAIN REAL | PROPERTY TRANSACTIONS | |
PROPERTY TRANSACTIONS | ||
Sec. | 751.151. RECORDING FOR REAL PROPERTY TRANSACTIONS | |
INSTRUMENTS | ||
SUBTITLE P. DURABLE POWERS OF ATTORNEY | ||
CHAPTER 751. GENERAL PROVISIONS REGARDING DURABLE POWERS OF | ||
ATTORNEY | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
. This subtitle may be cited as | ||
the Durable Power of Attorney Act. (Tex. Prob. Code, Sec. 481.) | ||
. A | ||
"durable power of attorney" means a written instrument that: | ||
(1) designates another person as attorney in fact or | ||
agent; | ||
(2) is signed by an adult principal; | ||
(3) contains: | ||
(A) the words: | ||
(i) "This power of attorney is not affected | ||
by subsequent disability or incapacity of the principal"; or | ||
(ii) "This power of attorney becomes | ||
effective on the disability or incapacity of the principal"; or | ||
(B) words similar to those of Paragraph (A) that | ||
show the principal's intent that the authority conferred on the | ||
attorney in fact or agent shall be exercised notwithstanding the | ||
principal's subsequent disability or incapacity; and | ||
(4) is acknowledged by the principal before an officer | ||
authorized under the laws of this state or another state to: | ||
(A) take acknowledgments to deeds of conveyance; | ||
and | ||
(B) administer oaths. (Tex. Prob. Code, Sec. | ||
482.) | ||
. | ||
This subtitle shall be applied and construed to effect the general | ||
purpose of this subtitle, which is to make uniform the law with | ||
respect to the subject of this subtitle among states enacting these | ||
provisions. (Tex. Prob. Code, Sec. 506.) | ||
. A | ||
durable power of attorney does not lapse because of the passage of | ||
time unless the instrument creating the power of attorney | ||
specifically states a time limitation. (Tex. Prob. Code, Sec. | ||
483.) | ||
PERSONS | ||
act, that authority includes: | ||
(1) any person designated by the principal; | ||
(2) a guardian of the estate of the principal; or | ||
(3) another personal representative of the principal. | ||
(Tex. Prob. Code, Sec. 489B(i).) | ||
. The rights set out under | ||
this subtitle are cumulative of any other rights or remedies the | ||
principal may have at common law or other applicable statutes and | ||
are not in derogation of those rights. (Tex. Prob. Code, Sec. | ||
489B(j).) | ||
[Sections 751.007-751.050 reserved for expansion] | ||
SUBCHAPTER B. EFFECT OF CERTAIN ACTS ON EXERCISE OF DURABLE POWER | ||
OF ATTORNEY | ||
OR AGENT DURING PRINCIPAL'S DISABILITY OR INCAPACITY | ||
performed by an attorney in fact or agent under a durable power of | ||
attorney during a period of the principal's disability or | ||
incapacity has the same effect, and inures to the benefit of and | ||
binds the principal and the principal's successors in interest, as | ||
if the principal were not disabled or incapacitated. (Tex. Prob. | ||
Code, Sec. 484.) | ||
COURT-APPOINTED GUARDIAN OF ESTATE | ||
durable power of attorney, a court of the principal's domicile | ||
appoints a permanent guardian of the estate of the principal, the | ||
powers of the attorney in fact or agent terminate on the | ||
qualification of the guardian of the estate. The attorney in fact | ||
or agent shall: | ||
(1) deliver to the guardian of the estate all assets of | ||
the ward's estate that are in the possession of the attorney in fact | ||
or agent; and | ||
(2) account to the guardian of the estate as the | ||
attorney in fact or agent would account to the principal if the | ||
principal had terminated the powers of the attorney in fact or | ||
agent. | ||
(b) If, after execution of a durable power of attorney, a | ||
court of the principal's domicile appoints a temporary guardian of | ||
the estate of the principal, the court may suspend the powers of the | ||
attorney in fact or agent on the qualification of the temporary | ||
guardian of the estate until the date the term of the temporary | ||
guardian expires. This subsection may not be construed to prohibit | ||
the application for or issuance of a temporary restraining order | ||
under applicable law. (Tex. Prob. Code, Sec. 485.) | ||
ANNULMENT IF FORMER SPOUSE IS ATTORNEY IN FACT OR AGENT | ||
otherwise expressly provided by the durable power of attorney, if, | ||
after execution of a durable power of attorney, the principal is | ||
divorced from a person who has been appointed the principal's | ||
attorney in fact or agent or the principal's marriage to a person | ||
who has been appointed the principal's attorney in fact or agent is | ||
annulled, the powers of the attorney in fact or agent granted to the | ||
principal's former spouse terminate on the date the divorce or | ||
annulment of marriage is granted by a court. (Tex. Prob. Code, Sec. | ||
485A.) | ||
ACTS | ||
a guardian of the estate of a principal who has executed a durable | ||
power of attorney does not revoke or terminate the agency as to the | ||
attorney in fact, agent, or other person who acts in good faith | ||
under or in reliance on the power without actual knowledge of the | ||
termination of the power by: | ||
(1) the revocation; | ||
(2) the principal's death; or | ||
(3) the qualification of a guardian of the estate of | ||
the principal. | ||
(b) The divorce of a principal from a person who has been | ||
appointed the principal's attorney in fact or agent before the date | ||
the divorce is granted, or the annulment of the marriage of a | ||
principal and a person who has been appointed the principal's | ||
attorney in fact or agent before the date the annulment is granted, | ||
does not revoke or terminate the agency as to a person other than | ||
the principal's former spouse if the person acts in good faith under | ||
or in reliance on the power of attorney. | ||
(c) An action taken under this section, unless otherwise | ||
invalid or unenforceable, binds the principal's successors in | ||
interest. (Tex. Prob. Code, Sec. 486.) | ||
TERMINATION OF POWER OR OF DISABILITY OR INCAPACITY; GOOD-FAITH | ||
RELIANCE | ||
durable power of attorney, an affidavit executed by the attorney in | ||
fact or agent under the durable power of attorney stating that the | ||
attorney in fact or agent did not have, at the time the power was | ||
exercised, actual knowledge of the termination of the power by | ||
revocation, the principal's death, the principal's divorce or the | ||
annulment of the principal's marriage if the attorney in fact or | ||
agent was the principal's spouse, or the qualification of a | ||
guardian of the estate of the principal, is conclusive proof as | ||
between the attorney in fact or agent and a person other than the | ||
principal or the principal's personal representative dealing with | ||
the attorney in fact or agent of the nonrevocation or | ||
nontermination of the power at that time. | ||
(b) As to an act undertaken in good-faith reliance on a | ||
durable power of attorney, an affidavit executed by the attorney in | ||
fact or agent under the durable power of attorney stating that the | ||
principal is disabled or incapacitated, as defined by the power of | ||
attorney, is conclusive proof as between the attorney in fact or | ||
agent and a person other than the principal or the principal's | ||
personal representative dealing with the attorney in fact or agent | ||
of the principal's disability or incapacity at that time. | ||
(c) If the exercise of the power of attorney requires | ||
execution and delivery of an instrument that is to be recorded, an | ||
affidavit executed under Subsection (a) or (b), authenticated for | ||
record, may also be recorded. | ||
(d) This section and Section 751.056 do not affect a | ||
provision in a durable power of attorney for the termination of the | ||
power by: | ||
(1) expiration of time; or | ||
(2) the occurrence of an event other than express | ||
revocation. (Tex. Prob. Code, Secs. 487(a), (b), (c), (d).) | ||
RELIANCE | ||
relies in good faith on the acts of an attorney in fact or agent | ||
performed within the scope of the power of attorney is not liable to | ||
the principal. (Tex. Prob. Code, Sec. 487(e).) | ||
. (a) The | ||
filing of a voluntary or involuntary petition in bankruptcy in | ||
connection with the debts of a principal who has executed a durable | ||
power of attorney does not revoke or terminate the agency as to the | ||
principal's attorney in fact or agent. | ||
(b) Any act the attorney in fact or agent may undertake with | ||
respect to the principal's property is subject to the limitations | ||
and requirements of the United States Bankruptcy Code (11 U.S.C. | ||
Section 101 et seq.) until a final determination is made in the | ||
bankruptcy proceeding. (Tex. Prob. Code, Sec. 487A.) | ||
ATTORNEY ON THIRD PARTY | ||
power of attorney, a revocation of a durable power of attorney is | ||
not effective as to a third party relying on the power of attorney | ||
until the third party receives actual notice of the revocation. | ||
(Tex. Prob. Code, Sec. 488.) | ||
[Sections 751.059-751.100 reserved for expansion] | ||
SUBCHAPTER C. DUTY TO INFORM AND ACCOUNT | ||
. An attorney in fact or | ||
agent is a fiduciary and has a duty to inform and to account for | ||
actions taken under the power of attorney. (Tex. Prob. Code, Sec. | ||
489B(a).) | ||
. (a) The | ||
attorney in fact or agent shall timely inform the principal of each | ||
action taken under the power of attorney. | ||
(b) Failure of an attorney in fact or agent to timely | ||
inform, as to third parties, does not invalidate any action of the | ||
attorney in fact or agent. (Tex. Prob. Code, Sec. 489B(b).) | ||
. (a) The attorney in | ||
fact or agent shall maintain records of each action taken or | ||
decision made by the attorney in fact or agent. | ||
(b) The attorney in fact or agent shall maintain all records | ||
until delivered to the principal, released by the principal, or | ||
discharged by a court. (Tex. Prob. Code, Secs. 489B(c), (f).) | ||
. (a) The principal may demand an | ||
accounting by the attorney in fact or agent. | ||
(b) Unless otherwise directed by the principal, an | ||
accounting under Subsection (a) must include: | ||
(1) the property belonging to the principal that has | ||
come to the attorney in fact's or agent's knowledge or into the | ||
attorney in fact's or agent's possession; | ||
(2) each action taken or decision made by the attorney | ||
in fact or agent; | ||
(3) a complete account of receipts, disbursements, and | ||
other actions of the attorney in fact or agent that includes the | ||
source and nature of each receipt, disbursement, or action, with | ||
receipts of principal and income shown separately; | ||
(4) a listing of all property over which the attorney | ||
in fact or agent has exercised control that includes: | ||
(A) an adequate description of each asset; and | ||
(B) the asset's current value, if the value is | ||
known to the attorney in fact or agent; | ||
(5) the cash balance on hand and the name and location | ||
of the depository at which the cash balance is kept; | ||
(6) each known liability; and | ||
(7) any other information and facts known to the | ||
attorney in fact or agent as necessary for a full and definite | ||
understanding of the exact condition of the property belonging to | ||
the principal. | ||
(c) Unless directed otherwise by the principal, the | ||
attorney in fact or agent shall also provide to the principal all | ||
documentation regarding the principal's property. (Tex. Prob. | ||
Code, Secs. 489B(d), (e).) | ||
. If the | ||
attorney in fact or agent fails or refuses to inform the principal, | ||
provide documentation, or deliver an accounting under Section | ||
751.104 within 60 days of a demand under that section, or a longer | ||
or shorter period as demanded by the principal or ordered by a | ||
court, the principal may file suit to: | ||
(1) compel the attorney in fact or agent to deliver the | ||
accounting or the assets; or | ||
(2) terminate the power of attorney. (Tex. Prob. Code, | ||
Sec. 489B(g).) | ||
. | ||
This subchapter does not limit the right of the principal to | ||
terminate the power of attorney or to make additional requirements | ||
of or to give additional instructions to the attorney in fact or | ||
agent. (Tex. Prob. Code, Sec. 489B(h).) | ||
[Sections 751.107-751.150 reserved for expansion] | ||
SUBCHAPTER D. RECORDING DURABLE POWER OF ATTORNEY FOR CERTAIN REAL | ||
PROPERTY TRANSACTIONS | ||
REQUIRING EXECUTION AND DELIVERY OF INSTRUMENTS | ||
of attorney for a real property transaction requiring the execution | ||
and delivery of an instrument that is to be recorded, including a | ||
release, assignment, satisfaction, mortgage, security agreement, | ||
deed of trust, encumbrance, deed of conveyance, oil, gas, or other | ||
mineral lease, memorandum of a lease, lien, or other claim or right | ||
to real property, must be recorded in the office of the county clerk | ||
of the county in which the property is located. (Tex. Prob. Code, Sec. 489.) | ||
CHAPTER 752. STATUTORY DURABLE POWER OF ATTORNEY | ||
SUBCHAPTER A. GENERAL PROVISIONS REGARDING STATUTORY DURABLE POWER | OF ATTORNEY | |
OF ATTORNEY | ||
Sec. | 752.001. USE, MEANING, AND EFFECT OF STATUTORY | |
DURABLE POWER OF ATTORNEY | ||
Sec. 752.002. VALIDITY NOT AFFECTED | ||
Sec. 752.003. PRESCRIBED FORM NOT EXCLUSIVE | ||
Sec. | 752.004. LEGAL SUFFICIENCY OF STATUTORY DURABLE | |
POWER OF ATTORNEY | ||
[Sections 752.005-752.050 reserved for expansion] | ||
SUBCHAPTER B. FORM OF STATUTORY DURABLE POWER OF ATTORNEY | ||
Sec. 752.051. FORM | ||
[Sections 752.052-752.100 reserved for expansion] | ||
SUBCHAPTER C. CONSTRUCTION OF POWERS RELATED TO STATUTORY DURABLE | POWER OF ATTORNEY | |
POWER OF ATTORNEY | ||
Sec. 752.101. CONSTRUCTION IN GENERAL | ||
Sec. 752.102. REAL PROPERTY TRANSACTIONS | ||
Sec. 752.103. TANGIBLE PERSONAL PROPERTY TRANSACTIONS | ||
Sec. 752.104. STOCK AND BOND TRANSACTIONS | ||
Sec. 752.105. COMMODITY AND OPTION TRANSACTIONS | ||
Sec. | 752.106. BANKING AND OTHER FINANCIAL INSTITUTION | |
TRANSACTIONS | ||
Sec. 752.107. BUSINESS OPERATION TRANSACTIONS | ||
Sec. 752.108. INSURANCE AND ANNUITY TRANSACTIONS | ||
Sec. | 752.109. ESTATE, TRUST, AND OTHER BENEFICIARY | |
TRANSACTIONS | ||
Sec. 752.110. CLAIMS AND LITIGATION | ||
Sec. 752.111. PERSONAL AND FAMILY MAINTENANCE | ||
Sec. | 752.112. BENEFITS FROM CERTAIN GOVERNMENTAL | |
PROGRAMS OR CIVIL OR MILITARY SERVICE | ||
Sec. 752.113. RETIREMENT PLAN TRANSACTIONS | ||
Sec. 752.114. TAX MATTERS | ||
Sec. 752.115. EXISTING INTERESTS; FOREIGN INTERESTS | ||
CHAPTER 752. STATUTORY DURABLE POWER OF ATTORNEY | ||
SUBCHAPTER A. GENERAL PROVISIONS REGARDING STATUTORY DURABLE POWER | ||
OF ATTORNEY | ||
POWER OF ATTORNEY | ||
of attorney to grant an attorney in fact or agent powers with | ||
respect to a person's property and financial matters. | ||
(b) A power of attorney in substantially the form prescribed | ||
by Section 752.051 has the meaning and effect prescribed by this | ||
subtitle. (Tex. Prob. Code, Sec. 490(a) (part).) | ||
. A power of attorney is | ||
valid with respect to meeting the requirements for a statutory | ||
durable power of attorney regardless of the fact that: | ||
(1) one or more of the categories of optional powers | ||
listed in the form prescribed by Section 752.051 are struck; or | ||
(2) the form includes specific limitations on, or | ||
additions to, the powers of the attorney in fact or agent. (Tex. | ||
Prob. Code, Sec. 490(a) (part).) | ||
. The form | ||
prescribed by Section 752.051 is not exclusive, and other forms of | ||
power of attorney may be used. (Tex. Prob. Code, Sec. 490(a) | ||
(part).) | ||
OF ATTORNEY | ||
sufficient under this subtitle if: | ||
(1) the wording of the form complies substantially | ||
with the wording of the form prescribed by Section 752.051; | ||
(2) the form is properly completed; and | ||
(3) the signature of the principal is acknowledged. | ||
(Tex. Prob. Code, Sec. 490(b).) | ||
[Sections 752.005-752.050 reserved for expansion] | ||
SUBCHAPTER B. FORM OF STATUTORY DURABLE POWER OF ATTORNEY | ||
. The following form is known as a | ||
"statutory durable power of attorney": | ||
STATUTORY DURABLE POWER OF ATTORNEY | ||
NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. | ||
THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, SUBTITLE P, | ||
TITLE 2, ESTATES CODE. IF YOU HAVE ANY QUESTIONS ABOUT THESE POWERS, | ||
OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT AUTHORIZE | ||
ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS FOR YOU. YOU | ||
MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO DO SO. | ||
I, __________ (insert your name and address), appoint | ||
__________ (insert the name and address of the person appointed) as | ||
my agent (attorney in fact) to act for me in any lawful way with | ||
respect to all of the following powers except for a power that I | ||
have crossed out below. | ||
TO WITHHOLD A POWER, YOU MUST CROSS OUT EACH POWER | ||
WITHHELD. | ||
Real property transactions; | ||
Tangible personal property transactions; | ||
Stock and bond transactions; | ||
Commodity and option transactions; | ||
Banking and other financial institution transactions; | ||
Business operating transactions; | ||
Insurance and annuity transactions; | ||
Estate, trust, and other beneficiary transactions; | ||
Claims and litigation; | ||
Personal and family maintenance; | ||
Benefits from social security, Medicare, Medicaid, or other | ||
governmental programs or civil or military service; | ||
Retirement plan transactions; | ||
Tax matters. | ||
IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL | ||
BE CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY | ||
AGENT (ATTORNEY IN FACT) SHALL HAVE THE POWER AND AUTHORITY TO | ||
PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I | ||
WERE PERSONALLY PRESENT. | ||
SPECIAL INSTRUCTIONS: | ||
Special instructions applicable to gifts (initial in front of | ||
the following sentence to have it apply): | ||
I grant my agent (attorney in fact) the power to apply my | ||
property to make gifts, except that the amount of a gift to an | ||
individual may not exceed the amount of annual exclusions allowed | ||
from the federal gift tax for the calendar year of the gift. | ||
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS | ||
LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT. | ||
________________________________________________________________ | ||
________________________________________________________________ | ||
________________________________________________________________ | ||
________________________________________________________________ | ||
________________________________________________________________ | ||
________________________________________________________________ | ||
________________________________________________________________ | ||
________________________________________________________________ | ||
________________________________________________________________ | ||
UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS | ||
EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED. | ||
CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE | ||
ALTERNATIVE NOT CHOSEN: | ||
(A) This power of attorney is not affected by my subsequent | ||
disability or incapacity. | ||
(B) This power of attorney becomes effective upon my | ||
disability or incapacity. | ||
YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY | ||
IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED. | ||
IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT | ||
YOU CHOSE ALTERNATIVE (A). | ||
If Alternative (B) is chosen and a definition of my | ||
disability or incapacity is not contained in this power of | ||
attorney, I shall be considered disabled or incapacitated for | ||
purposes of this power of attorney if a physician certifies in | ||
writing at a date later than the date this power of attorney is | ||
executed that, based on the physician's medical examination of me, | ||
I am mentally incapable of managing my financial affairs. I | ||
authorize the physician who examines me for this purpose to | ||
disclose my physical or mental condition to another person for | ||
purposes of this power of attorney. A third party who accepts this | ||
power of attorney is fully protected from any action taken under | ||
this power of attorney that is based on the determination made by a | ||
physician of my disability or incapacity. | ||
I agree that any third party who receives a copy of this | ||
document may act under it. Revocation of the durable power of | ||
attorney is not effective as to a third party until the third party | ||
receives actual notice of the revocation. I agree to indemnify the | ||
third party for any claims that arise against the third party | ||
because of reliance on this power of attorney. | ||
If any agent named by me dies, becomes legally disabled, | ||
resigns, or refuses to act, I name the following (each to act alone | ||
and successively, in the order named) as successor(s) to that | ||
agent: __________. | ||
Signed this ______ day of __________, _____________ | ||
___________________________ | ||
(your signature) | ||
State of _______________________ | ||
County of ______________________ | ||
This document was acknowledged before me on ____________(date) by | ||
________________________ | ||
(name of principal) | ||
______________________________ | ||
(signature of notarial officer) | ||
(Seal, if any, of notary) ________________________________________ | ||
(printed name) | ||
My commission expires: ______________ | ||
THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER | ||
THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL | ||
RESPONSIBILITIES OF AN AGENT. (Tex. Prob. Code, Sec. 490(a) | ||
(part).) | ||
[Sections 752.052-752.100 reserved for expansion] | ||
SUBCHAPTER C. CONSTRUCTION OF POWERS RELATED TO STATUTORY DURABLE | ||
POWER OF ATTORNEY | ||
. By executing a | ||
statutory durable power of attorney that confers authority with | ||
respect to any class of transactions, the principal empowers the | ||
attorney in fact or agent for that class of transactions to: | ||
(1) demand, receive, and obtain by litigation, action, | ||
or otherwise any money or other thing of value to which the | ||
principal is, may become, or may claim to be entitled; | ||
(2) conserve, invest, disburse, or use any money or | ||
other thing of value received on behalf of the principal for the | ||
purposes intended; | ||
(3) contract in any manner with any person, on terms | ||
agreeable to the attorney in fact or agent, to accomplish a purpose | ||
of a transaction and perform, rescind, reform, release, or modify | ||
that contract or another contract made by or on behalf of the | ||
principal; | ||
(4) execute, acknowledge, seal, and deliver a deed, | ||
revocation, mortgage, lease, notice, check, release, or other | ||
instrument the attorney in fact or agent considers desirable to | ||
accomplish a purpose of a transaction; | ||
(5) with respect to a claim existing in favor of or | ||
against the principal: | ||
(A) prosecute, defend, submit to arbitration, | ||
settle, and propose or accept a compromise; or | ||
(B) intervene in an action or litigation relating | ||
to the claim; | ||
(6) seek on the principal's behalf the assistance of a | ||
court to carry out an act authorized by the power of attorney; | ||
(7) engage, compensate, and discharge an attorney, | ||
accountant, expert witness, or other assistant; | ||
(8) keep appropriate records of each transaction, | ||
including an accounting of receipts and disbursements; | ||
(9) prepare, execute, and file a record, report, or | ||
other document the attorney in fact or agent considers necessary or | ||
desirable to safeguard or promote the principal's interest under a | ||
statute or governmental regulation; | ||
(10) reimburse the attorney in fact or agent for an | ||
expenditure made in exercising the powers granted by the durable | ||
power of attorney; and | ||
(11) in general, perform any other lawful act that the | ||
principal may perform with respect to the transaction. (Tex. Prob. | ||
Code, Sec. 491.) | ||
. The language | ||
conferring authority with respect to real property transactions in | ||
a statutory durable power of attorney empowers the attorney in fact | ||
or agent, without further reference to a specific description of | ||
the real property, to: | ||
(1) accept as a gift or as security for a loan or | ||
reject, demand, buy, lease, receive, or otherwise acquire an | ||
interest in real property or a right incident to real property; | ||
(2) sell, exchange, convey with or without covenants, | ||
quitclaim, release, surrender, mortgage, encumber, partition or | ||
consent to partitioning, subdivide, apply for zoning, rezoning, or | ||
other governmental permits, plat or consent to platting, develop, | ||
grant options concerning, lease or sublet, or otherwise dispose of | ||
an estate or interest in real property or a right incident to real | ||
property; | ||
(3) release, assign, satisfy, and enforce by | ||
litigation, action, or otherwise a mortgage, deed of trust, | ||
encumbrance, lien, or other claim to real property that exists or is | ||
claimed to exist; | ||
(4) perform any act of management or of conservation | ||
with respect to an interest in real property, or a right incident to | ||
real property, owned or claimed to be owned by the principal, | ||
including the authority to: | ||
(A) insure against a casualty, liability, or | ||
loss; | ||
(B) obtain or regain possession or protect the | ||
interest or right by litigation, action, or otherwise; | ||
(C) pay, compromise, or contest taxes or | ||
assessments or apply for and receive refunds in connection with the | ||
taxes or assessments; | ||
(D) purchase supplies, hire assistance or labor, | ||
or make repairs or alterations to the real property; and | ||
(E) manage and supervise an interest in real | ||
property, including the mineral estate, by, for example: | ||
(i) entering into a lease for oil, gas, and | ||
mineral purposes; | ||
(ii) making contracts for development of | ||
the mineral estate; or | ||
(iii) making pooling and unitization | ||
agreements; | ||
(5) use, develop, alter, replace, remove, erect, or | ||
install structures or other improvements on real property in which | ||
the principal has or claims to have an estate, interest, or right; | ||
(6) participate in a reorganization with respect to | ||
real property or a legal entity that owns an interest in or right | ||
incident to real property, receive and hold shares of stock or | ||
obligations received in a plan or reorganization, and act with | ||
respect to the shares or obligations, including: | ||
(A) selling or otherwise disposing of the shares | ||
or obligations; | ||
(B) exercising or selling an option, conversion, | ||
or similar right with respect to the shares or obligations; and | ||
(C) voting the shares or obligations in person or | ||
by proxy; | ||
(7) change the form of title of an interest in or right | ||
incident to real property; and | ||
(8) dedicate easements or other real property in which | ||
the principal has or claims to have an interest to public use, with | ||
or without consideration. (Tex. Prob. Code, Sec. 492.) | ||
. The | ||
language conferring general authority with respect to tangible | ||
personal property transactions in a statutory durable power of | ||
attorney empowers the attorney in fact or agent to: | ||
(1) accept tangible personal property or an interest | ||
in tangible personal property as a gift or as security for a loan or | ||
reject, demand, buy, receive, or otherwise acquire ownership or | ||
possession of tangible personal property or an interest in tangible | ||
personal property; | ||
(2) sell, exchange, convey with or without covenants, | ||
release, surrender, mortgage, encumber, pledge, create a security | ||
interest in, pawn, grant options concerning, lease or sublet to | ||
others, or otherwise dispose of tangible personal property or an | ||
interest in tangible personal property; | ||
(3) release, assign, satisfy, or enforce by | ||
litigation, action, or otherwise a mortgage, security interest, | ||
encumbrance, lien, or other claim on behalf of the principal, with | ||
respect to tangible personal property or an interest in tangible | ||
personal property; and | ||
(4) perform an act of management or conservation with | ||
respect to tangible personal property or an interest in tangible | ||
personal property on behalf of the principal, including: | ||
(A) insuring the property or interest against | ||
casualty, liability, or loss; | ||
(B) obtaining or regaining possession or | ||
protecting the property or interest by litigation, action, or | ||
otherwise; | ||
(C) paying, compromising, or contesting taxes or | ||
assessments or applying for and receiving refunds in connection | ||
with taxes or assessments; | ||
(D) moving the property; | ||
(E) storing the property for hire or on a | ||
gratuitous bailment; and | ||
(F) using, altering, and making repairs or | ||
alterations to the property. (Tex. Prob. Code, Sec. 493.) | ||
. The language | ||
conferring authority with respect to stock and bond transactions in | ||
a statutory durable power of attorney empowers the attorney in fact | ||
or agent to: | ||
(1) buy, sell, and exchange: | ||
(A) stocks; | ||
(B) bonds; | ||
(C) mutual funds; and | ||
(D) all other types of securities and financial | ||
instruments other than commodity futures contracts and call and put | ||
options on stocks and stock indexes; | ||
(2) receive certificates and other evidences of | ||
ownership with respect to securities; | ||
(3) exercise voting rights with respect to securities | ||
in person or by proxy; | ||
(4) enter into voting trusts; and | ||
(5) consent to limitations on the right to vote. (Tex. | ||
Prob. Code, Sec. 494.) | ||
. The | ||
language conferring authority with respect to commodity and option | ||
transactions in a statutory durable power of attorney empowers the | ||
attorney in fact or agent to: | ||
(1) buy, sell, exchange, assign, settle, and exercise | ||
commodity futures contracts and call and put options on stocks and | ||
stock indexes traded on a regulated options exchange; and | ||
(2) establish, continue, modify, or terminate option | ||
accounts with a broker. (Tex. Prob. Code, Sec. 495.) | ||
TRANSACTIONS | ||
banking and other financial institution transactions in a statutory | ||
durable power of attorney empowers the attorney in fact or agent to: | ||
(1) continue, modify, or terminate an account or other | ||
banking arrangement made by or on behalf of the principal; | ||
(2) establish, modify, or terminate an account or | ||
other banking arrangement with a bank, trust company, savings and | ||
loan association, credit union, thrift company, brokerage firm, or | ||
other financial institution selected by the attorney in fact or | ||
agent; | ||
(3) rent a safe deposit box or space in a vault; | ||
(4) contract to procure other services available from | ||
a financial institution as the attorney in fact or agent considers | ||
desirable; | ||
(5) withdraw by check, order, or otherwise money or | ||
property of the principal deposited with or left in the custody of a | ||
financial institution; | ||
(6) receive bank statements, vouchers, notices, or | ||
similar documents from a financial institution and act with respect | ||
to those documents; | ||
(7) enter a safe deposit box or vault and withdraw from | ||
or add to its contents; | ||
(8) borrow money at an interest rate agreeable to the | ||
attorney in fact or agent and pledge as security the principal's | ||
property as necessary to borrow, pay, renew, or extend the time of | ||
payment of a debt of the principal; | ||
(9) make, assign, draw, endorse, discount, guarantee, | ||
and negotiate promissory notes, bills of exchange, checks, drafts, | ||
or other negotiable or nonnegotiable paper of the principal, or | ||
payable to the principal or the principal's order to receive the | ||
cash or other proceeds of those transactions, to accept a draft | ||
drawn by a person on the principal, and to pay the principal when | ||
due; | ||
(10) receive for the principal and act on a sight | ||
draft, warehouse receipt, or other negotiable or nonnegotiable | ||
instrument; | ||
(11) apply for and receive letters of credit, credit | ||
cards, and traveler's checks from a financial institution and give | ||
an indemnity or other agreement in connection with letters of | ||
credit; and | ||
(12) consent to an extension of the time of payment | ||
with respect to commercial paper or a financial transaction with a | ||
financial institution. (Tex. Prob. Code, Sec. 496.) | ||
. The | ||
language conferring authority with respect to business operating | ||
transactions in a statutory durable power of attorney empowers the | ||
attorney in fact or agent to: | ||
(1) operate, buy, sell, enlarge, reduce, or terminate | ||
a business interest; | ||
(2) do the following, to the extent that an attorney in | ||
fact or agent is permitted by law to act for a principal and subject | ||
to the terms of a partnership agreement: | ||
(A) perform a duty, discharge a liability, or | ||
exercise a right, power, privilege, or option that the principal | ||
has, may have, or claims to have under the partnership agreement, | ||
whether or not the principal is a general or limited partner; | ||
(B) enforce the terms of the partnership | ||
agreement by litigation, action, or otherwise; and | ||
(C) defend, submit to arbitration, settle, or | ||
compromise litigation or an action to which the principal is a party | ||
because of membership in the partnership; | ||
(3) exercise in person or by proxy, or enforce by | ||
litigation, action, or otherwise, a right, power, privilege, or | ||
option the principal has or claims to have as the holder of a bond, | ||
share, or other similar instrument and defend, submit to | ||
arbitration, settle, or compromise a legal proceeding to which the | ||
principal is a party because of a bond, share, or similar | ||
instrument; | ||
(4) with respect to a business owned solely by the | ||
principal: | ||
(A) continue, modify, renegotiate, extend, and | ||
terminate a contract made before execution of the power of attorney | ||
with an individual, legal entity, firm, association, or corporation | ||
by or on behalf of the principal with respect to the business; | ||
(B) determine: | ||
(i) the location of the business's | ||
operation; | ||
(ii) the nature and extent of the business; | ||
(iii) the methods of manufacturing, | ||
selling, merchandising, financing, accounting, and advertising | ||
employed in the business's operation; | ||
(iv) the amount and types of insurance | ||
carried; and | ||
(v) the method of engaging, compensating, | ||
and dealing with the business's accountants, attorneys, and other | ||
agents and employees; | ||
(C) change the name or form of organization under | ||
which the business is operated and enter into a partnership | ||
agreement with other persons or organize a corporation to take over | ||
all or part of the operation of the business; and | ||
(D) demand and receive money due or claimed by | ||
the principal or on the principal's behalf in the operation of the | ||
business and control and disburse the money in the operation of the | ||
business; | ||
(5) put additional capital into a business in which | ||
the principal has an interest; | ||
(6) join in a plan of reorganization, consolidation, | ||
or merger of the business; | ||
(7) sell or liquidate a business or part of the | ||
business at the time and on the terms that the attorney in fact or | ||
agent considers desirable; | ||
(8) establish the value of a business under a buy-out | ||
agreement to which the principal is a party; | ||
(9) do the following: | ||
(A) prepare, sign, file, and deliver reports, | ||
compilations of information, returns, or other papers with respect | ||
to a business: | ||
(i) that are required by a governmental | ||
agency, department, or instrumentality; or | ||
(ii) that the attorney in fact or agent | ||
considers desirable; and | ||
(B) make related payments; and | ||
(10) pay, compromise, or contest taxes or assessments | ||
and perform any other act that the attorney in fact or agent | ||
considers desirable to protect the principal from illegal or | ||
unnecessary taxation, fines, penalties, or assessments with | ||
respect to a business, including attempts to recover, in any manner | ||
permitted by law, money paid before or after the execution of the | ||
power of attorney. (Tex. Prob. Code, Sec. 497.) | ||
. (a) The | ||
language conferring authority with respect to insurance and annuity | ||
transactions in a statutory durable power of attorney empowers the | ||
attorney in fact or agent to: | ||
(1) continue, pay the premium or assessment on, | ||
modify, rescind, release, or terminate a contract procured by or on | ||
behalf of the principal that insures or provides an annuity to | ||
either the principal or another person, whether or not the | ||
principal is a beneficiary under the contract; | ||
(2) procure new, different, or additional insurance | ||
contracts and annuities for the principal or the principal's | ||
spouse, children, and other dependents and select the amount, type | ||
of insurance or annuity, and method of payment; | ||
(3) pay the premium or assessment on, or modify, | ||
rescind, release, or terminate, an insurance contract or annuity | ||
procured by the attorney in fact or agent; | ||
(4) designate the beneficiary of the insurance | ||
contract, except as provided by Subsection (b); | ||
(5) apply for and receive a loan on the security of the | ||
insurance contract or annuity; | ||
(6) surrender and receive the cash surrender value; | ||
(7) exercise an election; | ||
(8) change the manner of paying premiums; | ||
(9) change or convert the type of insurance contract | ||
or annuity with respect to which the principal has or claims to have | ||
a power described by this section; | ||
(10) change the beneficiary of an insurance contract | ||
or annuity, except that the attorney in fact or agent may be | ||
designated a beneficiary only to the extent authorized by | ||
Subsection (b); | ||
(11) apply for and procure government aid to guarantee | ||
or pay premiums of an insurance contract on the life of the | ||
principal; | ||
(12) collect, sell, assign, borrow on, or pledge the | ||
principal's interest in an insurance contract or annuity; and | ||
(13) pay from proceeds or otherwise, compromise or | ||
contest, or apply for refunds in connection with a tax or assessment | ||
imposed by a taxing authority with respect to an insurance contract | ||
or annuity or the proceeds of the contract or annuity or liability | ||
accruing because of the tax or assessment. | ||
(b) An attorney in fact or agent may be named a beneficiary | ||
of an insurance contract or an extension, renewal, or substitute | ||
for the contract only to the extent the attorney in fact or agent | ||
was named as a beneficiary under a contract procured by the | ||
principal before executing the power of attorney. (Tex. Prob. | ||
Code, Sec. 498.) | ||
TRANSACTIONS | ||
estate, trust, and other beneficiary transactions in a statutory | ||
durable power of attorney empowers the attorney in fact or agent to | ||
act for the principal in all matters that affect a trust, probate | ||
estate, guardianship, conservatorship, escrow, custodianship, or | ||
other fund from which the principal is, may become, or claims to be | ||
entitled, as a beneficiary, to a share or payment, including to: | ||
(1) accept, reject, disclaim, receive, receipt for, | ||
sell, assign, release, pledge, exchange, or consent to a reduction | ||
in or modification of a share in or payment from the fund; | ||
(2) demand or obtain by litigation, action, or | ||
otherwise money or any other thing of value to which the principal | ||
is, may become, or claims to be entitled because of the fund; | ||
(3) initiate, participate in, or oppose a legal or | ||
judicial proceeding to: | ||
(A) ascertain the meaning, validity, or effect of | ||
a deed, will, declaration of trust, or other instrument or | ||
transaction affecting the interest of the principal; or | ||
(B) remove, substitute, or surcharge a | ||
fiduciary; | ||
(4) conserve, invest, disburse, or use anything | ||
received for an authorized purpose; and | ||
(5) transfer all or part of the principal's interest in | ||
real property, stocks, bonds, accounts with financial | ||
institutions, insurance, and other property to the trustee of a | ||
revocable trust created by the principal as settlor. (Tex. Prob. | ||
Code, Sec. 499.) | ||
. The language | ||
conferring general authority with respect to claims and litigation | ||
in a statutory durable power of attorney empowers the attorney in | ||
fact or agent to: | ||
(1) assert and prosecute before a court or | ||
administrative agency a claim, a claim for relief, a counterclaim, | ||
or an offset, or defend against an individual, a legal entity, or a | ||
government, including an action to: | ||
(A) recover property or other thing of value; | ||
(B) recover damages sustained by the principal; | ||
(C) eliminate or modify tax liability; or | ||
(D) seek an injunction, specific performance, or | ||
other relief; | ||
(2) bring an action to determine an adverse claim, | ||
intervene in an action or litigation, and act as an amicus curiae; | ||
(3) in connection with an action or litigation: | ||
(A) procure an attachment, garnishment, libel, | ||
order of arrest, or other preliminary, provisional, or intermediate | ||
relief and use an available procedure to effect or satisfy a | ||
judgment, order, or decree; and | ||
(B) perform any lawful act the principal could | ||
perform, including: | ||
(i) acceptance of tender; | ||
(ii) offer of judgment; | ||
(iii) admission of facts; | ||
(iv) submission of a controversy on an | ||
agreed statement of facts; | ||
(v) consent to examination before trial; | ||
and | ||
(vi) binding of the principal in | ||
litigation; | ||
(4) submit to arbitration, settle, and propose or | ||
accept a compromise with respect to a claim or litigation; | ||
(5) waive the issuance and service of process on the | ||
principal, accept service of process, appear for the principal, | ||
designate persons on whom process directed to the principal may be | ||
served, execute and file or deliver stipulations on the principal's | ||
behalf, verify pleadings, seek appellate review, procure and give | ||
surety and indemnity bonds, contract and pay for the preparation | ||
and printing of records and briefs, or receive and execute and file | ||
or deliver a consent, waiver, release, confession of judgment, | ||
satisfaction of judgment, notice, agreement, or other instrument in | ||
connection with the prosecution, settlement, or defense of a claim | ||
or litigation; | ||
(6) act for the principal regarding voluntary or | ||
involuntary bankruptcy or insolvency proceedings concerning: | ||
(A) the principal; or | ||
(B) another person, with respect to a | ||
reorganization proceeding or a receivership or application for the | ||
appointment of a receiver or trustee that affects the principal's | ||
interest in property or other thing of value; and | ||
(7) pay a judgment against the principal or a | ||
settlement made in connection with a claim or litigation and | ||
receive and conserve money or other thing of value paid in | ||
settlement of or as proceeds of a claim or litigation. (Tex. Prob. | ||
Code, Sec. 500.) | ||
. The | ||
language conferring authority with respect to personal and family | ||
maintenance in a statutory durable power of attorney empowers the | ||
attorney in fact or agent to: | ||
(1) perform the acts necessary to maintain the | ||
customary standard of living of the principal, the principal's | ||
spouse and children, and other individuals customarily or legally | ||
entitled to be supported by the principal, including: | ||
(A) providing living quarters by purchase, | ||
lease, or other contract; or | ||
(B) paying the operating costs, including | ||
interest, amortization payments, repairs, and taxes on premises | ||
owned by the principal and occupied by those individuals; | ||
(2) provide for the individuals described by | ||
Subdivision (1): | ||
(A) normal domestic help; | ||
(B) usual vacations and travel expenses; and | ||
(C) money for shelter, clothing, food, | ||
appropriate education, and other living costs; | ||
(3) pay necessary medical, dental, and surgical care, | ||
hospitalization, and custodial care for the individuals described | ||
by Subdivision (1); | ||
(4) continue any provision made by the principal for | ||
the individuals described by Subdivision (1) for automobiles or | ||
other means of transportation, including registering, licensing, | ||
insuring, and replacing the automobiles or other means of | ||
transportation; | ||
(5) maintain or open charge accounts for the | ||
convenience of the individuals described by Subdivision (1) and | ||
open new accounts the attorney in fact or agent considers desirable | ||
to accomplish a lawful purpose; and | ||
(6) continue: | ||
(A) payments incidental to the membership or | ||
affiliation of the principal in a church, club, society, order, or | ||
other organization; or | ||
(B) contributions to those organizations. (Tex. | ||
Prob. Code, Sec. 501.) | ||
OR CIVIL OR MILITARY SERVICE | ||
with respect to benefits from social security, Medicare, Medicaid, | ||
or other governmental programs or civil or military service in a | ||
statutory durable power of attorney empowers the attorney in fact | ||
or agent to: | ||
(1) execute a voucher in the principal's name for an | ||
allowance or reimbursement payable by the United States, a foreign | ||
government, or a state or subdivision of a state to the principal, | ||
including an allowance or reimbursement for: | ||
(A) transportation of the individuals described | ||
by Section 752.111(1); and | ||
(B) shipment of the household effects of those | ||
individuals; | ||
(2) take possession and order the removal and shipment | ||
of the principal's property from a post, warehouse, depot, dock, or | ||
other governmental or private place of storage or safekeeping and | ||
execute and deliver a release, voucher, receipt, bill of lading, | ||
shipping ticket, certificate, or other instrument for that purpose; | ||
(3) prepare, file, and prosecute a claim of the | ||
principal for a benefit or assistance, financial or otherwise, to | ||
which the principal claims to be entitled under a statute or | ||
governmental regulation; | ||
(4) prosecute, defend, submit to arbitration, settle, | ||
and propose or accept a compromise with respect to any benefits the | ||
principal may be entitled to receive; and | ||
(5) receive the financial proceeds of a claim of the | ||
type described by this section and conserve, invest, disburse, or | ||
use anything received for a lawful purpose. (Tex. Prob. Code, Sec. | ||
502.) | ||
. (a) In this | ||
section, "retirement plan" means: | ||
(1) an employee pension benefit plan as defined by | ||
Section 3, Employee Retirement Income Security Act of 1974 (29 | ||
U.S.C. Section 1002), without regard to the provisions of Section | ||
(2)(B) of that section; | ||
(2) a plan that does not meet the definition of an | ||
employee benefit plan under the Employee Retirement Income Security | ||
Act of 1974 (29 U.S.C. Section 1001 et seq.) because the plan does | ||
not cover common law employees; | ||
(3) a plan that is similar to an employee benefit plan | ||
under the Employee Retirement Income Security Act of 1974 (29 | ||
U.S.C. Section 1001 et seq.), regardless of whether the plan is | ||
covered by Title 1 of that Act, including a plan that provides death | ||
benefits to the beneficiary of employees; and | ||
(4) an individual retirement account or annuity, a | ||
self-employed pension plan, or a similar plan or account. | ||
(b) The language conferring authority with respect to | ||
retirement plan transactions in a statutory durable power of | ||
attorney empowers the attorney in fact or agent to perform any | ||
lawful act the principal may perform with respect to a transaction | ||
relating to a retirement plan, including to: | ||
(1) apply for service or disability retirement | ||
benefits; | ||
(2) select payment options under any retirement plan | ||
in which the principal participates, including plans for | ||
self-employed individuals; | ||
(3) designate or change the designation of a | ||
beneficiary or benefits payable by a retirement plan, except as | ||
provided by Subsection (c); | ||
(4) make voluntary contributions to retirement plans | ||
if authorized by the plan; | ||
(5) exercise the investment powers available under any | ||
self-directed retirement plan; | ||
(6) make rollovers of plan benefits into other | ||
retirement plans; | ||
(7) borrow from, sell assets to, and purchase assets | ||
from retirement plans if authorized by the plan; | ||
(8) waive the principal's right to be a beneficiary of | ||
a joint or survivor annuity if the principal is a spouse who is not | ||
employed; | ||
(9) receive, endorse, and cash payments from a | ||
retirement plan; | ||
(10) waive the principal's right to receive all or a | ||
portion of benefits payable by a retirement plan; and | ||
(11) request and receive information relating to the | ||
principal from retirement plan records. | ||
(c) An attorney in fact or agent may be named a beneficiary | ||
under a retirement plan only to the extent the attorney in fact or | ||
agent was a named beneficiary under the retirement plan before the | ||
durable power of attorney was executed. (Tex. Prob. Code, Sec. | ||
503.) | ||
. The language conferring | ||
authority with respect to tax matters in a statutory durable power | ||
of attorney empowers the attorney in fact or agent to: | ||
(1) prepare, sign, and file: | ||
(A) federal, state, local, and foreign income, | ||
gift, payroll, Federal Insurance Contributions Act (26 U.S.C. | ||
Chapter 21), and other tax returns; | ||
(B) claims for refunds; | ||
(C) requests for extensions of time; | ||
(D) petitions regarding tax matters; and | ||
(E) any other tax-related documents, including: | ||
(i) receipts; | ||
(ii) offers; | ||
(iii) waivers; | ||
(iv) consents, including consents and | ||
agreements under Section 2032A, Internal Revenue Code of 1986 (26 | ||
U.S.C. Section 2032A); | ||
(v) closing agreements; and | ||
(vi) any power of attorney form required by | ||
the Internal Revenue Service or other taxing authority with respect | ||
to a tax year on which the statute of limitations has not run and 25 | ||
tax years following that tax year; | ||
(2) pay taxes due, collect refunds, post bonds, | ||
receive confidential information, and contest deficiencies | ||
determined by the Internal Revenue Service or other taxing | ||
authority; | ||
(3) exercise any election available to the principal | ||
under federal, state, local, or foreign tax law; and | ||
(4) act for the principal in all tax matters, for all | ||
periods, before the Internal Revenue Service and any other taxing | ||
authority. (Tex. Prob. Code, Sec. 504.) | ||
. The | ||
powers described by Sections 752.102-752.114 may be exercised | ||
equally with respect to an interest the principal has at the time | ||
the durable power of attorney is executed or acquires later, | ||
whether or not: | ||
(1) the property is located in this state; or | ||
(2) the powers are exercised or the durable power of | ||
attorney is executed in this state. (Tex. Prob. Code, Sec. 505.) | ||
SECTION 1.02. TITLE 3, ESTATES CODE. The Estates Code is | ||
amended by adding Title 3 to read as follows: | ||
TITLE 3. GUARDIANSHIP AND RELATED PROCEDURES | ||
SUBTITLE A. GENERAL PROVISIONS | ||
CHAPTER 1001. PURPOSE AND CONSTRUCTION | ||
CHAPTER 1002. DEFINITIONS | ||
[Chapters 1003-1030 reserved for expansion] | ||
SUBTITLE B. SCOPE, JURISDICTION, AND VENUE | ||
[Chapters 1031-1050 reserved] | ||
SUBTITLE C. PROCEDURAL MATTERS | ||
CHAPTER 1051. NOTICES AND PROCESS IN GUARDIANSHIP PROCEEDINGS IN | ||
GENERAL | ||
CHAPTER 1052. FILING AND RECORDKEEPING | ||
CHAPTER 1053. OTHER COURT DUTIES AND PROCEDURES | ||
CHAPTER 1054. COURT OFFICERS AND COURT-APPOINTED PERSONS | ||
CHAPTER 1055. TRIAL AND HEARING MATTERS | ||
CHAPTER 1056. EXECUTION, ATTACHMENT, AND BILL OF REVIEW | ||
CHAPTER 1057. CHANGE AND RESIGNATION OF RESIDENT AGENT OF GUARDIAN | ||
FOR SERVICE OF PROCESS | ||
[Chapters 1058-1100 reserved for expansion] | ||
SUBTITLE D. CREATION OF GUARDIANSHIP | ||
CHAPTER 1101. GENERAL PROCEDURE TO APPOINT GUARDIAN | ||
CHAPTER 1102. COURT-INITIATED PROCEDURE TO APPOINT GUARDIAN | ||
CHAPTER 1103. PROCEDURE TO APPOINT GUARDIAN FOR CERTAIN MINORS | ||
REQUIRING GUARDIANSHIPS AS ADULTS | ||
CHAPTER 1104. SELECTION OF AND ELIGIBILITY TO SERVE AS GUARDIAN | ||
CHAPTER 1105. QUALIFICATION OF GUARDIANS | ||
CHAPTER 1106. LETTERS OF GUARDIANSHIP | ||
[Chapters 1107-1150 reserved for expansion] | ||
SUBTITLE E. ADMINISTRATION OF GUARDIANSHIP | ||
CHAPTER 1151. RIGHTS, POWERS, AND DUTIES UNDER GUARDIANSHIP | ||
CHAPTER 1152. GUARDIANSHIP PENDING APPEAL OF APPOINTMENT | ||
CHAPTER 1153. NOTICE TO CLAIMANTS | ||
CHAPTER 1154. INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS | ||
CHAPTER 1155. COMPENSATION, EXPENSES, AND COURT COSTS | ||
CHAPTER 1156. EDUCATION AND MAINTENANCE ALLOWANCES PAID FROM WARD'S | ||
ESTATE | ||
CHAPTER 1157. PRESENTMENT AND PAYMENT OF CLAIMS | ||
CHAPTER 1158. SALE OR PARTITION OF WARD'S PROPERTY | ||
CHAPTER 1159. RENTING ESTATE PROPERTY | ||
CHAPTER 1160. MATTERS RELATING TO MINERAL PROPERTIES | ||
CHAPTER 1161. INVESTMENTS AND LOANS OF ESTATES OF WARDS | ||
CHAPTER 1162. TAX-MOTIVATED AND CHARITABLE AND NONPROFIT GIFTS | ||
CHAPTER 1163. ANNUAL ACCOUNT AND OTHER EXHIBITS AND REPORTS | ||
CHAPTER 1164. LIABILITY OF GUARDIAN OR GUARDIANSHIP PROGRAM | ||
[Chapters 1165-1200 reserved for expansion] | ||
SUBTITLE F. EVALUATION, MODIFICATION, OR TERMINATION OF | ||
GUARDIANSHIP | ||
CHAPTER 1201. EVALUATION OF GUARDIANSHIP | ||
CHAPTER 1202. MODIFICATION OR TERMINATION OF GUARDIANSHIP | ||
CHAPTER 1203. RESIGNATION, REMOVAL, OR DEATH OF GUARDIAN; | ||
APPOINTMENT OF SUCCESSOR | ||
CHAPTER 1204. FINAL SETTLEMENT, ACCOUNTING, AND DISCHARGE | ||
[Chapters 1205-1250 reserved for expansion] | ||
SUBTITLE G. SPECIAL TYPES OF GUARDIANSHIPS | ||
CHAPTER 1251. TEMPORARY GUARDIANSHIPS | ||
CHAPTER 1252. GUARDIANSHIPS FOR NONRESIDENT WARDS | ||
CHAPTER 1253. INTERSTATE GUARDIANSHIPS | ||
[Chapters 1254-1300 reserved for expansion] | ||
SUBTITLE H. COURT-AUTHORIZED TRUSTS AND ACCOUNTS | ||
CHAPTER 1301. MANAGEMENT TRUSTS | ||
CHAPTER 1302. POOLED TRUST SUBACCOUNTS | ||
[Chapters 1303-1350 reserved for expansion] | ||
SUBTITLE I. OTHER SPECIAL PROCEEDINGS AND ALTERNATIVES TO | ||
GUARDIANSHIP | ||
CHAPTER 1351. SALE OF PROPERTY OF CERTAIN INCAPACITATED PERSONS | ||
CHAPTER 1352. MORTGAGE OF MINOR'S INTEREST IN RESIDENCE HOMESTEAD | ||
CHAPTER 1353. MANAGEMENT AND CONTROL OF INCAPACITATED SPOUSE'S | ||
PROPERTY | ||
CHAPTER 1354. RECEIVERSHIP FOR ESTATES OF CERTAIN INCAPACITATED | ||
PERSONS | ||
CHAPTER 1355. PAYMENT OF CERTAIN CLAIMS WITHOUT GUARDIANSHIP | ||
CHAPTER 1356. COURT APPROVAL OF CERTAIN ARTS AND ENTERTAINMENT, | ||
ADVERTISEMENT, AND SPORTS CONTRACTS | ||
[Subtitles J-X reserved for expansion] | ||
SUBTITLE Y. TEXAS PROBATE CODE: SCOPE, JURISDICTION, AND VENUE | ||
PART 1. GENERAL PROVISIONS | ||
SUBPART A. PROCEEDINGS IN REM | ||
[Reserved for expansion] | ||
PART 2. GUARDIANSHIP PROCEEDINGS AND MATTERS | ||
SUBPART A. JURISDICTION | ||
[Reserved for expansion] | ||
SUBPART B. VENUE | ||
[Reserved for expansion] | ||
SUBPART C. DUTIES AND RECORDS OF CLERK | ||
[Reserved for expansion] | ||
SUBTITLE Z. TEXAS PROBATE CODE: ADDITIONAL GUARDIANSHIP PROVISIONS | ||
PART 2. GUARDIANSHIP PROCEEDINGS AND MATTERS | ||
SUBPART H. COMPENSATION, EXPENSES, AND COURT COSTS | ||
[Reserved for expansion] | ||
TITLE 3. GUARDIANSHIP AND RELATED PROCEDURES | ||
CHAPTER 1001. PURPOSE AND CONSTRUCTION | ||
Sec. 1001.001. POLICY; PURPOSE OF GUARDIANSHIP | ||
Sec. 1001.002. LAWS APPLICABLE TO GUARDIANSHIPS | ||
Sec. | 1001.003. REFERENCES IN LAW MEANING INCAPACITATED | |
PERSON | ||
CHAPTER 1001. PURPOSE AND CONSTRUCTION | ||
. (a) A | ||
court may appoint a guardian with either full or limited authority | ||
over an incapacitated person as indicated by the incapacitated | ||
person's actual mental or physical limitations and only as | ||
necessary to promote and protect the well-being of the | ||
incapacitated person. | ||
(b) In creating a guardianship that gives a guardian limited | ||
authority over an incapacitated person, the court shall design the | ||
guardianship to encourage the development or maintenance of maximum | ||
self-reliance and independence in the incapacitated person. (Tex. | ||
Prob. Code, Sec. 602 (part).) | ||
. To the | ||
extent applicable and not inconsistent with other provisions of | ||
this code, the laws and rules governing estates of decedents apply | ||
to guardianships. (Tex. Prob. Code, Sec. 603(a).) | ||
PERSON | ||
following means an incapacitated person: | ||
(1) a person who is mentally, physically, or legally | ||
incompetent; | ||
(2) a person who is judicially declared incompetent; | ||
(3) an incompetent or an incompetent person; | ||
(4) a person of unsound mind; or | ||
(5) a habitual drunkard. (Tex. Prob. Code, Sec. 603(b).) | ||
DEFINITIONS | ||
CHAPTER 1002. | DEFINITIONS | |
Sec. 1002.001. APPLICABILITY OF DEFINITIONS | ||
Sec. 1002.002. ATTORNEY AD LITEM | ||
Sec. 1002.003. AUTHORIZED CORPORATE SURETY | ||
Sec. 1002.004. CHILD | ||
Sec. 1002.005. CLAIM | ||
Sec. 1002.006. COMMUNITY ADMINISTRATOR | ||
Sec. 1002.007. CORPORATE FIDUCIARY | ||
Sec. | 1002.008. COURT; PROBATE COURT; STATUTORY PROBATE | |
COURT | ||
Sec. 1002.009. COURT INVESTIGATOR | ||
Sec. 1002.010. ESTATE; GUARDIANSHIP ESTATE | ||
Sec. 1002.011. EXEMPT PROPERTY | ||
Sec. 1002.012. GUARDIAN | ||
Sec. 1002.013. GUARDIAN AD LITEM | ||
Sec. 1002.014. GUARDIANSHIP CERTIFICATION BOARD | ||
Sec. | 1002.015. GUARDIANSHIP MATTER; GUARDIANSHIP | |
GUARDIANSHIP | ||
Sec. 1002.016. GUARDIANSHIP PROGRAM | ||
Sec. 1002.017. INCAPACITATED PERSON | ||
Sec. 1002.018. INTERESTED PERSON; PERSON INTERESTED | ||
Sec. 1002.019. MINOR | ||
Sec. 1002.020. MORTGAGE; LIEN | ||
Sec. 1002.021. NEXT OF KIN | ||
Sec. 1002.022. PARENT | ||
Sec. 1002.023. PERSON | ||
Sec. 1002.024. PERSONAL PROPERTY | ||
Sec. 1002.025. PRIVATE PROFESSIONAL GUARDIAN | ||
Sec. 1002.026. PROPOSED WARD | ||
Sec. 1002.027. REAL PROPERTY | ||
Sec. 1002.028. REPRESENTATIVE; PERSONAL REPRESENTATIVE | ||
Sec. 1002.029. SURETY | ||
Sec. 1002.030. WARD | ||
CHAPTER 1002. DEFINITIONS | ||
. The | ||
definition for a term provided by this chapter applies in this | ||
title. (Tex. Prob. Code, Sec. 601 (part).) | ||
. "Attorney ad litem" | ||
means an attorney appointed by a court to represent and advocate on | ||
behalf of a proposed ward, an incapacitated person, or an unborn | ||
person in a guardianship proceeding. (Tex. Prob. Code, Sec. | ||
601(1).) | ||
. "Authorized | ||
corporate surety" means a domestic or foreign corporation | ||
authorized to engage in business in this state to issue surety, | ||
guaranty, or indemnity bonds that guarantee the fidelity of a | ||
guardian. (Tex. Prob. Code, Sec. 601(2).) | ||
. "Child" includes a biological child | ||
and an adopted child, regardless of whether the child was adopted by | ||
a parent under a statutory procedure or by acts of estoppel. (Tex. | ||
Prob. Code, Sec. 601(3).) | ||
. "Claim" includes: | ||
(1) a liability against the estate of an incapacitated | ||
person; and | ||
(2) a debt due to the estate of an incapacitated | ||
person. (Tex. Prob. Code, Sec. 601(4).) | ||
. "Community | ||
administrator" means a spouse who, on the judicial declaration of | ||
incapacity of the other spouse, is authorized to manage, control, | ||
and dispose of the entire community estate, including the part of | ||
the community estate the incapacitated spouse legally has the power | ||
to manage in the absence of the incapacity. (Tex. Prob. Code, Sec. | ||
601(5).) | ||
. "Corporate fiduciary" | ||
means a financial institution, as defined by Section 201.101, | ||
Finance Code, that: | ||
(1) is existing or engaged in business under the laws | ||
of this state, another state, or the United States; | ||
(2) has trust powers; and | ||
(3) is authorized by law to act under the order or | ||
appointment of a court of record, without giving bond, as guardian, | ||
receiver, trustee, executor, administrator, or, although the | ||
financial institution does not have general depository powers, | ||
depository for any money paid into the court, or to become sole | ||
guarantor or surety in or on any bond required to be given under the | ||
laws of this state. (Tex. Prob. Code, Sec. 601(6).) | ||
COURT | ||
(1) a county court exercising its probate | ||
jurisdiction; | ||
(2) a court created by statute and authorized to | ||
exercise original probate jurisdiction; or | ||
(3) a district court exercising original probate | ||
jurisdiction in a contested matter. | ||
(b) "Statutory probate court" means a court created by | ||
statute and designated as a statutory probate court under Chapter | ||
25, Government Code. The term does not include a county court at | ||
law exercising probate jurisdiction unless the court is designated | ||
a statutory probate court under Chapter 25, Government Code. (Tex. | ||
Prob. Code, Secs. 601(8), (29).) | ||
. "Court investigator" | ||
means a person appointed by the judge of a statutory probate court | ||
under Section 25.0025, Government Code. (Tex. Prob. Code, Sec. | ||
601(7).) | ||
. "Estate" or | ||
"guardianship estate" means a ward's or deceased ward's property, | ||
as that property: | ||
(1) exists originally and changes in form by sale, | ||
reinvestment, or otherwise; | ||
(2) is augmented by any accretions and other additions | ||
to the property, including any property to be distributed to the | ||
deceased ward's representative by the trustee of a trust that | ||
terminates on the ward's death, or substitutions for the property; | ||
and | ||
(3) is diminished by any decreases in or distributions | ||
from the property. (Tex. Prob. Code, Sec. 601(9).) | ||
. "Exempt property" means | ||
the property in a deceased ward's estate that is exempt from | ||
execution or forced sale by the constitution or laws of this state, | ||
and any allowance paid instead of that property. (Tex. Prob. Code, | ||
Sec. 601(10).) | ||
. (a) "Guardian" means a person | ||
appointed as a: | ||
(1) guardian under Subchapter D, Chapter 1101; | ||
(2) successor guardian; or | ||
(3) temporary guardian. | ||
(b) Except as expressly provided otherwise, "guardian" | ||
includes: | ||
(1) the guardian of the estate of an incapacitated | ||
person; and | ||
(2) the guardian of the person of an incapacitated | ||
person. (Tex. Prob. Code, Sec. 601(11).) | ||
. "Guardian ad litem" | ||
means a person appointed by a court to represent the best interests | ||
of an incapacitated person in a guardianship proceeding. (Tex. | ||
Prob. Code, Sec. 601(12).) | ||
. | ||
"Guardianship Certification Board" means the Guardianship | ||
Certification Board established under Chapter 111, Government | ||
Code. (Tex. Prob. Code, Sec. 601(12-a).) | ||
PROCEEDING; PROCEEDINGS IN GUARDIANSHIP; PROCEEDINGS FOR | ||
GUARDIANSHIP | ||
proceeding," "proceedings in guardianship," and "proceedings for | ||
guardianship" are synonymous and include a matter or proceeding | ||
relating to a guardianship or any other matter addressed by this | ||
title. (Tex. Prob. Code, Sec. 601(25).) | ||
. "Guardianship | ||
program" has the meaning assigned by Section 111.001, Government | ||
Code. (Tex. Prob. Code, Sec. 601(13).) | ||
. "Incapacitated | ||
person" means: | ||
(1) a minor; | ||
(2) an adult who, because of a physical or mental | ||
condition, is substantially unable to: | ||
(A) provide food, clothing, or shelter for | ||
himself or herself; | ||
(B) care for the person's own physical health; or | ||
(C) manage the person's own financial affairs; or | ||
(3) a person who must have a guardian appointed for the | ||
person to receive funds due the person from a governmental source. | ||
(Tex. Prob. Code, Sec. 601(14).) | ||
. | ||
"Interested person" or "person interested" means: | ||
(1) an heir, devisee, spouse, creditor, or any other | ||
person having a property right in or claim against an estate being | ||
administered; or | ||
(2) a person interested in the welfare of an | ||
incapacitated person. (Tex. Prob. Code, Sec. 601(15).) | ||
. "Minor" means a person younger than | ||
18 years of age who: | ||
(1) has never been married; and | ||
(2) has not had the disabilities of minority removed | ||
for general purposes. (Tex. Prob. Code, Sec. 601(16).) | ||
. "Mortgage" and "lien" | ||
include: | ||
(1) a deed of trust; | ||
(2) a vendor's lien; | ||
(3) a mechanic's, materialman's, or laborer's lien; | ||
(4) a judgment, attachment, or garnishment lien; | ||
(5) a federal or state tax lien; | ||
(6) a chattel mortgage; and | ||
(7) a pledge by hypothecation. (Tex. Prob. Code, Sec. | ||
601(18).) | ||
. "Next of kin" includes: | ||
(1) an adopted child; | ||
(2) an adopted child's descendants; and | ||
(3) the adoptive parent of an adopted child. (Tex. | ||
Prob. Code, Sec. 601(19).) | ||
. "Parent" means the mother of a | ||
child, a man presumed to be the biological father of a child, a man | ||
who has been adjudicated to be the biological father of a child by a | ||
court of competent jurisdiction, or an adoptive mother or father of | ||
a child, but does not include a parent as to whom the parent-child | ||
relationship has been terminated. (Tex. Prob. Code, Sec. 601(20).) | ||
. (a) "Person" includes a natural | ||
person, a corporation, and a guardianship program. | ||
(b) The definition of "person" assigned by Section 311.005, | ||
Government Code, does not apply to any provision in this title. | ||
(Tex. Prob. Code, Sec. 601(21); New.) | ||
. "Personal property" | ||
includes an interest in: | ||
(1) goods; | ||
(2) money; | ||
(3) a chose in action; | ||
(4) an evidence of debt; and | ||
(5) a real chattel. (Tex. Prob. Code, Sec. 601(22).) | ||
. "Private | ||
professional guardian" has the meaning assigned by Section 111.001, | ||
Government Code. (Tex. Prob. Code, Sec. 601(24).) | ||
. "Proposed ward" means a | ||
person alleged in a guardianship proceeding to be incapacitated. | ||
(Tex. Prob. Code, Sec. 601(27).) | ||
. "Real property" includes | ||
estates and interests in land, whether corporeal or incorporeal or | ||
legal or equitable. The term does not include a real chattel. | ||
(Tex. Prob. Code, Sec. 601(28).) | ||
. | ||
"Representative" and "personal representative" include: | ||
(1) a guardian; and | ||
(2) a successor guardian. (Tex. Prob. Code, Sec. | ||
601(23).) | ||
. "Surety" includes a personal surety | ||
and a corporate surety. (Tex. Prob. Code, Sec. 601(30).) | ||
. "Ward" means a person for whom a | ||
guardian has been appointed. (Tex. Prob. Code, Sec. 601(31).) | ||
[Chapters 1003-1030 reserved for expansion] | ||
SUBTITLE B. SCOPE, JURISDICTION, AND VENUE | ||
[Chapters 1031-1050 reserved] | ||
GENERAL | ||
CHAPTER 1051. NOTICES AND PROCESS IN GUARDIANSHIP PROCEEDINGS IN | GENERAL | |
GENERAL | ||
SUBCHAPTER A. ISSUANCE AND FORM OF NOTICE OR PROCESS | ||
Sec. | 1051.001. ISSUANCE OF NOTICE OR PROCESS IN | |
GENERAL | ||
Sec. 1051.002. DIRECTION OF WRIT OR OTHER PROCESS | ||
Sec. 1051.003. CONTENTS OF CITATION OR NOTICE | ||
[Sections 1051.004-1051.050 reserved for expansion] | ||
SUBCHAPTER B. METHODS OF SERVING CITATION OR NOTICE; PERSONS TO BE | SERVED | |
SERVED | ||
Sec. 1051.051. PERSONAL SERVICE | ||
Sec. 1051.052. SERVICE BY MAIL | ||
Sec. 1051.053. SERVICE BY POSTING | ||
Sec. 1051.054. SERVICE BY PUBLICATION | ||
Sec. 1051.055. SERVICE ON PARTY'S ATTORNEY OF RECORD | ||
Sec. 1051.056. SERVICE ON GUARDIAN OR RECEIVER | ||
[Sections 1051.057-1051.100 reserved for expansion] | ||
SUBCHAPTER C. NOTICE AND CITATION REQUIRED FOR APPLICATION FOR | GUARDIANSHIP | |
GUARDIANSHIP | ||
Sec. | 1051.101. NOTICE REQUIRED FOR APPLICATION FOR | |
NOT REQUIRED | ||
Sec. | 1051.102. ISSUANCE OF CITATION FOR APPLICATION | |
FOR GUARDIANSHIP | ||
Sec. | 1051.103. SERVICE OF CITATION FOR APPLICATION FOR | |
GUARDIANSHIP | ||
Sec. 1051.104. NOTICE BY APPLICANT FOR GUARDIANSHIP | ||
Sec. | 1051.105. WAIVER OF NOTICE OF APPLICATION FOR | |
GUARDIANSHIP | ||
Sec. | 1051.106. ACTION BY COURT ON APPLICATION FOR | |
GUARDIANSHIP | ||
[Sections 1051.107-1051.150 reserved for expansion] | ||
SUBCHAPTER D. RETURN AND PROOF OF SERVICE OF CITATION OR NOTICE | ||
Sec. | 1051.151. REQUIREMENTS FOR RETURN ON CITATION OR | |
NOTICE SERVED BY PERSONAL SERVICE | ||
Sec. | 1051.152. VALIDITY OF SERVICE AND RETURN ON | |
CITATION OR NOTICE SERVED BY POSTING | ||
Sec. 1051.153. PROOF OF SERVICE | ||
Sec. 1051.154. RETURN TO COURT | ||
[Sections 1051.155-1051.200 reserved for expansion] | ||
SUBCHAPTER E. | ALTERNATIVE MANNER OF ISSUANCE, SERVICE, AND RETURN | |
Sec. | 1051.201. COURT-ORDERED ISSUANCE, SERVICE, AND | |
RETURN UNDER CERTAIN CIRCUMSTANCES | ||
[Sections 1051.202-1051.250 reserved for expansion] | ||
SUBCHAPTER F. ADDITIONAL NOTICE PROVISIONS | ||
Sec. 1051.251. WAIVER OF NOTICE OF HEARING | ||
Sec. | 1051.252. REQUEST FOR NOTICE OF FILING OF | |
PLEADING | ||
Sec. | 1051.253. SERVICE OF NOTICE OF INTENTION TO TAKE | |
DEPOSITIONS IN CERTAIN MATTERS | ||
CHAPTER 1051. NOTICES AND PROCESS IN GUARDIANSHIP PROCEEDINGS IN | ||
GENERAL | ||
SUBCHAPTER A. ISSUANCE AND FORM OF NOTICE OR PROCESS | ||
. | ||
(a) Except as provided by Subsection (b), a person is not required | ||
to be cited or otherwise given notice in a guardianship matter | ||
except in a situation in which this title expressly provides for | ||
citation or the giving of notice. | ||
(b) If this title does not expressly provide for citation or | ||
the issuance or return of notice in a guardianship matter, the court | ||
may require that notice be given. A court that requires that notice | ||
be given shall prescribe the form and manner of service of the | ||
notice and the return of service. | ||
(c) Unless a court order is required by this title, the | ||
county clerk without a court order shall issue: | ||
(1) necessary citations, writs, and other process in a | ||
guardianship matter; and | ||
(2) all notices not required to be issued by a | ||
guardian. (Tex. Prob. Code, Secs. 632(a), (b).) | ||
. (a) A | ||
writ or other process other than a citation or notice must be | ||
directed "To any sheriff or constable within the State of Texas." | ||
(b) Notwithstanding Subsection (a), a writ or other process | ||
other than a citation or notice may not be held defective because | ||
the process is directed to the sheriff or a constable of a named | ||
county if the process is properly served within that county by an | ||
officer authorized to serve the process. (Tex. Prob. Code, Sec. | ||
632(c) (part).) | ||
. (a) A | ||
citation or notice must: | ||
(1) be directed to the person to be cited or notified; | ||
(2) be dated; | ||
(3) state the style and number of the proceeding; | ||
(4) state the court in which the proceeding is | ||
pending; | ||
(5) describe generally the nature of the proceeding or | ||
matter to which the citation or notice relates; | ||
(6) direct the person being cited or notified to | ||
appear by filing a written contest or answer or to perform another | ||
required action; and | ||
(7) state when and where the appearance or performance | ||
described by Subdivision (6) is required. | ||
(b) A citation or notice issued by the county clerk must be | ||
styled "The State of Texas" and be signed by the clerk under the | ||
clerk's seal. | ||
(c) A notice required to be given by a guardian must be in | ||
writing and be signed by the guardian in the guardian's official | ||
capacity. | ||
(d) A citation or notice is not required to contain a | ||
precept directed to an officer, but may not be held defective | ||
because the citation or notice contains a precept directed to an | ||
officer authorized to serve the citation or notice. (Tex. Prob. | ||
Code, Sec. 632(c) (part).) | ||
[Sections 1051.004-1051.050 reserved for expansion] | ||
SUBCHAPTER B. METHODS OF SERVING CITATION OR NOTICE; PERSONS TO BE | ||
SERVED | ||
. (a) Except as otherwise | ||
provided by Subsection (b), if personal service of citation or | ||
notice is required, the citation or notice must be served on the | ||
attorney of record for the person to be cited or notified. | ||
Notwithstanding the requirement of personal service, service may be | ||
made on that attorney by any method specified by Section 1051.055 | ||
for service on an attorney of record. | ||
(b) If the person to be cited or notified does not have an | ||
attorney of record in the proceeding, or if an attempt to serve the | ||
person's attorney is unsuccessful: | ||
(1) the sheriff or constable shall serve the citation | ||
or notice by delivering a copy of the citation or notice to the | ||
person to be cited or notified, in person, if the person to whom the | ||
citation or notice is directed is in this state; or | ||
(2) a disinterested person competent to make an oath | ||
that the citation or notice was served may serve the citation or | ||
notice, if the person to be cited or notified is absent from or is | ||
not a resident of this state. | ||
(c) The return day of the citation or notice served under | ||
Subsection (b) must be at least 10 days after the date of service, | ||
excluding the date of service. | ||
(d) If the citation or notice attempted to be served as | ||
provided by Subsection (b) is returned with the notation that the | ||
person sought to be served, whether inside or outside this state, | ||
cannot be found, the county clerk shall issue a new citation or | ||
notice. Service of the new citation or notice must be made by | ||
publication. (Tex. Prob. Code, Sec. 632(f)(1) (part).) | ||
. (a) The county clerk, or | ||
the guardian if required by statute or court order, shall serve a | ||
citation or notice required or permitted to be served by regular | ||
mail by mailing the original citation or notice to the person to be | ||
cited or notified. | ||
(b) Except as provided by Subsection (c), the county clerk | ||
shall issue a citation or notice required or permitted to be served | ||
by registered or certified mail and shall serve the citation or | ||
notice by mailing the original citation or notice by registered or | ||
certified mail. | ||
(c) A guardian shall issue a notice required to be given by | ||
the guardian by registered or certified mail and shall serve the | ||
notice by mailing the original notice by registered or certified | ||
mail. | ||
(d) The county clerk or guardian, as applicable, shall mail | ||
a citation or notice under Subsection (b) or (c) with an instruction | ||
to deliver the citation or notice to the addressee only and with | ||
return receipt requested. The clerk or guardian, as applicable, | ||
shall address the envelope containing the citation or notice to: | ||
(1) the attorney of record in the proceeding for the | ||
person to be cited or notified; or | ||
(2) the person to be cited or notified, if the citation | ||
or notice to the attorney is returned undelivered or the person to | ||
be cited or notified has no attorney of record in the proceeding. | ||
(e) Service by mail must be made at least 20 days before the | ||
return day of the citation or notice, excluding the date of service. | ||
The date of service by mail is the date of mailing. | ||
(f) A copy of a citation or notice served under Subsection | ||
(a), (b), or (c) and a certificate of the person serving the | ||
citation or notice showing that the citation or notice was mailed | ||
and the date of the mailing shall be filed and recorded. A returned | ||
receipt for a citation or notice served under Subsection (b) or (c) | ||
shall be attached to the certificate. | ||
(g) If a citation or notice served by mail is returned | ||
undelivered, a new citation or notice shall be issued. Service of | ||
the new citation or notice must be made by posting. (Tex. Prob. | ||
Code, Sec. 632(f)(4).) | ||
. (a) The county clerk | ||
shall deliver the original and a copy of a citation or notice | ||
required to be posted to the sheriff or a constable of the county in | ||
which the proceeding is pending. The sheriff or constable shall | ||
post the copy at the door of the county courthouse or the location | ||
in or near the courthouse where public notices are customarily | ||
posted. | ||
(b) Citation or notice under this section must be posted for | ||
at least 10 days before the return day of the citation or notice, | ||
excluding the date of posting, except as provided by Section | ||
1051.152(b). The date of service of citation or notice by posting | ||
is the date of posting. | ||
(c) A sheriff or constable who posts a copy of a citation or | ||
notice under this section shall return the original citation or | ||
notice to the county clerk and state the date and location of the | ||
posting in a written return of the copy of the citation or notice. | ||
(d) The method of service prescribed by this section applies | ||
when a guardian is required or permitted to post a notice. The | ||
notice must be: | ||
(1) issued in the name of the guardian; | ||
(2) addressed and delivered to, and posted and | ||
returned by, the appropriate officer; and | ||
(3) filed with the county clerk. (Tex. Prob. Code, | ||
Sec. 632(f)(2).) | ||
. (a) Citation or | ||
notice to a person to be served by publication shall be published | ||
one time in a newspaper of general circulation in the county in | ||
which the proceeding is pending. The publication must be made at | ||
least 10 days before the return day of the citation or notice, | ||
excluding the date of publication. | ||
(b) The date of service of citation or notice by publication | ||
is the date of publication printed on the newspaper in which the | ||
citation or notice is published. | ||
(c) If there is not a newspaper of general circulation | ||
published or printed in the county in which the citation or notice | ||
is to be published, the citation or notice under Subsection (a) | ||
shall be served by posting. (Tex. Prob. Code, Sec. 632(f)(3).) | ||
. (a) | ||
If a party is represented by an attorney of record in a guardianship | ||
proceeding, a citation or notice required to be served on the party | ||
shall be served instead on that attorney. | ||
(b) A notice served on an attorney under this section may be | ||
served by: | ||
(1) delivery to the attorney in person; | ||
(2) registered or certified mail, return receipt | ||
requested; or | ||
(3) any other form of mail that requires proof of | ||
delivery. | ||
(c) A notice or citation may be served on an attorney under | ||
this section by: | ||
(1) another party to the proceeding; | ||
(2) the attorney of record for another party to the | ||
proceeding; | ||
(3) an appropriate sheriff or constable; or | ||
(4) another person competent to testify. | ||
(d) Each of the following is prima facie evidence of the | ||
fact that service has been made under this section: | ||
(1) the written statement of an attorney of record | ||
showing service; | ||
(2) the return of the officer showing service; and | ||
(3) the affidavit of a person showing service. | ||
(e) Except as provided by Section 1051.105, an attorney ad | ||
litem may not waive personal service of citation. (Tex. Prob. Code, | ||
Sec. 634.) | ||
. Unless | ||
this title expressly provides for another method of service, the | ||
county clerk who issues a citation or notice required to be served | ||
on a guardian or receiver shall serve the citation or notice by | ||
mailing the original citation or notice by registered or certified | ||
mail to: | ||
(1) the guardian's or receiver's attorney of record; | ||
or | ||
(2) the guardian or receiver, if the guardian or | ||
receiver does not have an attorney of record. (Tex. Prob. Code, | ||
Sec. 632(e).) | ||
[Sections 1051.057-1051.100 reserved for expansion] | ||
SUBCHAPTER C. NOTICE AND CITATION REQUIRED FOR APPLICATION FOR | ||
GUARDIANSHIP | ||
GUARDIANSHIP; CITATION OF APPLICANT NOT REQUIRED | ||
of an application for guardianship, notice shall be issued and | ||
served as provided by this subchapter. | ||
(b) It is not necessary to serve a citation on a person who | ||
files an application for the creation of a guardianship under this | ||
title or for that person to waive the issuance and personal service | ||
of citation under this subchapter. (Tex. Prob. Code, Secs. 633(a), | ||
(g).) | ||
GUARDIANSHIP | ||
the court clerk shall issue a citation stating: | ||
(1) that the application was filed; | ||
(2) the name of the proposed ward; | ||
(3) the name of the applicant; and | ||
(4) the name of the person to be appointed guardian as | ||
provided in the application, if that person is not the applicant. | ||
(b) The citation must cite all persons interested in the | ||
welfare of the proposed ward to appear at the time and place stated | ||
in the notice if the persons wish to contest the application. | ||
(c) The citation shall be posted. (Tex. Prob. Code, Sec. | ||
633(b).) | ||
GUARDIANSHIP | ||
citation to appear and answer an application for guardianship on: | ||
(1) a proposed ward who is 12 years of age or older; | ||
(2) the proposed ward's parents, if the whereabouts of | ||
the parents are known or can be reasonably ascertained; | ||
(3) any court-appointed conservator or person having | ||
control of the care and welfare of the proposed ward; | ||
(4) the proposed ward's spouse, if the whereabouts of | ||
the spouse are known or can be reasonably ascertained; and | ||
(5) the person named in the application to be | ||
appointed guardian, if that person is not the applicant. (Tex. | ||
Prob. Code, Sec. 633(c).) | ||
. (a) | ||
The person filing an application for guardianship shall mail a copy | ||
of the application and a notice containing the information required | ||
in the citation issued under Section 1051.102 by registered or | ||
certified mail, return receipt requested, or by any other form of | ||
mail that provides proof of delivery, to the following persons, if | ||
their whereabouts are known or can be reasonably ascertained: | ||
(1) each adult child of the proposed ward; | ||
(2) each adult sibling of the proposed ward; | ||
(3) the administrator of a nursing home facility or | ||
similar facility in which the proposed ward resides; | ||
(4) the operator of a residential facility in which | ||
the proposed ward resides; | ||
(5) a person whom the applicant knows to hold a power | ||
of attorney signed by the proposed ward; | ||
(6) a person designated to serve as guardian of the | ||
proposed ward by a written declaration under Subchapter E, Chapter | ||
1104, if the applicant knows of the existence of the declaration; | ||
(7) a person designated to serve as guardian of the | ||
proposed ward in the probated will of the last surviving parent of | ||
the proposed ward; | ||
(8) a person designated to serve as guardian of the | ||
proposed ward by a written declaration of the proposed ward's last | ||
surviving parent, if the declarant is deceased and the applicant | ||
knows of the existence of the declaration; and | ||
(9) each person named as next of kin in the application | ||
as required by Section 1101.001(b)(11) or (13). | ||
(b) The applicant shall file with the court: | ||
(1) a copy of any notice required by Subsection (a) and | ||
the proofs of delivery of the notice; and | ||
(2) an affidavit sworn to by the applicant or the | ||
applicant's attorney stating: | ||
(A) that the notice was mailed as required by | ||
Subsection (a); and | ||
(B) the name of each person to whom the notice was | ||
mailed, if the person's name is not shown on the proof of delivery. | ||
(c) Failure of the applicant to comply with Subsections | ||
(a)(2)-(9) does not affect the validity of a guardianship created | ||
under this title. (Tex. Prob. Code, Secs. 633(d), (d-1), (f) | ||
(part).) | ||
GUARDIANSHIP | ||
to receive notice or personal service of citation under Sections | ||
1051.103 and 1051.104(a) may, by writing filed with the clerk, | ||
waive the receipt of notice or the issuance and personal service of | ||
citation either in person or through an attorney ad litem. (Tex. | ||
Prob. Code, Sec. 633(e).) | ||
GUARDIANSHIP | ||
creation of a guardianship until the applicant has complied with | ||
Section 1051.104(b) and not earlier than the Monday following the | ||
expiration of the 10-day period beginning on the date service of | ||
notice and citation has been made as provided by Sections 1051.102, | ||
1051.103, and 1051.104(a)(1). (Tex. Prob. Code, Sec. 633(f) | ||
(part).) | ||
[Sections 1051.107-1051.150 reserved for expansion] | ||
SUBCHAPTER D. RETURN AND PROOF OF SERVICE OF CITATION OR NOTICE | ||
NOTICE SERVED BY PERSONAL SERVICE | ||
a citation or notice under Section 1051.051 must: | ||
(1) be endorsed on or attached to the citation or | ||
notice; | ||
(2) state the date and place of service; | ||
(3) certify that a copy of the citation or notice was | ||
delivered to the person directed to be served; | ||
(4) be subscribed and sworn to before, and under the | ||
hand and official seal of, an officer authorized by the laws of this | ||
state to take an affidavit; and | ||
(5) be returned to the county clerk who issued the | ||
citation or notice. (Tex. Prob. Code, Sec. 632(f)(1) (part).) | ||
OR NOTICE SERVED BY POSTING | ||
guardianship matter that is required to be served by posting and is | ||
issued in conformity with this title, and the service of and return | ||
of the citation or notice, is valid if: | ||
(1) a sheriff or constable posts a copy of the citation | ||
or notice at the location or locations prescribed by this title; and | ||
(2) the posting occurs on a day preceding the return | ||
day of service specified in the citation or notice that provides | ||
sufficient time for the period the citation or notice must be posted | ||
to expire before the specified return day. | ||
(b) The fact that the sheriff or constable, as applicable, | ||
makes the return of service on the citation or notice described by | ||
Subsection (a) and returns the citation or notice on which the | ||
return has been made to the court before the expiration of the | ||
period the citation or notice must be posted does not affect the | ||
validity of the citation or notice or the service or return of | ||
service. This subsection applies even if the sheriff or constable | ||
makes the return of service and returns the citation or notice to | ||
the court on the same day the citation or notice is issued. (Tex. | ||
Prob. Code, Sec. 632(h).) | ||
. (a) Proof of service in | ||
each case requiring citation or notice must be filed before a | ||
hearing. | ||
(b) Proof of service consists of: | ||
(1) if the service is made by a sheriff or constable, | ||
the return of service; | ||
(2) if the service is made by a private person, the | ||
person's affidavit; | ||
(3) if the service is made by mail: | ||
(A) the certificate of the county clerk making | ||
the service, or the affidavit of the guardian or other person making | ||
the service that states that the citation or notice was mailed and | ||
the date of the mailing; and | ||
(B) the return receipt attached to the | ||
certificate, if the mailing was by registered or certified mail and | ||
a receipt has been returned; and | ||
(4) if the service is made by publication, an | ||
affidavit that: | ||
(A) is made by the publisher of the newspaper in | ||
which the citation or notice was published or an employee of the | ||
publisher; | ||
(B) contains or to which is attached a copy of the | ||
published citation or notice; and | ||
(C) states the date of publication printed on the | ||
newspaper in which the citation or notice was published. (Tex. | ||
Prob. Code, Sec. 632(i).) | ||
. A citation or notice issued | ||
by a county clerk must be returned to the court from which the | ||
citation or notice was issued on the first Monday after the service | ||
is perfected. (Tex. Prob. Code, Sec. 632(g).) | ||
[Sections 1051.155-1051.200 reserved for expansion] | ||
SUBCHAPTER E. ALTERNATIVE MANNER OF ISSUANCE, SERVICE, AND RETURN | ||
UNDER CERTAIN CIRCUMSTANCES | ||
this title shall be issued, served, and returned in the manner | ||
specified by written order of the court in accordance with this | ||
title and the Texas Rules of Civil Procedure if: | ||
(1) an interested person requests that action; | ||
(2) a specific method is not provided by this title for | ||
giving the citation or notice; | ||
(3) a specific method is not provided by this title for | ||
the service and return of citation or notice; or | ||
(4) a provision with respect to a matter relating to | ||
citation or notice is inadequate. | ||
(b) Citation or notice issued, served, and returned in the | ||
manner specified by a court order as provided by Subsection (a) has | ||
the same effect as if the manner of service and return had been | ||
specified by this title. (Tex. Prob. Code, Sec. 632(d).) | ||
[Sections 1051.202-1051.250 reserved for expansion] | ||
SUBCHAPTER F. ADDITIONAL NOTICE PROVISIONS | ||
. (a) A | ||
competent person who is interested in a hearing in a guardianship | ||
proceeding may waive notice of the hearing in writing either in | ||
person or through an attorney. | ||
(b) A consul or other representative of a foreign government | ||
whose appearance has been entered as provided by law on behalf of a | ||
person residing in a foreign country may waive notice on the | ||
person's behalf. | ||
(c) A person who submits to the jurisdiction of the court in | ||
a hearing is considered to have waived notice of the hearing. (Tex. | ||
Prob. Code, Sec. 635.) | ||
. | ||
(a) At any time after an application is filed to commence a | ||
guardianship proceeding, a person interested in the estate or | ||
welfare of a ward or incapacitated person may file with the county | ||
clerk a written request to be notified of all, or any specified, | ||
motions, applications, or pleadings filed with respect to the | ||
proceeding by any person or by a person specifically designated in | ||
the request. A person filing a request under this section is | ||
responsible for payment of the fees and other costs of providing the | ||
requested documents, and the clerk may require a deposit to cover | ||
the estimated costs of providing the notice. The clerk shall send | ||
to the requestor by regular mail a copy of any requested document. | ||
(b) A county clerk's failure to comply with a request under | ||
this section does not invalidate a proceeding. (Tex. Prob. Code, | ||
Sec. 632(j).) | ||
DEPOSITIONS IN CERTAIN MATTERS | ||
in which there is no opposing party or attorney of record on whom to | ||
serve notice and copies of interrogatories, service may be made by | ||
posting notice of the intention to take depositions for a period of | ||
10 days as provided by Section 1051.053 governing a posting of | ||
notice. | ||
(b) When notice by posting under Subsection (a) is filed | ||
with the clerk, a copy of the interrogatories must also be filed. | ||
(c) At the expiration of the 10-day period prescribed by | ||
Subsection (a): | ||
(1) commission may issue for taking the depositions | ||
for which the notice was posted; and | ||
(2) the judge may file cross-interrogatories if no person appears. (Tex. Prob. Code, Sec. 649 (part).) | ||
FILING AND RECORDKEEPING | ||
CHAPTER 1052. | FILING AND RECORDKEEPING | |
SUBCHAPTER A. RECORDKEEPING REQUIREMENTS | ||
Sec. 1052.001. GUARDIANSHIP DOCKET | ||
Sec. 1052.002. CLAIM DOCKET | ||
Sec. 1052.003. GUARDIANSHIP FEE BOOK | ||
Sec. 1052.004. ALTERNATE RECORDKEEPING | ||
[Sections 1052.005-1052.050 reserved for expansion] | ||
SUBCHAPTER B. FILES; INDEX | ||
Sec. 1052.051. FILING PROCEDURES | ||
Sec. 1052.052. CASE FILES | ||
Sec. 1052.053. INDEX | ||
CHAPTER 1052. FILING AND RECORDKEEPING | ||
SUBCHAPTER A. RECORDKEEPING REQUIREMENTS | ||
. (a) The county clerk | ||
shall maintain a record book titled "Judge's Guardianship Docket" | ||
and shall record in the book: | ||
(1) the name of each person with respect to whom, or | ||
with respect to whose estate, a proceeding is commenced or sought to | ||
be commenced; | ||
(2) the name of the guardian of the estate or person or | ||
of the applicant for letters of guardianship; | ||
(3) the date each original application for a | ||
guardianship proceeding is filed; | ||
(4) a notation of each order, judgment, decree, and | ||
proceeding that occurs in each estate, including the date it | ||
occurs; and | ||
(5) the docket number of each guardianship as assigned | ||
under Subsection (b). | ||
(b) The county clerk shall assign a docket number to each | ||
guardianship in the order a proceeding is commenced. (Tex. Prob. | ||
Code, Sec. 623(a).) | ||
. (a) The county clerk shall | ||
maintain a record book titled "Claim Docket" and shall record in the | ||
book each claim that is presented against a guardianship for the | ||
court's approval. | ||
(b) The county clerk shall assign one or more pages of the | ||
record book to each guardianship. | ||
(c) The claim docket must be ruled in 16 columns at proper | ||
intervals from top to bottom, with a short note of the contents at | ||
the top of each column. The county clerk shall record for each | ||
claim, in the order the claims are filed, the following information | ||
in the respective columns, beginning with the first or marginal | ||
column: | ||
(1) the name of the claimant; | ||
(2) the amount of the claim; | ||
(3) the date of the claim; | ||
(4) the date the claim is filed; | ||
(5) the date the claim is due; | ||
(6) the date the claim begins bearing interest; | ||
(7) the interest rate; | ||
(8) the date the claim is allowed by the guardian, if | ||
applicable; | ||
(9) the amount allowed by the guardian, if applicable; | ||
(10) the date the claim is rejected, if applicable; | ||
(11) the date the claim is approved, if applicable; | ||
(12) the amount approved for the claim, if applicable; | ||
(13) the date the claim is disapproved, if applicable; | ||
(14) the class to which the claim belongs; | ||
(15) the date the claim is established by a judgment of | ||
a court, if applicable; and | ||
(16) the amount of the judgment established under | ||
Subdivision (15), if applicable. (Tex. Prob. Code, Sec. 624.) | ||
. (a) The county clerk | ||
shall maintain a record book titled "Guardianship Fee Book" and | ||
shall record in the book each item of cost that accrues to the | ||
officers of the court and any witness fees. | ||
(b) Each record entry must include: | ||
(1) the party to whom the cost or fee is due; | ||
(2) the date the cost or fee accrued; | ||
(3) the guardianship or party liable for the cost or | ||
fee; and | ||
(4) the date the cost or fee is paid. (Tex. Prob. | ||
Code, Sec. 626.) | ||
. Instead of | ||
maintaining the record books described by Sections 1052.001, | ||
1052.002, and 1052.003, the county clerk may maintain the | ||
information described by those sections relating to a person's | ||
guardianship proceeding: | ||
(1) on a computer file; | ||
(2) on microfilm; | ||
(3) in the form of a digitized optical image; or | ||
(4) in another similar form of data compilation. | ||
(Tex. Prob. Code, Sec. 627.) | ||
[Sections 1052.005-1052.050 reserved for expansion] | ||
SUBCHAPTER B. FILES; INDEX | ||
. (a) An application for a | ||
guardianship proceeding, complaint, petition, or other paper | ||
permitted or required by law to be filed with a court in a | ||
guardianship matter must be filed with the county clerk of the | ||
appropriate county. | ||
(b) Each paper filed in a guardianship proceeding must be | ||
given the docket number assigned to the estate. | ||
(c) On receipt of a paper described by Subsection (a), the | ||
county clerk shall: | ||
(1) file the paper; and | ||
(2) endorse on the paper: | ||
(A) the date the paper is filed; | ||
(B) the docket number; and | ||
(C) the clerk's official signature. (Tex. Prob. | ||
Code, Secs. 621, 623(b).) | ||
. (a) The county clerk shall | ||
maintain a case file for each person's filed guardianship | ||
proceedings. | ||
(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; | ||
(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. (Tex. Prob. | ||
Code, Sec. 625.) | ||
. (a) The county clerk shall properly | ||
index the records required under this chapter. | ||
(b) The county clerk shall keep the index open for public | ||
inspection but may not release the index from the clerk's custody. (Tex. Prob. Code, Sec. 627A.) | ||
CHAPTER 1053. OTHER COURT DUTIES AND PROCEDURES | ||
SUBCHAPTER A. ENFORCEMENT OF ORDERS | ||
Sec. 1053.001. ENFORCEMENT OF ORDERS | ||
[Sections 1053.002-1053.050 reserved for expansion] | ||
SUBCHAPTER B. COSTS AND SECURITY | ||
Sec. 1053.051. APPLICABILITY OF CERTAIN LAWS | ||
Sec. 1053.052. SECURITY FOR CERTAIN COSTS | ||
[Sections 1053.053-1053.100 reserved for expansion] | ||
SUBCHAPTER C. PROCEDURES FOR GUARDIANSHIP MATTERS | ||
Sec. 1053.101. CALLING OF DOCKETS | ||
Sec. 1053.102. SETTING OF CERTAIN HEARINGS BY CLERK | ||
Sec. | 1053.103. RENDERING OF DECISIONS, ORDERS, | |
DECREES, AND JUDGMENTS | ||
CHAPTER 1053. OTHER COURT DUTIES AND PROCEDURES | ||
SUBCHAPTER A. ENFORCEMENT OF ORDERS | ||
. A judge may enforce | ||
an order entered against a guardian by attachment and confinement. | ||
Unless this title expressly provides otherwise, the term of | ||
confinement for any one offense under this section may not exceed | ||
three days. (Tex. Prob. Code, Sec. 651.) | ||
[Sections 1053.002-1053.050 reserved for expansion] | ||
SUBCHAPTER B. COSTS AND SECURITY | ||
. A law | ||
regulating costs in ordinary civil cases applies to a guardianship | ||
matter unless otherwise expressly provided by this title. (Tex. | ||
Prob. Code, Sec. 622(a).) | ||
. (a) The clerk | ||
may require a person who files an application, complaint, or | ||
opposition relating to a guardianship matter, other than a | ||
guardian, attorney ad litem, or guardian ad litem, to provide | ||
security for the probable costs of the guardianship proceeding | ||
before filing the application, complaint, or opposition. | ||
(b) At any time before the trial of an application, | ||
complaint, or opposition described by Subsection (a), an officer of | ||
the court or a person interested in the guardianship or in the | ||
welfare of the ward may, by written motion, obtain from the court an | ||
order requiring the person who filed the application, complaint, or | ||
opposition to provide security for the probable costs of the | ||
proceeding. The rules governing civil suits in the county court | ||
with respect to providing security for the probable costs of a | ||
proceeding control in cases described by Subsection (a) and this | ||
subsection. | ||
(c) A guardian, attorney ad litem, or guardian ad litem | ||
appointed under this title by a court of this state may not be | ||
required to provide security for costs in an action brought by the | ||
guardian, attorney ad litem, or guardian ad litem in the | ||
guardian's, attorney ad litem's, or guardian ad litem's fiduciary | ||
capacity. (Tex. Prob. Code, Secs. 622(b), (c).) | ||
[Sections 1053.053-1053.100 reserved for expansion] | ||
SUBCHAPTER C. PROCEDURES FOR GUARDIANSHIP MATTERS | ||
. The judge in whose court | ||
a guardianship proceeding is pending, as determined by the judge, | ||
shall: | ||
(1) call guardianship matters in the matters' regular | ||
order on both the guardianship and claim dockets; and | ||
(2) issue necessary orders. (Tex. Prob. Code, Sec. | ||
629.) | ||
. (a) | ||
If a judge is unable to designate the time and place for hearing a | ||
guardianship matter pending in the judge's court because the judge | ||
is absent from the county seat or is on vacation, disqualified, ill, | ||
or deceased, the county clerk of the county in which the matter is | ||
pending may: | ||
(1) designate the time and place for hearing; | ||
(2) enter the setting on the judge's docket; and | ||
(3) certify on the docket the reason that the judge is | ||
not acting to set the hearing. | ||
(b) If, after the perfection of the service of notices and | ||
citations required by law concerning the time and place of hearing, | ||
a qualified judge is not present for a hearing set under Subsection | ||
(a), the hearing is automatically continued from day to day until a | ||
qualified judge is present to hear and determine the matter. (Tex. | ||
Prob. Code, Sec. 630.) | ||
JUDGMENTS | ||
judgment in a guardianship matter in open court, except as otherwise expressly provided. (Tex. Prob. Code, Sec. 650.) | ||
COURT OFFICERS AND COURT-APPOINTED PERSONS | ||
CHAPTER 1054. | COURT OFFICERS AND COURT-APPOINTED PERSONS | |
SUBCHAPTER A. ATTORNEYS AD LITEM AND INTERPRETERS | ||
Sec. | 1054.001. APPOINTMENT OF ATTORNEY AD LITEM IN | |
GUARDIAN | ||
Sec. 1054.002. TERM OF APPOINTMENT | ||
Sec. 1054.003. ACCESS TO RECORDS | ||
Sec. 1054.004. DUTIES | ||
Sec. 1054.005. APPOINTMENT OF INTERPRETER | ||
[Sections 1054.006-1054.050 reserved for expansion] | ||
SUBCHAPTER B. GUARDIANS AD LITEM | ||
Sec. | 1054.051. APPOINTMENT OF GUARDIAN AD LITEM IN | |
GUARDIANSHIP PROCEEDING | ||
Sec. | 1054.052. APPOINTMENT OF GUARDIAN AD LITEM | |
RELATING TO CERTAIN OTHER SUITS | ||
Sec. 1054.053. TERM OF CERTAIN APPOINTMENTS | ||
Sec. 1054.054. DUTIES | ||
Sec. 1054.055. COMPENSATION AND EXPENSES | ||
Sec. 1054.056. IMMUNITY | ||
[Sections 1054.057-1054.100 reserved for expansion] | ||
SUBCHAPTER C. COURT VISITORS | ||
Sec. | 1054.101. INAPPLICABILITY OF SUBCHAPTER TO | |
CERTAIN GUARDIANSHIPS | ||
Sec. 1054.102. OPERATION OF COURT VISITOR PROGRAM | ||
Sec. 1054.103. EVALUATION OF WARD OR PROPOSED WARD | ||
Sec. 1054.104. EVALUATION REPORT | ||
Sec. 1054.105. COMPENSATION | ||
[Sections 1054.106-1054.150 reserved for expansion] | ||
SUBCHAPTER D. COURT INVESTIGATORS | ||
Sec. | 1054.151. INVESTIGATION OF GUARDIANSHIP | |
APPLICATION | ||
Sec. 1054.152. GENERAL DUTIES | ||
Sec. 1054.153. INVESTIGATION REPORT | ||
Sec. 1054.154. EFFECT OF SUBCHAPTER ON OTHER LAW | ||
[Sections 1054.155-1054.200 reserved for expansion] | ||
SUBCHAPTER E. QUALIFICATIONS TO SERVE AS COURT-APPOINTED ATTORNEY | ||
Sec. 1054.201. CERTIFICATION REQUIRED | ||
Sec. 1054.202. CERTIFICATE EXPIRATION | ||
Sec. | 1054.203. ELIGIBILITY FOR APPOINTMENT ON | |
EXPIRATION OF CERTIFICATE | ||
CHAPTER 1054. COURT OFFICERS AND COURT-APPOINTED PERSONS | ||
SUBCHAPTER A. ATTORNEYS AD LITEM AND INTERPRETERS | ||
PROCEEDING FOR APPOINTMENT OF GUARDIAN | ||
title for the appointment of a guardian, the court shall appoint an | ||
attorney ad litem to represent the proposed ward's interests. | ||
(Tex. Prob. Code, Sec. 646(a) (part).) | ||
. Unless the court | ||
determines that the continued appointment of an attorney ad litem | ||
appointed under Section 1054.001 is in the ward's best interests, | ||
the attorney's term of appointment expires, without a court order, | ||
on the date the court: | ||
(1) appoints a guardian; or | ||
(2) denies the application for appointment of a | ||
guardian. (Tex. Prob. Code, Sec. 646(e).) | ||
. An attorney ad litem | ||
appointed under Section 1054.001 shall be provided copies of all of | ||
the current records in the guardianship case. The attorney may have | ||
access to all of the proposed ward's relevant medical, | ||
psychological, and intellectual testing records. (Tex. Prob. Code, | ||
Sec. 646(a) (part).) | ||
. (a) An attorney ad litem appointed | ||
under Section 1054.001 shall interview the proposed ward within a | ||
reasonable time before the hearing in the proceeding for the | ||
appointment of a guardian. To the greatest extent possible, the | ||
attorney shall discuss with the proposed ward: | ||
(1) the law and facts of the case; | ||
(2) the proposed ward's legal options regarding | ||
disposition of the case; and | ||
(3) the grounds on which guardianship is sought. | ||
(b) Before the hearing, the attorney ad litem shall review: | ||
(1) the application for guardianship; | ||
(2) certificates of current physical, medical, and | ||
intellectual examinations; and | ||
(3) all of the proposed ward's relevant medical, | ||
psychological, and intellectual testing records. (Tex. Prob. Code, | ||
Sec. 647.) | ||
. At the time the | ||
court appoints the attorney ad litem under Section 1054.001, the | ||
court shall appoint a language interpreter or sign interpreter if | ||
necessary to ensure effective communication between the proposed | ||
ward and the attorney. (Tex. Prob. Code, Sec. 646(d).) | ||
[Sections 1054.006-1054.050 reserved for expansion] | ||
SUBCHAPTER B. GUARDIANS AD LITEM | ||
GUARDIANSHIP PROCEEDING | ||
to represent the interests of an incapacitated person in a | ||
guardianship proceeding. (Tex. Prob. Code, Sec. 645(a).) | ||
CERTAIN OTHER SUITS | ||
may appoint as guardian ad litem under Section 1104.354(1) the | ||
person who has been appointed attorney ad litem under Section | ||
1054.001 or the person who is serving as an ad litem for the ward's | ||
benefit in any other proceeding. (Tex. Prob. Code, Sec. 645(e).) | ||
. Unless the | ||
court determines that the continued appointment of a guardian ad | ||
litem appointed in a proceeding for the appointment of a guardian is | ||
in the ward's best interests, the guardian ad litem's term of | ||
appointment expires, without a court order, on the date the court: | ||
(1) appoints a guardian; or | ||
(2) denies the application for appointment of a | ||
guardian. (Tex. Prob. Code, Sec. 645(f).) | ||
. (a) A guardian ad litem is an | ||
officer of the court. | ||
(b) A guardian ad litem shall protect the incapacitated | ||
person whose interests the guardian has been appointed to represent | ||
in a manner that will enable the court to determine the action that | ||
will be in that person's best interests. (Tex. Prob. Code, Sec. | ||
645(c).) | ||
. (a) A guardian | ||
ad litem is entitled to reasonable compensation for services | ||
provided in the amount set by the court, to be taxed as costs in the | ||
proceeding. | ||
(b) The fees and expenses of a guardian ad litem appointed | ||
under Section 1104.354(1) are costs of the litigation proceeding | ||
that made the appointment necessary. (Tex. Prob. Code, Secs. | ||
645(b), (d).) | ||
. (a) Subject to Subsection (b), a | ||
guardian ad litem appointed under this subchapter or Section | ||
1102.001 or 1202.054 to represent the interests of an incapacitated | ||
person in a guardianship proceeding involving the creation, | ||
modification, or termination of a guardianship is not liable for | ||
civil damages arising from a recommendation made or an opinion | ||
given in the capacity of guardian ad litem. | ||
(b) This section does not apply to a recommendation or | ||
opinion that is: | ||
(1) wilfully wrongful; | ||
(2) given: | ||
(A) with conscious indifference to or reckless | ||
disregard for the safety of another; | ||
(B) with malice; or | ||
(C) in bad faith; or | ||
(3) grossly negligent. (Tex. Prob. Code, Sec. 645A.) | ||
[Sections 1054.057-1054.100 reserved for expansion] | ||
SUBCHAPTER C. COURT VISITORS | ||
GUARDIANSHIPS | ||
created only because the appointment of a guardian for a person is | ||
necessary for the person to receive funds from a governmental | ||
source. (Tex. Prob. Code, Sec. 648(f).) | ||
. (a) | ||
Each statutory probate court shall operate a court visitor program | ||
to assess the conditions of wards and proposed wards. | ||
(b) A court, other than a statutory probate court, that has | ||
jurisdiction of a guardianship proceeding may operate a court | ||
visitor program in accordance with the population needs and | ||
financial abilities of the area the court serves. (Tex. Prob. Code, | ||
Sec. 648(a) (part).) | ||
. A | ||
court, at any time before a guardian is appointed for a proposed | ||
ward or during the pendency of a guardianship of the person or | ||
estate, may appoint a court visitor to evaluate the ward or proposed | ||
ward and provide a written report that substantially complies with | ||
Section 1054.104(b) on: | ||
(1) the request of any interested person, including | ||
the ward or proposed ward; or | ||
(2) the court's own motion. (Tex. Prob. Code, Sec. | ||
648(b).) | ||
. (a) A court visitor | ||
appointed under Section 1054.103 shall file the report on the | ||
evaluation of a ward or proposed ward not later than the 14th day | ||
after the date the court visitor conducts the evaluation. The court | ||
visitor shall swear under penalty of perjury that the report is | ||
accurate to the best of the court visitor's knowledge and belief. | ||
(b) A court visitor's report must include: | ||
(1) a description of the nature and degree of the | ||
ward's or proposed ward's capacity and incapacity, including a | ||
description of the ward's or proposed ward's medical history, if | ||
reasonably available and not waived by the court; | ||
(2) a medical prognosis and list of the ward's or | ||
proposed ward's treating physicians, when appropriate; | ||
(3) a description of the ward's or proposed ward's | ||
living conditions and circumstances; | ||
(4) a description of the ward's or proposed ward's | ||
social, intellectual, physical, and educational conditions; | ||
(5) a statement that the court visitor has personally | ||
visited or observed the ward or proposed ward; | ||
(6) a statement of the date of the guardian's most | ||
recent visit, if a guardian has been appointed; | ||
(7) a recommendation as to any modification needed in | ||
the guardianship or proposed guardianship, including removal or | ||
denial of the guardianship; and | ||
(8) any other information required by the court. | ||
(Tex. Prob. Code, Secs. 648(c), (d).) | ||
. (a) A court that operates a | ||
court visitor program shall use persons willing to serve as court | ||
visitors without compensation to the greatest extent possible. | ||
(b) A court visitor who has not expressed a willingness to | ||
serve without compensation is entitled to reasonable compensation | ||
for services provided in an amount set by the court, to be taxed as | ||
costs in the proceeding. (Tex. Prob. Code, Secs. 648(a) (part), | ||
(e).) | ||
[Sections 1054.106-1054.150 reserved for expansion] | ||
SUBCHAPTER D. COURT INVESTIGATORS | ||
. | ||
On the filing of an application for guardianship under Section | ||
1101.001, a court investigator shall investigate the circumstances | ||
alleged in the application to determine whether a less restrictive | ||
alternative to guardianship is appropriate. (Tex. Prob. Code, Sec. | ||
648A(a).) | ||
. A court investigator shall: | ||
(1) supervise a court visitor program established | ||
under Subchapter C and, in that capacity, serve as the chief court | ||
visitor; | ||
(2) investigate a complaint received from any person | ||
about a guardianship and report to the judge, if necessary; and | ||
(3) perform other duties as assigned by the judge or | ||
required by this title. (Tex. Prob. Code, Sec. 648A(b).) | ||
. (a) A court | ||
investigator shall file with the court a report containing the | ||
court investigator's findings and conclusions after conducting an | ||
investigation under Section 1054.151 or 1054.152. | ||
(b) In a contested case, the court investigator shall | ||
provide copies of the report of the court investigator's findings | ||
and conclusions to the attorneys for the parties before the earlier | ||
of: | ||
(1) the seventh day after the date the court | ||
investigator completes the report; or | ||
(2) the 10th day before the date the trial is scheduled | ||
to begin. | ||
(c) Disclosure to a jury of the contents of a court | ||
investigator's report is subject to the Texas Rules of Evidence. | ||
(Tex. Prob. Code, Sec. 648A(c).) | ||
. Nothing | ||
in this subchapter supersedes any duty or obligation of another to | ||
report or investigate abuse or neglect under any statute of this | ||
state. (Tex. Prob. Code, Sec. 648A(d).) | ||
[Sections 1054.155-1054.200 reserved for expansion] | ||
SUBCHAPTER E. QUALIFICATIONS TO SERVE AS COURT-APPOINTED ATTORNEY | ||
. (a) A | ||
court-appointed attorney in a guardianship proceeding, including | ||
an attorney ad litem, must be certified by the State Bar of Texas, | ||
or a person or other entity designated by the state bar, as having | ||
successfully completed a course of study in guardianship law and | ||
procedure sponsored by the state bar or the state bar's designee. | ||
(b) The State Bar of Texas shall require three hours of | ||
credit for certification under this subchapter. (Tex. Prob. Code, | ||
Secs. 646(b), 647A(a), (b).) | ||
. (a) Except as | ||
provided by Subsection (b), a certificate issued under this | ||
subchapter expires on the second anniversary of the date the | ||
certificate is issued. | ||
(b) A new certificate obtained by a person to whom a | ||
certificate under this subchapter was previously issued expires on | ||
the fourth anniversary of the date the new certificate is issued if | ||
the person has been certified each of the four years immediately | ||
preceding the date the new certificate is issued. (Tex. Prob. Code, | ||
Secs. 647A(c), (e).) | ||
CERTIFICATE | ||
subchapter has expired must obtain a new certificate to be eligible | ||
for appointment by a court to represent a person at a guardianship | ||
proceeding, including as an attorney ad litem. (Tex. Prob. Code, Secs. 646(c), 647A(d).) | ||
CHAPTER 1055. TRIAL AND HEARING MATTERS | ||
SUBCHAPTER A. STANDING AND PLEADINGS | ||
Sec. | 1055.001. STANDING TO COMMENCE OR CONTEST | |
PROCEEDING | ||
Sec. 1055.002. DEFECT IN PLEADING | ||
[Sections 1055.003-1055.050 reserved for expansion] | ||
SUBCHAPTER B. | TRIAL AND HEARING | |
Sec. 1055.051. HEARING BY SUBMISSION | ||
Sec. 1055.052. TRIAL BY JURY | ||
[Sections 1055.053-1055.100 reserved for expansion] | ||
SUBCHAPTER C. EVIDENCE | ||
Sec. | 1055.101. APPLICABILITY OF CERTAIN RULES RELATING | |
TO WITNESSES AND EVIDENCE | ||
Sec. 1055.102. USE OF CERTAIN RECORDS AS EVIDENCE | ||
CHAPTER 1055. TRIAL AND HEARING MATTERS | ||
SUBCHAPTER A. STANDING AND PLEADINGS | ||
. | ||
(a) Except as provided by Subsection (b), any person has the right | ||
to: | ||
(1) commence a guardianship proceeding, including a | ||
proceeding for complete restoration of a ward's capacity or | ||
modification of a ward's guardianship; or | ||
(2) appear and contest a guardianship proceeding or | ||
the appointment of a particular person as guardian. | ||
(b) A person who has an interest that is adverse to a | ||
proposed ward or incapacitated person may not: | ||
(1) file an application to create a guardianship for | ||
the proposed ward or incapacitated person; | ||
(2) contest the creation of a guardianship for the | ||
proposed ward or incapacitated person; | ||
(3) contest the appointment of a person as a guardian | ||
of the proposed ward or incapacitated person; or | ||
(4) contest an application for complete restoration of | ||
a ward's capacity or modification of a ward's guardianship. | ||
(c) The court shall determine by motion in limine the | ||
standing of a person who has an interest that is adverse to a | ||
proposed ward or incapacitated person. (Tex. Prob. Code, Sec. | ||
642.) | ||
. A court may not | ||
invalidate a pleading in a guardianship matter, or an order based on | ||
the pleading, on the basis of a defect of form or substance in the | ||
pleading unless a timely objection has been made against the defect | ||
and the defect has been called to the attention of the court in | ||
which the proceeding was or is pending. (Tex. Prob. Code, Sec. | ||
641.) | ||
[Sections 1055.003-1055.050 reserved for expansion] | ||
SUBCHAPTER B. TRIAL AND HEARING | ||
. (a) A court may | ||
consider by submission a motion or application filed under this | ||
title unless the proceeding is: | ||
(1) contested; or | ||
(2) an application for the appointment of a guardian. | ||
(b) The party seeking relief under a motion or application | ||
being considered by the court on submission has the burden of proof | ||
at the hearing. | ||
(c) The court may consider a person's failure to file a | ||
response to a motion or application that may be considered on | ||
submission as a representation that the person does not oppose the | ||
motion or application. | ||
(d) A person's request for oral argument is not a response | ||
to a motion or application under this section. | ||
(e) The court, on the court's own motion, may order oral | ||
argument on a motion or application that may be considered by | ||
submission. (Tex. Prob. Code, Sec. 644.) | ||
. A party in a contested | ||
guardianship proceeding is entitled to a jury trial on request. | ||
(Tex. Prob. Code, Sec. 643.) | ||
[Sections 1055.053-1055.100 reserved for expansion] | ||
SUBCHAPTER C. EVIDENCE | ||
WITNESSES AND EVIDENCE | ||
evidence that apply in the district court apply in a guardianship | ||
proceeding to the extent practicable. (Tex. Prob. Code, Sec. 649 | ||
(part).) | ||
. The | ||
following are admissible as evidence in any court of this state: | ||
(1) record books described by Sections 1052.001, | ||
1052.002, and 1052.003 and individual case files described by | ||
Section 1052.052, including records maintained in a manner allowed | ||
under Section 1052.004; and | ||
(2) certified copies or reproductions of the records. (Tex. Prob. Code, Sec. 628.) | ||
CHAPTER 1056. EXECUTION, ATTACHMENT, AND BILL OF REVIEW | ||
SUBCHAPTER A. EXECUTION | ||
Sec. 1056.001. EXECUTIONS IN GUARDIANSHIP MATTERS | ||
[Sections 1056.002-1056.050 reserved for expansion] | ||
SUBCHAPTER B. ATTACHMENT OF ESTATE PROPERTY | ||
Sec. | 1056.051. ORDER FOR ISSUANCE OF WRIT OF | |
ATTACHMENT | ||
Sec. 1056.052. BOND | ||
[Sections 1056.053-1056.100 reserved for expansion] | ||
SUBCHAPTER C. BILL OF REVIEW | ||
Sec. | 1056.101. REVISION AND CORRECTION OF ORDER OR | |
JUDGMENT IN GUARDIANSHIP PROCEEDING | ||
Sec. 1056.102. INJUNCTION | ||
CHAPTER 1056. EXECUTION, ATTACHMENT, AND BILL OF REVIEW | ||
SUBCHAPTER A. EXECUTION | ||
. (a) An | ||
execution in a guardianship matter must be: | ||
(1) directed "to any sheriff or any constable within | ||
the State of Texas"; | ||
(2) attested and signed by the clerk officially under | ||
court seal; and | ||
(3) made returnable in 60 days. | ||
(b) A proceeding under an execution in a guardianship matter | ||
is governed, to the extent applicable, by the laws regulating a | ||
proceeding under an execution issued by a district court. | ||
(c) Notwithstanding Subsection (a), an execution directed | ||
to the sheriff or a constable of a specific county in this state may | ||
not be held defective if properly executed within that county by the | ||
sheriff or constable to whom the execution is directed. (Tex. Prob. | ||
Code, Sec. 653.) | ||
[Sections 1056.002-1056.050 reserved for expansion] | ||
SUBCHAPTER B. ATTACHMENT OF ESTATE PROPERTY | ||
. | ||
(a) If a person interested in the estate of an incapacitated person | ||
files with the judge a written complaint made under oath alleging | ||
that the guardian is about to remove the estate or a part of the | ||
estate outside of the state, the judge may order a writ of | ||
attachment to issue, directed "to any sheriff or any constable | ||
within the State of Texas." The writ must order the sheriff or | ||
constable to: | ||
(1) seize the estate or a part of the estate; and | ||
(2) hold that property subject to further court order. | ||
(b) Notwithstanding Subsection (a), a writ of attachment | ||
directed to the sheriff or constable of a specific county in this | ||
state is not defective if the writ was properly executed within that | ||
county by the sheriff or constable to whom the writ is directed. | ||
(Tex. Prob. Code, Sec. 654 (part).) | ||
. Before a judge may issue a writ of | ||
attachment ordered under Section 1056.051, the complainant must | ||
execute a bond that is: | ||
(1) payable to the guardian of the estate; | ||
(2) in an amount set by the judge; and | ||
(3) conditioned on the payment of all damages and | ||
costs that are recovered for a wrongful suit out of the writ. (Tex. | ||
Prob. Code, Sec. 654 (part).) | ||
[Sections 1056.053-1056.100 reserved for expansion] | ||
SUBCHAPTER C. BILL OF REVIEW | ||
IN GUARDIANSHIP PROCEEDING | ||
ward, may, by a bill of review filed in the court in which the | ||
guardianship proceeding was held, have an order or judgment | ||
rendered by the court revised and corrected on a showing of error in | ||
the order or judgment. | ||
(b) Except as provided by Subsection (c), a bill of review | ||
to revise and correct an order or judgment may not be filed more | ||
than two years after the date of the order or judgment. | ||
(c) A bill of review to revise and correct an order or | ||
judgment filed by a person whose disability has been removed must be | ||
filed not later than the second anniversary of the date the person's | ||
disability was removed. (Tex. Prob. Code, Sec. 657 (part).) | ||
. A process or action under a | ||
court order or judgment subject to a bill of review filed under | ||
Section 1056.101 may be stayed only by writ of injunction. (Tex. Prob. Code, Sec. 657 (part).) | ||
CHAPTER 1057. CHANGE AND RESIGNATION OF RESIDENT AGENT OF | ||
GUARDIAN FOR SERVICE OF PROCESS | ||
Sec. 1057.001. CHANGE OF RESIDENT AGENT | ||
Sec. 1057.002. RESIGNATION OF RESIDENT AGENT | ||
CHAPTER 1057. CHANGE AND RESIGNATION OF RESIDENT AGENT OF | ||
GUARDIAN FOR SERVICE OF PROCESS | ||
. (a) A guardian | ||
may change the guardian's resident agent to accept service of | ||
process in a guardianship proceeding or other matter relating to | ||
the guardianship by filing with the court in which the guardianship | ||
proceeding is pending a statement titled "Designation of Successor | ||
Resident Agent" that states the names and addresses of: | ||
(1) the guardian; | ||
(2) the resident agent; and | ||
(3) the successor resident agent. | ||
(b) The designation of a successor resident agent takes | ||
effect on the date the statement is filed with the court. (Tex. | ||
Prob. Code, Sec. 760A.) | ||
. (a) A | ||
resident agent of a guardian may resign as resident agent by giving | ||
notice to the guardian and filing with the court in which the | ||
guardianship proceeding is pending a statement titled "Resignation | ||
of Resident Agent" that states: | ||
(1) the name of the guardian; | ||
(2) the guardian's address most recently known by the | ||
resident agent; | ||
(3) that notice of the resignation has been given to | ||
the guardian and the date that notice was given; and | ||
(4) that the guardian does not have a resident agent. | ||
(b) The resident agent shall send, by certified mail, return | ||
receipt requested, a copy of a resignation statement filed under | ||
Subsection (a) to: | ||
(1) the guardian at the address most recently known by | ||
the resident agent; and | ||
(2) each party in the case or the party's attorney or | ||
other designated representative of record. | ||
(c) The resignation of the resident agent takes effect on | ||
the date the court enters an order accepting the resignation. A | ||
court may not enter an order accepting the resignation unless the | ||
resident agent complies with this section. (Tex. Prob. Code, Sec. | ||
760B.) | ||
[Chapters 1058-1100 reserved for expansion] | ||
CHAPTER 1101. GENERAL PROCEDURE TO APPOINT GUARDIAN | ||
SUBCHAPTER A. INITIATION OF PROCEEDING FOR APPOINTMENT OF GUARDIAN | ||
Sec. | 1101.001. APPLICATION FOR APPOINTMENT OF | |
GUARDIAN; CONTENTS | ||
[Sections 1101.002-1101.050 reserved for expansion] | ||
SUBCHAPTER B. | HEARING; JURY TRIAL | |
Sec. 1101.051. HEARING | ||
Sec. 1101.052. JURY TRIAL | ||
Sec. | 1101.053. PROVISION OF RECORDS REQUIRED; USE OF | |
RECORDS | ||
[Sections 1101.054-1101.100 reserved for expansion] | ||
SUBCHAPTER C. DETERMINATION OF NECESSITY OF GUARDIANSHIP; FINDINGS | AND PROOF | |
AND PROOF | ||
Sec. 1101.101. FINDINGS AND PROOF REQUIRED | ||
Sec. | 1101.102. DETERMINATION OF INCAPACITY OF CERTAIN | |
ADULTS: RECURRING ACTS OR OCCURRENCES | ||
Sec. | 1101.103. DETERMINATION OF INCAPACITY OF CERTAIN | |
ADULTS: PHYSICIAN EXAMINATION | ||
Sec. | 1101.104. EXAMINATIONS AND DOCUMENTATION | |
REGARDING MENTAL RETARDATION | ||
Sec. | 1101.105. PROHIBITION AGAINST CONSIDERATION OF | |
GUARDIAN FOR ADULTS | ||
Sec. | 1101.106. EVIDENCE OF NECESSITY OF GUARDIANSHIP | |
TO RECEIVE GOVERNMENTAL FUNDS | ||
[Sections 1101.107-1101.150 reserved for expansion] | ||
SUBCHAPTER D. COURT ACTION | ||
Sec. | 1101.151. ORDER APPOINTING GUARDIAN WITH FULL | |
AUTHORITY | ||
Sec. | 1101.152. ORDER APPOINTING GUARDIAN WITH LIMITED | |
AUTHORITY | ||
Sec. | 1101.153. GENERAL CONTENTS OF ORDER APPOINTING | |
GUARDIAN | ||
Sec. | 1101.154. APPOINTMENT OF GUARDIAN OF ESTATE FOR | |
CERTAIN MINORS PROHIBITED | ||
Sec. 1101.155. DISMISSAL OF APPLICATION | ||
CHAPTER 1101. GENERAL PROCEDURE TO APPOINT GUARDIAN | ||
SUBCHAPTER A. INITIATION OF PROCEEDING FOR APPOINTMENT OF GUARDIAN | ||
GUARDIAN; CONTENTS | ||
the appointment of a guardian by filing a written application in a | ||
court having jurisdiction and venue. | ||
(b) The application must be sworn to by the applicant and | ||
state: | ||
(1) the proposed ward's name, sex, date of birth, and | ||
address; | ||
(2) the name, relationship, and address of the person | ||
the applicant seeks to have appointed as guardian; | ||
(3) whether guardianship of the person or estate, or | ||
both, is sought; | ||
(4) the nature and degree of the alleged incapacity, | ||
the specific areas of protection and assistance requested, and the | ||
limitation or termination of rights requested to be included in the | ||
court's order of appointment, including a termination of: | ||
(A) the right of a proposed ward who is 18 years | ||
of age or older to vote in a public election; and | ||
(B) the proposed ward's eligibility to hold or | ||
obtain a license to operate a motor vehicle under Chapter 521, | ||
Transportation Code; | ||
(5) the facts requiring the appointment of a guardian; | ||
(6) the interest of the applicant in the appointment | ||
of a guardian; | ||
(7) the nature and description of any kind of | ||
guardianship existing for the proposed ward in any other state; | ||
(8) the name and address of any person or institution | ||
having the care and custody of the proposed ward; | ||
(9) the approximate value and description of the | ||
proposed ward's property, including any compensation, pension, | ||
insurance, or allowance to which the proposed ward may be entitled; | ||
(10) the name and address of any person whom the | ||
applicant knows to hold a power of attorney signed by the proposed | ||
ward and a description of the type of power of attorney; | ||
(11) for a proposed ward who is a minor, the following | ||
information if known by the applicant: | ||
(A) the name of each of the proposed ward's | ||
parents and either the parent's address or that the parent is | ||
deceased; | ||
(B) the name and age of each of the proposed | ||
ward's siblings, if any, and either the sibling's address or that | ||
the sibling is deceased; and | ||
(C) if each of the proposed ward's parents and | ||
siblings are deceased, the names and addresses of the proposed | ||
ward's next of kin who are adults; | ||
(12) for a proposed ward who is a minor, whether the | ||
minor was the subject of a legal or conservatorship proceeding in | ||
the preceding two years and, if so: | ||
(A) the court involved; | ||
(B) the nature of the proceeding; and | ||
(C) any final disposition of the proceeding; | ||
(13) for a proposed ward who is an adult, the following | ||
information if known by the applicant: | ||
(A) the name of the proposed ward's spouse, if | ||
any, and either the spouse's address or that the spouse is deceased; | ||
(B) the name of each of the proposed ward's | ||
parents and either the parent's address or that the parent is | ||
deceased; | ||
(C) the name and age of each of the proposed | ||
ward's siblings, if any, and either the sibling's address or that | ||
the sibling is deceased; | ||
(D) the name and age of each of the proposed | ||
ward's children, if any, and either the child's address or that the | ||
child is deceased; and | ||
(E) if there is no living spouse, parent, adult | ||
sibling, or adult child of the proposed ward, the names and | ||
addresses of the proposed ward's next of kin who are adults; | ||
(14) facts showing that the court has venue of the | ||
proceeding; and | ||
(15) if applicable, that the person whom the applicant | ||
seeks to have appointed as a guardian is a private professional | ||
guardian who is certified under Subchapter C, Chapter 111, | ||
Government Code, and has complied with the requirements of | ||
Subchapter G, Chapter 1104. (Tex. Prob. Code, Sec. 682.) | ||
[Sections 1101.002-1101.050 reserved for expansion] | ||
SUBCHAPTER B. HEARING; JURY TRIAL | ||
. (a) At a hearing for the | ||
appointment of a guardian, the court shall: | ||
(1) inquire into the ability of any allegedly | ||
incapacitated adult to: | ||
(A) feed, clothe, and shelter himself or herself; | ||
(B) care for his or her own physical health; and | ||
(C) manage his or her property or financial | ||
affairs; | ||
(2) ascertain the age of any proposed ward who is a | ||
minor; | ||
(3) inquire into the governmental reports for any | ||
person who must have a guardian appointed to receive funds due the | ||
person from any governmental source; and | ||
(4) inquire into the qualifications, abilities, and | ||
capabilities of the person seeking to be appointed guardian. | ||
(b) A proposed ward must be present at the hearing unless | ||
the court, on the record or in the order, determines that a personal | ||
appearance is not necessary. | ||
(c) The court may close the hearing at the request of the | ||
proposed ward or the proposed ward's counsel. (Tex. Prob. Code, | ||
Secs. 685(a), (c).) | ||
. A proposed ward is entitled to a | ||
jury trial on request. (Tex. Prob. Code, Sec. 685(b).) | ||
RECORDS | ||
guardian, current and relevant medical, psychological, and | ||
intellectual testing records of the proposed ward must be provided | ||
to the attorney ad litem appointed to represent the proposed ward | ||
unless: | ||
(1) the proposed ward is a minor or a person who must | ||
have a guardian appointed to receive funds due the person from any | ||
governmental source; or | ||
(2) the court makes a finding on the record that: | ||
(A) current or relevant records do not exist; and | ||
(B) examining the proposed ward for the purpose | ||
of creating the records is impractical. | ||
(b) Current medical, psychological, and intellectual | ||
testing records are a sufficient basis for a determination of | ||
guardianship. | ||
(c) The findings and recommendations contained in the | ||
medical, psychological, and intellectual testing records are not | ||
binding on the court. (Tex. Prob. Code, Sec. 686.) | ||
[Sections 1101.054-1101.100 reserved for expansion] | ||
SUBCHAPTER C. DETERMINATION OF NECESSITY OF GUARDIANSHIP; FINDINGS | ||
AND PROOF | ||
. (a) Before | ||
appointing a guardian for a proposed ward, the court must: | ||
(1) find by clear and convincing evidence that: | ||
(A) the proposed ward is an incapacitated person; | ||
(B) it is in the proposed ward's best interest to | ||
have the court appoint a person as the proposed ward's guardian; and | ||
(C) the proposed ward's rights or property will | ||
be protected by the appointment of a guardian; and | ||
(2) find by a preponderance of the evidence that: | ||
(A) the court has venue of the case; | ||
(B) the person to be appointed guardian is | ||
eligible to act as guardian and is entitled to appointment, or, if | ||
no eligible person entitled to appointment applies, the person | ||
appointed is a proper person to act as guardian; | ||
(C) if a guardian is appointed for a minor, the | ||
guardianship is not created for the primary purpose of enabling the | ||
minor to establish residency for enrollment in a school or school | ||
district for which the minor is not otherwise eligible for | ||
enrollment; and | ||
(D) the proposed ward: | ||
(i) is totally without capacity as provided | ||
by this title to care for himself or herself and to manage his or her | ||
property; or | ||
(ii) lacks the capacity to do some, but not | ||
all, of the tasks necessary to care for himself or herself or to | ||
manage his or her property. | ||
(b) The court may not grant an application to create a | ||
guardianship unless the applicant proves each element required by | ||
this title. (Tex. Prob. Code, Secs. 684(a), (b), (c) (part).) | ||
ADULTS: RECURRING ACTS OR OCCURRENCES | ||
incapacity of an adult proposed ward, other than a person who must | ||
have a guardian appointed to receive funds due the person from any | ||
governmental source, must be evidenced by recurring acts or | ||
occurrences in the preceding six months and not by isolated | ||
instances of negligence or bad judgment. (Tex. Prob. Code, Sec. | ||
684(c) (part).) | ||
ADULTS: PHYSICIAN EXAMINATION | ||
1101.104, the court may not grant an application to create a | ||
guardianship for an incapacitated person, other than a minor or | ||
person for whom it is necessary to have a guardian appointed only to | ||
receive funds from a governmental source, unless the applicant | ||
presents to the court a written letter or certificate from a | ||
physician licensed in this state that is: | ||
(1) dated not earlier than the 120th day before the | ||
date the application is filed; and | ||
(2) based on an examination the physician performed | ||
not earlier than the 120th day before the date the application is | ||
filed. | ||
(b) The letter or certificate must: | ||
(1) describe the nature, degree, and severity of the | ||
proposed ward's incapacity, including any functional deficits | ||
regarding the proposed ward's ability to: | ||
(A) handle business and managerial matters; | ||
(B) manage financial matters; | ||
(C) operate a motor vehicle; | ||
(D) make personal decisions regarding residence, | ||
voting, and marriage; and | ||
(E) consent to medical, dental, psychological, | ||
or psychiatric treatment; | ||
(2) in providing a description under Subdivision (1) | ||
regarding the proposed ward's ability to operate a motor vehicle | ||
and make personal decisions regarding voting, state whether in the | ||
physician's opinion the proposed ward: | ||
(A) has the mental capacity to vote in a public | ||
election; and | ||
(B) has the ability to safely operate a motor | ||
vehicle; | ||
(3) provide an evaluation of the proposed ward's | ||
physical condition and mental function and summarize the proposed | ||
ward's medical history if reasonably available; | ||
(4) state how or in what manner the proposed ward's | ||
ability to make or communicate responsible decisions concerning | ||
himself or herself is affected by the proposed ward's physical or | ||
mental health, including the proposed ward's ability to: | ||
(A) understand or communicate; | ||
(B) recognize familiar objects and individuals; | ||
(C) perform simple calculations; | ||
(D) reason logically; and | ||
(E) administer to daily life activities; | ||
(5) state whether any current medication affects the | ||
proposed ward's demeanor or the proposed ward's ability to | ||
participate fully in a court proceeding; | ||
(6) describe the precise physical and mental | ||
conditions underlying a diagnosis of a mental disability, and state | ||
whether the proposed ward would benefit from supports and services | ||
that would allow the individual to live in the least restrictive | ||
setting; and | ||
(7) include any other information required by the | ||
court. | ||
(c) If the court determines it is necessary, the court may | ||
appoint the necessary physicians to examine the proposed ward. The | ||
court must make its determination with respect to the necessity for | ||
a physician's examination of the proposed ward at a hearing held for | ||
that purpose. Not later than the fourth day before the date of the | ||
hearing, the applicant shall give to the proposed ward and the | ||
proposed ward's attorney ad litem written notice specifying the | ||
purpose and the date and time of the hearing. | ||
(d) A physician who examines the proposed ward, other than a | ||
physician or psychologist who examines the proposed ward under | ||
Section 1101.104(2), shall make available for inspection by the | ||
attorney ad litem appointed to represent the proposed ward a | ||
written letter or certificate from the physician that complies with | ||
the requirements of Subsections (a) and (b). (Tex. Prob. Code, | ||
Secs. 687(a), (b).) | ||
MENTAL RETARDATION | ||
proposed ward's alleged incapacity, the court may not grant an | ||
application to create a guardianship for the proposed ward unless | ||
the applicant presents to the court: | ||
(1) a written letter or certificate that: | ||
(A) complies with Sections 1101.103(a) and (b); | ||
and | ||
(B) states that the physician has made a | ||
determination of mental retardation in accordance with Section | ||
593.005, Health and Safety Code; or | ||
(2) both: | ||
(A) written documentation showing that, not | ||
earlier than 24 months before the hearing date, the proposed ward | ||
has been examined by a physician or psychologist licensed in this | ||
state or certified by the Department of Aging and Disability | ||
Services to perform the examination, in accordance with rules of | ||
the executive commissioner of the Health and Human Services | ||
Commission governing examinations of that kind; and | ||
(B) the physician's or psychologist's written | ||
findings and recommendations, including a statement as to whether | ||
the physician or psychologist has made a determination of mental | ||
retardation in accordance with Section 593.005, Health and Safety | ||
Code. (Tex. Prob. Code, Sec. 687(c).) | ||
SOLE FACTOR IN APPOINTMENT OF GUARDIAN FOR ADULTS | ||
whether to appoint a guardian for an incapacitated person who is not | ||
a minor, the court may not use age as the sole factor. (Tex. Prob. | ||
Code, Sec. 602 (part).) | ||
RECEIVE GOVERNMENTAL FUNDS | ||
a representative of a bureau, department, or agency of the | ||
government, to the effect that the appointment of a guardian is a | ||
condition precedent to the payment of any funds due the proposed | ||
ward from that governmental entity, is prima facie evidence of the | ||
necessity for the appointment of a guardian. (Tex. Prob. Code, Sec. | ||
684(e).) | ||
[Sections 1101.107-1101.150 reserved for expansion] | ||
SUBCHAPTER D. COURT ACTION | ||
AUTHORITY | ||
without capacity to care for himself or herself, manage his or her | ||
property, operate a motor vehicle, and vote in a public election, | ||
the court may appoint a guardian of the proposed ward's person or | ||
estate, or both, with full authority over the incapacitated person | ||
except as provided by law. | ||
(b) An order appointing a guardian under this section must | ||
contain findings of fact and specify: | ||
(1) the information required by Section 1101.153(a); | ||
(2) that the guardian has full authority over the | ||
incapacitated person; | ||
(3) if necessary, the amount of funds from the corpus | ||
of the person's estate the court will allow the guardian to spend | ||
for the education and maintenance of the person under Subchapter A, | ||
Chapter 1156; | ||
(4) whether the person is totally incapacitated | ||
because of a mental condition; and | ||
(5) that the person does not have the capacity to | ||
operate a motor vehicle and to vote in a public election. (Tex. | ||
Prob. Code, Sec. 693(a).) | ||
AUTHORITY | ||
capacity to do some, but not all, of the tasks necessary to care for | ||
himself or herself or to manage his or her property, the court may | ||
appoint a guardian with limited powers and permit the proposed ward | ||
to care for himself or herself or to manage his or her property | ||
commensurate with the proposed ward's ability. | ||
(b) An order appointing a guardian under this section must | ||
contain findings of fact and specify: | ||
(1) the information required by Section 1101.153(a); | ||
(2) the specific powers, limitations, or duties of the | ||
guardian with respect to the person's care or the management of the | ||
person's property by the guardian; | ||
(3) if necessary, the amount of funds from the corpus | ||
of the person's estate the court will allow the guardian to spend | ||
for the education and maintenance of the person under Subchapter A, | ||
Chapter 1156; and | ||
(4) whether the person is incapacitated because of a | ||
mental condition and, if so, whether the person retains the right to | ||
vote in a public election or maintains eligibility to hold or obtain | ||
a license to operate a motor vehicle under Chapter 521, | ||
Transportation Code. (Tex. Prob. Code, Sec. 693(b).) | ||
GUARDIAN | ||
(1) the name of the person appointed; | ||
(2) the name of the ward; | ||
(3) whether the guardian is of the person or estate of | ||
the ward, or both; | ||
(4) the amount of any bond required; | ||
(5) if it is a guardianship of the estate of the ward | ||
and the court considers an appraisal to be necessary, one, two, or | ||
three disinterested persons to appraise the estate and to return | ||
the appraisement to the court; and | ||
(6) that the clerk will issue letters of guardianship | ||
to the person appointed when the person has qualified according to | ||
law. | ||
(b) An order appointing a guardian may not duplicate or | ||
conflict with the powers and duties of any other guardian. | ||
(c) An order appointing a guardian or a successor guardian | ||
may specify as authorized by Section 1202.001(c) a period during | ||
which a petition for adjudication that the ward no longer requires | ||
the guardianship may not be filed without special leave. (Tex. | ||
Prob. Code, Secs. 693(c), (d), (e).) | ||
CERTAIN MINORS PROHIBITED | ||
the estate of a minor when a payment of claims is made under Chapter | ||
1355. (Tex. Prob. Code, Sec. 684(d).) | ||
. If it is found | ||
that a proposed ward who is an adult possesses the capacity to care | ||
for himself or herself and manage his or her property as would a | ||
reasonably prudent person, the court shall dismiss an application for guardianship. (Tex. Prob. Code, Sec. 692.) | ||
CHAPTER 1102. COURT-INITIATED PROCEDURE TO APPOINT GUARDIAN | ||
Sec. 1102.001. COURT-INITIATED INVESTIGATION | ||
Sec. | 1102.002. ESTABLISHMENT OF PROBABLE CAUSE FOR | |
INVESTIGATION | ||
Sec. 1102.003. INFORMATION LETTER | ||
Sec. | 1102.004. APPLICATION FOR GUARDIANSHIP FOLLOWING | |
INVESTIGATION | ||
Sec. 1102.005. COMPENSATION OF GUARDIAN AD LITEM | ||
CHAPTER 1102. COURT-INITIATED PROCEDURE TO APPOINT GUARDIAN | ||
. If a court | ||
has probable cause to believe that a person domiciled or found in | ||
the county in which the court is located is an incapacitated person, | ||
and the person does not have a guardian in this state, the court | ||
shall appoint a guardian ad litem or court investigator to | ||
investigate the person's conditions and circumstances to determine | ||
whether: | ||
(1) the person is an incapacitated person; and | ||
(2) a guardianship is necessary. (Tex. Prob. Code, | ||
Sec. 683(a) (part).) | ||
INVESTIGATION | ||
the court may require: | ||
(1) an information letter about the person believed to | ||
be incapacitated that is submitted by an interested person and | ||
satisfies the requirements of Section 1102.003; or | ||
(2) a written letter or certificate from a physician | ||
who has examined the person believed to be incapacitated that | ||
satisfies the requirements of Section 1101.103, except that the | ||
letter must be: | ||
(A) dated not earlier than the 120th day before | ||
the date of the appointment of a guardian ad litem or court | ||
investigator under Section 1102.001; and | ||
(B) based on an examination the physician | ||
performed not earlier than the 120th day before that date. (Tex. | ||
Prob. Code, Sec. 683(b).) | ||
. An information letter | ||
under Section 1102.002(1) about a person believed to be | ||
incapacitated may: | ||
(1) include the person's name, address, telephone | ||
number, county of residence, and date of birth; | ||
(2) state whether the person's residence is a private | ||
residence, health care facility, or other type of residence; | ||
(3) describe the relationship between the person and | ||
the interested person submitting the letter; | ||
(4) contain the names and telephone numbers of any | ||
known friends and relatives of the person; | ||
(5) state whether a guardian of the person or estate | ||
has been appointed in this state for the person; | ||
(6) state whether the person has executed a power of | ||
attorney and, if so, the designee's name, address, and telephone | ||
number; | ||
(7) describe any property of the person, including the | ||
estimated value of that property; | ||
(8) list the amount and source of any monthly income of | ||
the person; | ||
(9) describe the nature and degree of the person's | ||
alleged incapacity; and | ||
(10) state whether the person is in imminent danger of | ||
serious impairment to the person's physical health, safety, or | ||
estate. (Tex. Prob. Code, Sec. 683A.) | ||
INVESTIGATION | ||
after an investigation as prescribed by Section 1102.001, believes | ||
that the person is an incapacitated person and that a guardianship | ||
is necessary shall file an application for the appointment of a | ||
guardian of the person or estate, or both, for the person. (Tex. | ||
Prob. Code, Sec. 683(a) (part).) | ||
. (a) A | ||
court that appoints a guardian ad litem under Section 1102.001 may | ||
authorize compensation of the guardian ad litem from available | ||
funds of the proposed ward's estate, regardless of whether a | ||
guardianship is created for the proposed ward. | ||
(b) After examining the ward's or proposed ward's assets and | ||
determining that the ward or proposed ward is unable to pay for | ||
services provided by the guardian ad litem, the court may authorize | ||
compensation from the county treasury. (Tex. Prob. Code, Sec. 683(c).) | ||
REQUIRING GUARDIANSHIPS AS ADULTS | ||
CHAPTER 1103. PROCEDURE TO APPOINT GUARDIAN FOR CERTAIN MINORS | REQUIRING GUARDIANSHIPS AS ADULTS | |
REQUIRING GUARDIANSHIPS AS ADULTS | ||
Sec. 1103.001. APPLICATION FOR APPOINTMENT OF GUARDIAN | ||
Sec. | 1103.002. APPOINTMENT OF CONSERVATOR AS GUARDIAN | |
WITHOUT HEARING | ||
Sec. 1103.003. EFFECTIVE DATE OF GUARDIANSHIP | ||
Sec. | 1103.004. SETTLEMENT AND CLOSING OF PRIOR | |
GUARDIANSHIP | ||
CHAPTER 1103. PROCEDURE TO APPOINT GUARDIAN FOR CERTAIN MINORS | ||
REQUIRING GUARDIANSHIPS AS ADULTS | ||
. | ||
Not earlier than the 180th day before the proposed ward's 18th | ||
birthday, a person may file an application under Section 1101.001 | ||
for the appointment of a guardian of the person or estate, or both, | ||
of a proposed ward who: | ||
(1) is a minor; and | ||
(2) because of incapacity will require a guardianship | ||
after the proposed ward is no longer a minor. (Tex. Prob. Code, Sec. | ||
682A(a) (part).) | ||
WITHOUT HEARING | ||
applicant who files an application under Section 1101.001 or | ||
1103.001 is a person who was appointed conservator of a disabled | ||
child for whom a court obtains jurisdiction under Section 606(k), | ||
the applicant may present to the court a written letter or | ||
certificate that meets the requirements of Sections 1101.103(a) and | ||
(b). | ||
(b) If, on receipt of the letter or certificate described by | ||
Subsection (a), the court is able to make the findings required by | ||
Section 1101.101, the court, notwithstanding Subchapter C, Chapter | ||
1104, shall: | ||
(1) appoint the conservator as guardian without | ||
conducting a hearing; and | ||
(2) to the extent possible preserve the terms of | ||
possession and access to the ward that applied before the court | ||
obtained jurisdiction under Section 606(k). (Tex. Prob. Code, Secs. | ||
682A(a-1), (a-2).) | ||
. 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 as required under Section 1105.051 or give a bond | ||
as required under Section 1105.101 until the proposed ward's 18th | ||
birthday. (Tex. Prob. Code, Sec. 682A(a) (part).) | ||
GUARDIANSHIP | ||
guardianship of the person of a minor who is the subject of an | ||
application for the appointment of a guardian of the person filed | ||
under Section 1103.001 is settled and closed when: | ||
(1) the court, after a hearing on the application, | ||
determines that the appointment of a guardian of the person for the | ||
proposed ward is not necessary; or | ||
(2) the guardian appointed by the court, after a | ||
hearing on the application, has qualified under Section 1105.002. (Tex. Prob. Code, Sec. 682A(b).) | ||
CHAPTER 1104. SELECTION OF AND ELIGIBILITY TO SERVE AS GUARDIAN | ||
SUBCHAPTER A. GENERAL PROVISIONS RELATING TO APPOINTMENT OF | GUARDIAN | |
GUARDIAN | ||
Sec. 1104.001. GUARDIAN OF THE PERSON OR ESTATE | ||
Sec. 1104.002. PREFERENCE OF INCAPACITATED PERSON | ||
[Sections 1104.003-1104.050 reserved for expansion] | ||
SUBCHAPTER B. SELECTION OF GUARDIAN FOR MINOR | ||
Sec. 1104.051. GUARDIAN OF MINOR CHILDREN | ||
Sec. 1104.052. GUARDIAN FOR MINOR ORPHAN | ||
Sec. | 1104.053. GUARDIAN DESIGNATED BY WILL OR WRITTEN | |
DECLARATION | ||
Sec. 1104.054. SELECTION OF GUARDIAN BY MINOR | ||
[Sections 1104.055-1104.100 reserved for expansion] | ||
SUBCHAPTER C. SELECTION OF GUARDIAN FOR INCAPACITATED PERSON OTHER | THAN MINOR | |
THAN MINOR | ||
Sec. | 1104.101. APPOINTMENT ACCORDING TO CIRCUMSTANCES | |
AND BEST INTERESTS | ||
Sec. 1104.102. APPOINTMENT PREFERENCES | ||
Sec. | 1104.103. DESIGNATION OF GUARDIAN BY WILL OR | |
WRITTEN DECLARATION | ||
[Sections 1104.104-1104.150 reserved for expansion] | ||
SUBCHAPTER D. WRITTEN DECLARATION BY CERTAIN PARENTS TO APPOINT | GUARDIAN FOR THEIR CHILDREN | |
GUARDIAN FOR THEIR CHILDREN | ||
Sec. 1104.151. DEFINITIONS | ||
Sec. 1104.152. REQUIREMENTS FOR DECLARATION | ||
Sec. | 1104.153. FORM AND CONTENT OF DECLARATION AND | |
SELF-PROVING AFFIDAVIT | ||
Sec. 1104.154. ALTERNATIVE TO SELF-PROVING AFFIDAVIT | ||
Sec. 1104.155. ALTERNATE SELF-PROVING OF DECLARATION | ||
Sec. | 1104.156. FILING OF DECLARATION AND SELF-PROVING | |
AFFIDAVIT | ||
Sec. 1104.157. PROOF OF DECLARATION | ||
Sec. 1104.158. PRIMA FACIE EVIDENCE | ||
Sec. 1104.159. REVOCATION OF DECLARATION | ||
Sec. | 1104.160. ALTERNATE OR OTHER COURT-APPOINTED | |
GUARDIAN | ||
[Sections 1104.161-1104.200 reserved for expansion] | ||
SUBCHAPTER E. WRITTEN DECLARATION TO DESIGNATE GUARDIAN BEFORE | NEED ARISES | |
NEED ARISES | ||
Sec. 1104.201. DEFINITIONS | ||
Sec. 1104.202. DESIGNATION OF GUARDIAN FOR DECLARANT | ||
Sec. 1104.203. REQUIREMENTS FOR DECLARATION | ||
Sec. | 1104.204. FORM AND CONTENT OF DECLARATION AND | |
SELF-PROVING AFFIDAVIT | ||
Sec. 1104.205. ALTERNATIVE TO SELF-PROVING AFFIDAVIT | ||
Sec. 1104.206. ALTERNATE SELF-PROVING OF DECLARATION | ||
Sec. | 1104.207. FILING OF DECLARATION AND SELF-PROVING | |
AFFIDAVIT | ||
Sec. 1104.208. PROOF OF DECLARATION | ||
Sec. 1104.209. PRIMA FACIE EVIDENCE | ||
Sec. 1104.210. REVOCATION OF DECLARATION | ||
Sec. | 1104.211. EFFECT OF DIVORCE ON DESIGNATION OF | |
SPOUSE | ||
Sec. | 1104.212. ALTERNATE OR OTHER COURT-APPOINTED | |
GUARDIAN | ||
[Sections 1104.213-1104.250 reserved for expansion] | ||
SUBCHAPTER F. CERTIFICATION REQUIREMENTS | ||
FOR CERTAIN GUARDIANS | ||
Sec. | 1104.251. CERTIFICATION REQUIRED FOR CERTAIN | |
GUARDIANS | ||
Sec. 1104.252. EFFECT OF PROVISIONAL CERTIFICATE | ||
Sec. | 1104.253. EXCEPTION FOR FAMILY MEMBERS AND | |
FRIENDS | ||
Sec. 1104.254. EXCEPTION FOR CERTAIN VOLUNTEERS | ||
Sec. 1104.255. EXPIRATION OF CERTIFICATION | ||
Sec. | 1104.256. FAILURE TO COMPLY; COURT'S DUTY TO | |
NOTIFY | ||
Sec. | 1104.257. INFORMATION REGARDING SERVICES PROVIDED | |
BY GUARDIANSHIP PROGRAM | ||
Sec. | 1104.258. INFORMATION REGARDING CERTAIN STATE | |
SERVICES | ||
[Sections 1104.259-1104.300 reserved for expansion] | ||
SUBCHAPTER G. PRIVATE PROFESSIONAL GUARDIANS | ||
Sec. 1104.301. CERTIFICATION AND REGISTRATION REQUIRED | ||
Sec. 1104.302. ANNUAL CERTIFICATE OF REGISTRATION | ||
Sec. 1104.303. REQUIREMENTS OF APPLICATION | ||
Sec. 1104.304. TERM OF REGISTRATION; RENEWAL | ||
Sec. 1104.305. USE OF REGISTRATION INFORMATION | ||
Sec. 1104.306. USE OF NAMES AND BUSINESS ADDRESSES | ||
[Sections 1104.307-1104.350 reserved for expansion] | ||
SUBCHAPTER H. GROUNDS FOR DISQUALIFICATION | ||
Sec. 1104.351. INCAPACITY OR INEXPERIENCE | ||
Sec. 1104.352. UNSUITABILITY | ||
Sec. | 1104.353. NOTORIOUSLY BAD CONDUCT; PRESUMPTION | |
CONCERNING BEST INTEREST | ||
Sec. 1104.354. CONFLICT OF INTEREST | ||
Sec. 1104.355. DISQUALIFIED IN DECLARATION | ||
Sec. 1104.356. LACK OF CERTAIN REQUIRED CERTIFICATION | ||
Sec. 1104.357. NONRESIDENT WITHOUT RESIDENT AGENT | ||
[Sections 1104.358-1104.400 reserved for expansion] | ||
SUBCHAPTER I. ACCESS TO CRIMINAL HISTORY RECORDS | ||
Sec. 1104.401. DEFINITION | ||
Sec. | 1104.402. COURT CLERK'S DUTY TO OBTAIN CRIMINAL | |
TO CHARGE FEE | ||
Sec. | 1104.403. SUBMISSION OF CRIMINAL HISTORY RECORD | |
INFORMATION BY PROPOSED GUARDIAN | ||
Sec. | 1104.404. EXCEPTION FOR INFORMATION CONCERNING | |
CERTAIN PERSONS HOLDING A CERTIFICATE | ||
Sec. 1104.405. INFORMATION FOR EXCLUSIVE USE OF COURT | ||
Sec. | 1104.406. DEPARTMENT'S DUTY TO OBTAIN CRIMINAL | |
HISTORY RECORD INFORMATION | ||
Sec. 1104.407. DUTY TO PROVIDE INFORMATION ON REQUEST | ||
Sec. | 1104.408. INFORMATION FOR EXCLUSIVE USE OF COURT | |
OR GUARDIANSHIP CERTIFICATION BOARD | ||
Sec. 1104.409. USE OF INFORMATION BY COURT | ||
Sec. | 1104.410. USE OF INFORMATION BY GUARDIANSHIP | |
CERTIFICATION BOARD | ||
Sec. | 1104.411. CRIMINAL OFFENSE FOR UNAUTHORIZED | |
RELEASE OR DISCLOSURE | ||
Sec. | 1104.412. EFFECT OF SUBCHAPTER ON DEPARTMENT'S | |
INFORMATION | ||
CHAPTER 1104. SELECTION OF AND ELIGIBILITY TO SERVE AS GUARDIAN | ||
SUBCHAPTER A. GENERAL PROVISIONS RELATING TO APPOINTMENT OF | ||
GUARDIAN | ||
. (a) Only | ||
one person may be appointed as guardian of the person or estate, but | ||
one person may be appointed guardian of the person and another | ||
person may be appointed guardian of the estate, if it is in the best | ||
interest of the incapacitated person or ward. | ||
(b) Subsection (a) does not prohibit the joint appointment, | ||
if the court finds it to be in the best interest of the | ||
incapacitated person or ward, of: | ||
(1) a husband and wife; | ||
(2) joint managing conservators; | ||
(3) co-guardians appointed under the laws of a | ||
jurisdiction other than this state; or | ||
(4) both parents of an adult who is incapacitated if | ||
the incapacitated person: | ||
(A) has not been the subject of a suit affecting | ||
the parent-child relationship; or | ||
(B) has been the subject of a suit affecting the | ||
parent-child relationship and both of the incapacitated person's | ||
parents were named as joint managing conservators in the suit but | ||
are no longer serving in that capacity. (Tex. Prob. Code, Sec. | ||
690.) | ||
. Before | ||
appointing a guardian, the court shall make a reasonable effort to | ||
consider the incapacitated person's preference of the person to be | ||
appointed guardian and, to the extent consistent with other | ||
provisions of this title, shall give due consideration to the | ||
preference indicated by the incapacitated person. (Tex. Prob. | ||
Code, Sec. 689.) | ||
[Sections 1104.003-1104.050 reserved for expansion] | ||
SUBCHAPTER B. SELECTION OF GUARDIAN FOR MINOR | ||
. (a) If the | ||
parents live together, both parents are the natural guardians of | ||
the person of the minor children by the marriage, and one of the | ||
parents is entitled to be appointed guardian of the children's | ||
estates. If the parents disagree as to which parent should be | ||
appointed, the court shall make the appointment on the basis of | ||
which parent is better qualified to serve in that capacity. | ||
(b) The rights of parents who do not live together are | ||
equal. The court shall assign the guardianship of their minor | ||
children to one parent considering only the best interests of the | ||
children. | ||
(c) If one parent is deceased, the surviving parent is the | ||
natural guardian of the person of the minor children and is entitled | ||
to be appointed guardian of the minor children's estates. (Tex. | ||
Prob. Code, Sec. 676(b).) | ||
. In appointing a | ||
guardian for a minor orphan: | ||
(1) if the last surviving parent did not appoint a | ||
guardian, the nearest ascendant in the direct line of the minor is | ||
entitled to guardianship of both the person and the estate of the | ||
minor; | ||
(2) if more than one ascendant exists in the same | ||
degree in the direct line of the minor, the court shall appoint one | ||
ascendant according to circumstances and considering the minor's | ||
best interests; | ||
(3) if the minor does not have an ascendant in the | ||
direct line of the minor: | ||
(A) the court shall appoint the nearest of kin; | ||
or | ||
(B) if two or more persons are in the same degree | ||
of kinship to the minor, the court shall appoint one of those | ||
persons according to circumstances and considering the minor's best | ||
interests; and | ||
(4) if the minor does not have a relative who is | ||
eligible to be guardian, or if none of the eligible persons apply to | ||
be guardian, the court shall appoint a qualified person as | ||
guardian. (Tex. Prob. Code, Sec. 676(c).) | ||
DECLARATION | ||
the surviving parent of a minor may by will or written declaration | ||
appoint any eligible person to be guardian of the person of the | ||
parent's minor children after the parent dies or in the event of the | ||
parent's incapacity. | ||
(b) After the surviving parent of a minor dies or if the | ||
court finds the surviving parent is an incapacitated person, the | ||
court shall appoint the person designated in the will or | ||
declaration to serve as guardian of the person of the parent's minor | ||
children in preference to another otherwise entitled to serve as | ||
guardian under this title, unless the court finds that the person | ||
designated to serve as guardian: | ||
(1) is disqualified; | ||
(2) is deceased; | ||
(3) refuses to serve; or | ||
(4) would not serve the minor children's best | ||
interests. | ||
(c) On compliance with this title, an eligible person is | ||
also entitled to be appointed guardian of the minor children's | ||
estates after the surviving parent dies or in the event of the | ||
surviving parent's incapacity. (Tex. Prob. Code, Secs. 676(d), | ||
(e), (f).) | ||
. (a) | ||
Notwithstanding any other provision of this subchapter, if an | ||
application is filed for the guardianship of the person or estate, | ||
or both, of a minor at least 12 years of age, the minor may select | ||
the guardian by a writing filed with the clerk, if the court finds | ||
that the selection is in the minor's best interest and approves the | ||
selection. | ||
(b) Notwithstanding any other provision of this subchapter, | ||
a minor at least 12 years of age may select another guardian of the | ||
minor's person or estate, or both, if the minor has a guardian | ||
appointed by the court, by will of the minor's parent, or by written | ||
declaration of the minor's parent, and that guardian dies, resigns, | ||
or is removed from guardianship. The minor must make the selection | ||
by filing an application in open court in person or by an attorney. | ||
The court shall make the appointment and revoke the letters of | ||
guardianship of the former guardian if the court is satisfied that: | ||
(1) the person selected is suitable and competent; and | ||
(2) the appointment of the person is in the minor's | ||
best interest. (Tex. Prob. Code, Secs. 676(a), 680.) | ||
[Sections 1104.055-1104.100 reserved for expansion] | ||
SUBCHAPTER C. SELECTION OF GUARDIAN FOR INCAPACITATED PERSON OTHER | ||
THAN MINOR | ||
BEST INTERESTS | ||
incapacitated person other than a minor according to the | ||
circumstances and considering the incapacitated person's best | ||
interests. (Tex. Prob. Code, Sec. 677(a) (part).) | ||
. If the court finds | ||
that two or more eligible persons are equally entitled to be | ||
appointed guardian of an incapacitated person: | ||
(1) the incapacitated person's spouse is entitled to | ||
the guardianship in preference to any other person, if the spouse is | ||
one of the eligible persons; | ||
(2) the eligible person nearest of kin to the | ||
incapacitated person is entitled to the guardianship, if the | ||
incapacitated person's spouse is not one of the eligible persons; | ||
or | ||
(3) the court shall appoint the eligible person who is | ||
best qualified to serve as guardian if: | ||
(A) the persons entitled to serve under | ||
Subdivisions (1) and (2) refuse to serve; | ||
(B) two or more persons entitled to serve under | ||
Subdivision (2) are related in the same degree of kinship to the | ||
incapacitated person; or | ||
(C) neither the incapacitated person's spouse | ||
nor any person related to the incapacitated person is an eligible | ||
person. (Tex. Prob. Code, Sec. 677(a) (part).) | ||
DECLARATION | ||
an incapacitated person may, if the parent is the guardian of the | ||
person of the adult individual, by will or written declaration | ||
appoint an eligible person to serve as guardian of the person of the | ||
adult individual after the parent dies or in the event of the | ||
parent's incapacity. | ||
(b) After the surviving parent dies or if the court finds | ||
the surviving parent has become an incapacitated person after being | ||
appointed the adult individual's guardian, the court shall appoint | ||
the person designated in the will or declaration to serve as | ||
guardian in preference to any other person otherwise entitled to | ||
serve as guardian under this title, unless the court finds that the | ||
person designated to serve as guardian: | ||
(1) is disqualified; | ||
(2) is deceased; | ||
(3) refuses to serve; or | ||
(4) would not serve the adult individual's best | ||
interests. | ||
(c) On compliance with this title, the eligible person | ||
appointed under Subsection (b) is also entitled to be appointed | ||
guardian of the estate of the adult individual after the surviving | ||
parent dies or in the event of the surviving parent's incapacity, if | ||
the surviving parent is the guardian of the estate of the adult | ||
individual. (Tex. Prob. Code, Secs. 677(b), (c), (d).) | ||
[Sections 1104.104-1104.150 reserved for expansion] | ||
SUBCHAPTER D. WRITTEN DECLARATION BY CERTAIN PARENTS TO APPOINT | ||
GUARDIAN FOR THEIR CHILDREN | ||
. In this subchapter: | ||
(1) "Declaration" means a written declaration of a | ||
person that: | ||
(A) appoints a guardian for the person's child | ||
under Section 1104.053(a) or 1104.103(a); and | ||
(B) satisfies the requirements of this | ||
subdivision and Sections 1104.152, 1104.153, 1104.154, 1104.156, | ||
1104.159, and 1104.160. | ||
(2) "Self-proving affidavit" means an affidavit the | ||
form and content of which substantially comply with the | ||
requirements of Section 1104.153. | ||
(3) "Self-proving declaration" includes a | ||
self-proving affidavit that is attached or annexed to a | ||
declaration. (Tex. Prob. Code, Secs. 677A(h), 677B(a).) | ||
. (a) A | ||
declaration appointing an eligible person to be guardian of the | ||
person of a parent's child under Section 1104.053(a) or 1104.103(a) | ||
must be signed by the declarant and be: | ||
(1) written wholly in the declarant's handwriting; or | ||
(2) attested to in the declarant's presence by at least | ||
two credible witnesses who are: | ||
(A) 14 years of age or older; and | ||
(B) not named as guardian or alternate guardian | ||
in the declaration. | ||
(b) Notwithstanding Subsection (a), a declaration that is | ||
not written wholly in the declarant's handwriting may be signed by | ||
another person for the declarant under the direction of and in the | ||
presence of the declarant. | ||
(c) A declaration described by Subsection (a)(2) may have | ||
attached a self-proving affidavit signed by the declarant and the | ||
witnesses attesting to: | ||
(1) the competence of the declarant; and | ||
(2) the execution of the declaration. (Tex. Prob. | ||
Code, Secs. 677A(a), (b), (c).) | ||
SELF-PROVING AFFIDAVIT | ||
any form adequate to clearly indicate the declarant's intention to | ||
designate a guardian for the declarant's child. | ||
(b) The following form may be used but is not required to be | ||
used: | ||
DECLARATION OF APPOINTMENT OF GUARDIAN FOR MY CHILDREN | ||
IN THE EVENT OF MY DEATH OR INCAPACITY | ||
I, __________, make this Declaration to appoint as guardian | ||
for my child or children, listed as follows, in the event of my | ||
death or incapacity: | ||
____________________________________________________________ | ||
____________________________________________________________ | ||
____________________________________________________________ | ||
(add blanks as appropriate) | ||
I designate __________ to serve as guardian of the person of | ||
my (child or children), __________ as first alternate guardian of | ||
the person of my (child or children), __________ as second | ||
alternate guardian of the person of my (child or children), and | ||
__________ as third alternate guardian of the person of my (child or | ||
children). | ||
I direct that the guardian of the person of my (child or | ||
children) serve (with or without) bond. | ||
(If applicable) I designate __________ to serve as guardian | ||
of the estate of my (child or children), __________ as first | ||
alternate guardian of the estate of my (child or children), | ||
__________ as second alternate guardian of the estate of my (child | ||
or children), and __________ as third alternate guardian of the | ||
estate of my (child or children). | ||
If any guardian or alternate guardian dies, does not qualify, | ||
or resigns, the next named alternate guardian becomes guardian of | ||
my (child or children). | ||
Signed this __________ day of __________, 20__. | ||
______________________________ | ||
Declarant | ||
____________________________________________________________ | ||
Witness Witness | ||
SELF-PROVING AFFIDAVIT | ||
Before me, the undersigned authority, on this date personally | ||
appeared __________, the declarant, and __________ and __________ | ||
as witnesses, and all being duly sworn, the declarant said that the | ||
above instrument was his or her Declaration of Appointment of | ||
Guardian for the Declarant's Children in the Event of Declarant's | ||
Death or Incapacity and that the declarant had made and executed it | ||
for the purposes expressed in the declaration. The witnesses | ||
declared to me that they are each 14 years of age or older, that they | ||
saw the declarant sign the declaration, that they signed the | ||
declaration as witnesses, and that the declarant appeared to them | ||
to be of sound mind. | ||
______________________________ | ||
Declarant | ||
____________________________________________________________ | ||
Affiant Affiant | ||
Subscribed and sworn to before me by __________, the above | ||
named declarant, and __________ (names of affiants) affiants, on | ||
this ___ day of __________, 20__. | ||
___________________________ | ||
Notary Public in and for the | ||
State of Texas | ||
My Commission expires: | ||
___________________________ | ||
(Tex. Prob. Code, Sec. 677A(g).) | ||
. (a) | ||
As an alternative to the self-proving affidavit authorized by | ||
Section 1104.153, a declaration of appointment of a guardian for | ||
the declarant's children in the event of the declarant's death or | ||
incapacity may be simultaneously executed, attested, and made | ||
self-proved by including the following in substantially the same | ||
form and with substantially the same contents: | ||
I, _________________________, as declarant, after being duly | ||
sworn, declare to the undersigned witnesses and to the undersigned | ||
authority that this instrument is my Declaration of Appointment of | ||
Guardian for My Children in the Event of My Death or Incapacity, and | ||
that I have made and executed it for the purposes expressed in the | ||
declaration. I now sign this declaration in the presence of the | ||
attesting witnesses and the undersigned authority on this ____ day | ||
of ________, 20__. | ||
___________________________ | ||
Declarant | ||
The undersigned, _____________________ and | ||
___________________, each being 14 years of age or older, after | ||
being duly sworn, declare to the declarant and to the undersigned | ||
authority that the declarant declared to us that this instrument is | ||
the declarant's Declaration of Appointment of Guardian for the | ||
Declarant's Children in the Event of Declarant's Death or | ||
Incapacity and that the declarant executed it for the purposes | ||
expressed in the declaration. The declarant then signed this | ||
declaration and we believe the declarant to be of sound mind. We now | ||
sign our names as attesting witnesses on this _____ day of | ||
___________, 20___. | ||
___________________________ | ||
Witness | ||
___________________________ | ||
Witness | ||
Subscribed and sworn to before me by the above named | ||
declarant, and affiants, this ____ day of __________________, 20__. | ||
___________________________ | ||
Notary Public in and for the | ||
State of Texas | ||
My Commission expires: | ||
___________________________ | ||
(b) A declaration that is executed as provided by Subsection | ||
(a) is considered self-proved to the same extent a declaration | ||
executed with a self-proving affidavit under Section 1104.153 is | ||
considered self-proved. (Tex. Prob. Code, Secs. 677A(i), (j).) | ||
. At | ||
any time during the declarant's lifetime, a declaration described | ||
by Section 1104.152(a)(1) may be made self-proved in the same form | ||
and manner that a will written wholly in the testator's handwriting | ||
is made self-proved under Section 251.107. (Tex. Prob. Code, Sec. | ||
677B(c).) | ||
AFFIDAVIT | ||
filed with the court at any time after the application for | ||
appointment of a guardian is filed and before a guardian is | ||
appointed. (Tex. Prob. Code, Sec. 677A(d).) | ||
. (a) The court may | ||
admit a declaration that is self-proved into evidence without the | ||
testimony of witnesses attesting to the competency of the declarant | ||
and the execution of the declaration. Additional proof of the | ||
execution of the declaration with the formalities and solemnities | ||
and under the circumstances required to make it a valid declaration | ||
is not necessary. | ||
(b) A declaration described by Section 1104.152(a)(1) that | ||
is not self-proved may be proved in the same manner that a will | ||
written wholly in the testator's handwriting is proved under | ||
Section 256.154. | ||
(c) A declaration described by Section 1104.152(a)(2) that | ||
is not self-proved may be proved in the same manner that an attested | ||
written will produced in court is proved under Section 256.153. | ||
(Tex. Prob. Code, Secs. 677B(b), (e), (f).) | ||
. A properly executed | ||
and witnessed self-proving declaration, including a declaration | ||
and self-proving affidavit described by Section 1104.152(c), is | ||
prima facie evidence that: | ||
(1) the declarant was competent at the time the | ||
declarant executed the declaration; and | ||
(2) the guardian named in the declaration would serve | ||
the best interests of the ward or incapacitated person. (Tex. Prob. | ||
Code, Sec. 677B(d).) | ||
. The declarant | ||
may revoke a declaration in any manner provided for the revocation | ||
of a will under Section 253.002, including the subsequent | ||
re-execution of the declaration in the manner required for the | ||
original declaration. (Tex. Prob. Code, Sec. 677A(f).) | ||
GUARDIAN | ||
alternate guardian named in a declaration if the designated | ||
guardian does not qualify, is deceased, refuses to serve, resigns, | ||
or dies after being appointed guardian, or is otherwise unavailable | ||
to serve as guardian. | ||
(b) The court shall appoint another person to serve as | ||
guardian as otherwise provided by this title if the designated | ||
guardian and all designated alternate guardians named in the | ||
declaration: | ||
(1) do not qualify; | ||
(2) are deceased; | ||
(3) refuse to serve; or | ||
(4) later die or resign. (Tex. Prob. Code, Sec. | ||
677A(e).) | ||
[Sections 1104.161-1104.200 reserved for expansion] | ||
SUBCHAPTER E. WRITTEN DECLARATION TO DESIGNATE GUARDIAN BEFORE | ||
NEED ARISES | ||
. In this subchapter: | ||
(1) "Declaration" means a written declaration of a | ||
person that: | ||
(A) designates another person to serve as a | ||
guardian of the person or estate of the declarant; and | ||
(B) satisfies the requirements of this | ||
subdivision and Sections 1104.202, 1104.203, 1104.204, 1104.205, | ||
1104.207, 1104.210, 1104.211, and 1104.212. | ||
(2) "Self-proving affidavit" means an affidavit the | ||
form and content of which substantially comply with the | ||
requirements of Section 1104.204. | ||
(3) "Self-proving declaration" includes a | ||
self-proving affidavit that is attached or annexed to a | ||
declaration. (Tex. Prob. Code, Secs. 679(j), 679A(a).) | ||
. (a) | ||
A person other than an incapacitated person may designate by | ||
declaration a person to serve as guardian of the person or estate of | ||
the declarant if the declarant becomes incapacitated. The court | ||
shall appoint the person designated in the declaration to serve as | ||
guardian in preference to any other person otherwise entitled to | ||
serve as guardian under this title, unless the court finds that the | ||
person designated to serve as guardian: | ||
(1) is disqualified; or | ||
(2) would not serve the ward's best interests. | ||
(b) A declarant may, in the declaration, disqualify a named | ||
person from serving as guardian of the declarant's person or | ||
estate. The court may not under any circumstances appoint as | ||
guardian a person named under this subsection. (Tex. Prob. Code, | ||
Secs. 679(a) (part), (b), (f) (part).) | ||
. (a) A | ||
declaration under this subchapter must be signed by the declarant | ||
and be: | ||
(1) written wholly in the declarant's handwriting; or | ||
(2) attested to in the declarant's presence by at least | ||
two credible witnesses who are: | ||
(A) 14 years of age or older; and | ||
(B) not named as guardian or alternate guardian | ||
in the declaration. | ||
(b) Notwithstanding Subsection (a), a declaration that is | ||
not written wholly in the declarant's handwriting may be signed by | ||
another person for the declarant under the direction of and in the | ||
presence of the declarant. | ||
(c) A declaration described by Subsection (a)(2) may have | ||
attached a self-proving affidavit signed by the declarant and the | ||
witnesses attesting to: | ||
(1) the competence of the declarant; and | ||
(2) the execution of the declaration. (Tex. Prob. | ||
Code, Secs. 679(a) (part), (c), (d).) | ||
SELF-PROVING AFFIDAVIT | ||
any form adequate to clearly indicate the declarant's intention to | ||
designate a guardian. | ||
(b) The following form may be used but is not required to be | ||
used: | ||
DECLARATION OF GUARDIAN | ||
IN THE EVENT OF LATER INCAPACITY OR NEED OF GUARDIAN | ||
I, __________, make this Declaration of Guardian, to operate | ||
if the need for a guardian for me later arises. | ||
1. I designate __________ to serve as guardian of my person, | ||
__________ as first alternate guardian of my person, __________ as | ||
second alternate guardian of my person, and __________ as third | ||
alternate guardian of my person. | ||
2. I designate __________ to serve as guardian of my estate, | ||
__________ as first alternate guardian of my estate, __________ as | ||
second alternate guardian of my estate, and __________ as third | ||
alternate guardian of my estate. | ||
3. If any guardian or alternate guardian dies, does not | ||
qualify, or resigns, the next named alternate guardian becomes my | ||
guardian. | ||
4. I expressly disqualify the following persons from | ||
serving as guardian of my person: __________, __________, and | ||
__________. | ||
5. I expressly disqualify the following persons from | ||
serving as guardian of my estate: __________, __________, and | ||
__________. | ||
Signed this ___ day of __________, 20__. | ||
______________________________ | ||
Declarant | ||
____________________________ ________________________________ | ||
Witness Witness | ||
SELF-PROVING AFFIDAVIT | ||
Before me, the undersigned authority, on this date personally | ||
appeared ______________, the declarant, and ____________ and | ||
____________ as witnesses, and all being duly sworn, the declarant | ||
said that the above instrument was his or her Declaration of | ||
Guardian and that the declarant had made and executed it for the | ||
purposes expressed in the declaration. The witnesses declared to | ||
me that they are each 14 years of age or older, that they saw the | ||
declarant sign the declaration, that they signed the declaration as | ||
witnesses, and that the declarant appeared to them to be of sound | ||
mind. | ||
______________________________ | ||
Declarant | ||
____________________________ ________________________________ | ||
Affiant Affiant | ||
Subscribed and sworn to before me by the above named | ||
declarant and affiants on this ____ day of __________, 20__. | ||
__________________________ | ||
Notary Public in and for the | ||
State of Texas | ||
My Commission expires: | ||
__________________________ | ||
(Tex. Prob. Code, Sec. 679(i).) | ||
. (a) | ||
As an alternative to the self-proving affidavit authorized by | ||
Section 1104.204, a declaration of guardian in the event of later | ||
incapacity or need of guardian may be simultaneously executed, | ||
attested, and made self-proved by including the following in | ||
substantially the same form and with substantially the same | ||
contents: | ||
I, _________________________, as declarant, after being duly | ||
sworn, declare to the undersigned witnesses and to the undersigned | ||
authority that this instrument is my Declaration of Guardian in the | ||
Event of Later Incapacity or Need of Guardian, and that I have made | ||
and executed it for the purposes expressed in the declaration. I now | ||
sign this declaration in the presence of the attesting witnesses | ||
and the undersigned authority on this ____ day of ________, 20__. | ||
___________________________ | ||
Declarant | ||
The undersigned, _____________________ and | ||
___________________, each being 14 years of age or older, after | ||
being duly sworn, declare to the declarant and to the undersigned | ||
authority that the declarant declared to us that this instrument is | ||
the declarant's Declaration of Guardian in the Event of Later | ||
Incapacity or Need of Guardian and that the declarant executed it | ||
for the purposes expressed in the declaration. The declarant then | ||
signed this declaration and we believe the declarant to be of sound | ||
mind. We now sign our names as attesting witnesses on this _____ day | ||
of ___________, 20___. | ||
___________________________ | ||
Witness | ||
___________________________ | ||
Witness | ||
Subscribed and sworn to before me by the above named | ||
declarant, and affiants, this ____ day of __________________, 20__. | ||
__________________________ | ||
Notary Public in and for the | ||
State of Texas | ||
My Commission expires: | ||
__________________________ | ||
(b) A declaration that is executed as provided by Subsection | ||
(a) is considered self-proved to the same extent a declaration | ||
executed with a self-proving affidavit under Section 1104.204 is | ||
considered self-proved. (Tex. Prob. Code, Secs. 679(k), (l).) | ||
. At | ||
any time during the declarant's lifetime, a declaration described | ||
by Section 1104.203(a)(1) may be made self-proved in the same form | ||
and manner that a will written wholly in the testator's handwriting | ||
is made self-proved under Section 251.107. (Tex. Prob. Code, Sec. | ||
679A(c).) | ||
AFFIDAVIT | ||
filed with the court at any time after the application for | ||
appointment of a guardian is filed and before a guardian is | ||
appointed. (Tex. Prob. Code, Sec. 679(e).) | ||
. (a) The court may | ||
admit a declaration that is self-proved into evidence without the | ||
testimony of witnesses attesting to the competency of the declarant | ||
and the execution of the declaration. Additional proof of the | ||
execution of the declaration with the formalities and solemnities | ||
and under the circumstances required to make it a valid declaration | ||
is not necessary. | ||
(b) A declaration described by Section 1104.203(a)(1) that | ||
is not self-proved may be proved in the same manner that a will | ||
written wholly in the testator's handwriting is proved under | ||
Section 256.154. | ||
(c) A declaration described by Section 1104.203(a)(2) that | ||
is not self-proved may be proved in the same manner that an attested | ||
written will produced in court is proved under Section 256.153. | ||
(Tex. Prob. Code, Secs. 679A(b), (e), (f).) | ||
. A properly executed | ||
and witnessed self-proving declaration, including a declaration | ||
and self-proving affidavit described by Section 1104.203(c), is | ||
prima facie evidence that: | ||
(1) the declarant was competent at the time the | ||
declarant executed the declaration; and | ||
(2) the guardian named in the declaration would serve | ||
the best interests of the ward or incapacitated person. (Tex. Prob. | ||
Code, Sec. 679A(d).) | ||
. The declarant | ||
may revoke a declaration in any manner provided for the revocation | ||
of a will under Section 253.002, including the subsequent | ||
re-execution of the declaration in the manner required for the | ||
original declaration. (Tex. Prob. Code, Sec. 679(g).) | ||
. | ||
If a declarant designates the declarant's spouse to serve as | ||
guardian under this subchapter, and the declarant is subsequently | ||
divorced from that spouse before a guardian is appointed, the | ||
provision of the declaration designating the spouse has no effect. | ||
(Tex. Prob. Code, Sec. 679(h).) | ||
GUARDIAN | ||
alternate guardian named in a declaration if the designated | ||
guardian does not qualify, is deceased, refuses to serve, resigns, | ||
or dies after being appointed guardian, or is otherwise unavailable | ||
to serve as guardian. | ||
(b) The court shall appoint another person to serve as | ||
guardian as otherwise provided by this title if the designated | ||
guardian and all designated alternate guardians named in the | ||
declaration: | ||
(1) do not qualify; | ||
(2) are deceased; | ||
(3) refuse to serve; or | ||
(4) later die or resign. (Tex. Prob. Code, Sec. 679(f) | ||
(part).) | ||
[Sections 1104.213-1104.250 reserved for expansion] | ||
SUBCHAPTER F. CERTIFICATION REQUIREMENTS | ||
FOR CERTAIN GUARDIANS | ||
GUARDIANS | ||
Chapter 111, Government Code, if the individual: | ||
(1) is a private professional guardian; | ||
(2) will represent the interests of a ward as a | ||
guardian on behalf of a private professional guardian; | ||
(3) is providing guardianship services to a ward of a | ||
guardianship program on the program's behalf, except as provided by | ||
Section 1104.254; or | ||
(4) is an employee of the Department of Aging and | ||
Disability Services providing guardianship services to a ward of | ||
the department. | ||
(b) An individual employed by or contracting with a | ||
guardianship program must be certified as provided by Subsection | ||
(a) to provide guardianship services to a ward of the program. | ||
(Tex. Prob. Code, Secs. 696A, 697B(a).) | ||
. For | ||
purposes of this subchapter, a person who holds a provisional | ||
certificate issued under Section 111.0421, Government Code, is | ||
considered to be certified. (Tex. Prob. Code, Sec. 697B(e).) | ||
. A | ||
family member or friend of an incapacitated person is not required | ||
to be certified under Subchapter C, Chapter 111, Government Code, | ||
or any other law to serve as the person's guardian. (Tex. Prob. | ||
Code, Sec. 696B.) | ||
. An | ||
individual volunteering with a guardianship program is not required | ||
to be certified as provided by Section 1104.251 to provide | ||
guardianship services on the program's behalf. (Tex. Prob. Code, | ||
Sec. 697B(d).) | ||
. A person whose | ||
certification under Subchapter C, Chapter 111, Government Code, has | ||
expired must obtain a new certification under that subchapter to | ||
provide or continue providing guardianship services to a ward or | ||
incapacitated person under this title. (Tex. Prob. Code, Sec. | ||
697B(b).) | ||
. | ||
The court shall notify the Guardianship Certification Board if the | ||
court becomes aware of a person who is not complying with: | ||
(1) the terms of a certification issued under | ||
Subchapter C, Chapter 111, Government Code; or | ||
(2) the standards and rules adopted under that | ||
subchapter. (Tex. Prob. Code, Sec. 697B(c).) | ||
GUARDIANSHIP PROGRAM | ||
guardianship program operating in a county shall submit to the | ||
county clerk a copy of the report submitted to the Guardianship | ||
Certification Board under Section 111.044, Government Code. (Tex. | ||
Prob. Code, Sec. 697A(a).) | ||
EMPLOYEES PROVIDING GUARDIANSHIP SERVICES | ||
31 of each year, the Department of Aging and Disability Services | ||
shall submit to the Guardianship Certification Board a statement | ||
containing: | ||
(1) the name, address, and telephone number of each | ||
department employee who is or will be providing guardianship | ||
services to a ward or proposed ward on the department's behalf; and | ||
(2) the name of each county in which each employee | ||
named in Subdivision (1) is providing or is authorized to provide | ||
those services. (Tex. Prob. Code, Sec. 697A(b).) | ||
[Sections 1104.259-1104.300 reserved for expansion] | ||
SUBCHAPTER G. PRIVATE PROFESSIONAL GUARDIANS | ||
. A | ||
court may not appoint a private professional guardian to serve as a | ||
guardian or permit a private professional guardian to continue to | ||
serve as a guardian under this title if the private professional | ||
guardian is not: | ||
(1) certified as provided by Section 1104.251(a), | ||
1104.252, 1104.255, or 1104.256; or | ||
(2) in compliance with the registration requirements | ||
of this subchapter. (Tex. Prob. Code, Sec. 696.) | ||
. A | ||
private professional guardian must annually apply for a certificate | ||
of registration. (Tex. Prob. Code, Sec. 697(a) (part).) | ||
. (a) An | ||
application for a certificate of registration must include a sworn | ||
statement containing the following information concerning a | ||
private professional guardian or each person who represents or | ||
plans to represent the interests of a ward as a guardian on behalf | ||
of the private professional guardian: | ||
(1) place of residence; | ||
(2) business address and business telephone number; | ||
(3) educational background and professional | ||
experience; | ||
(4) three or more professional references; | ||
(5) the name of each ward the private professional | ||
guardian or person is or will be serving as a guardian; | ||
(6) the aggregate fair market value of the property of | ||
all wards that is or will be managed by the private professional | ||
guardian or person; | ||
(7) whether the private professional guardian or | ||
person has ever been removed as a guardian by the court or resigned | ||
as a guardian in a particular case, and, if so: | ||
(A) a description of the circumstances causing | ||
the removal or resignation; and | ||
(B) the style of the suit, the docket number, and | ||
the court having jurisdiction over the proceeding; and | ||
(8) the certification number or provisional | ||
certification number issued to the private professional guardian or | ||
person by the Guardianship Certification Board. | ||
(b) The application must be: | ||
(1) made to the clerk of the county having venue of the | ||
proceeding for the appointment of a guardian; and | ||
(2) accompanied by a nonrefundable fee set by the | ||
clerk in an amount necessary to cover the cost of administering this | ||
subchapter. (Tex. Prob. Code, Secs. 697(a) (part), (b).) | ||
. (a) The term | ||
of an initial registration begins on the date the requirements | ||
under Section 1104.303 are met and extends through December 31 of | ||
the year in which the application is made. After the term of the | ||
initial registration, the term of registration begins on January 1 | ||
and extends through December 31 of each year. | ||
(b) An application to renew a registration must be completed | ||
during December of the year preceding the year for which the renewal | ||
is requested. (Tex. Prob. Code, Sec. 697(c).) | ||
. (a) The | ||
clerk shall bring the information received under Section 1104.303 | ||
to the judge's attention for review. | ||
(b) The judge shall use the information only to determine | ||
whether to appoint, remove, or continue the appointment of a | ||
private professional guardian. (Tex. Prob. Code, Sec. 697(d).) | ||
. Not | ||
later than January 31 of each year, the clerk shall submit to the | ||
Guardianship Certification Board the name and business address of | ||
each private professional guardian who has satisfied the | ||
registration requirements of this subchapter during the preceding | ||
year. (Tex. Prob. Code, Sec. 697(e).) | ||
[Sections 1104.307-1104.350 reserved for expansion] | ||
SUBCHAPTER H. GROUNDS FOR DISQUALIFICATION | ||
. A person may | ||
not be appointed guardian if the person is: | ||
(1) a minor or other incapacitated person; or | ||
(2) a person who, because of inexperience, lack of | ||
education, or other good reason, is incapable of properly and | ||
prudently managing and controlling the person or estate of the | ||
ward. (Tex. Prob. Code, Sec. 681 (part).) | ||
. A person may not be | ||
appointed guardian if the court finds the person to be unsuitable. | ||
(Tex. Prob. Code, Sec. 681 (part).) | ||
CONCERNING BEST INTEREST | ||
guardian if the person's conduct is notoriously bad. | ||
(b) It is presumed to be not in the best interests of a ward | ||
or incapacitated person to appoint as guardian of the ward or | ||
incapacitated person a person who has been finally convicted of: | ||
(1) any sexual offense, including sexual assault, | ||
aggravated sexual assault, and prohibited sexual conduct; | ||
(2) aggravated assault; | ||
(3) injury to a child, elderly individual, or disabled | ||
individual; or | ||
(4) abandoning or endangering a child. (Tex. Prob. | ||
Code, Secs. 678, 681 (part).) | ||
. A person may not be | ||
appointed guardian if the person: | ||
(1) is a party or is a person whose parent is a party to | ||
a lawsuit concerning or affecting the welfare of the proposed ward, | ||
unless the court: | ||
(A) determines that the lawsuit claim of the | ||
person who has applied to be appointed guardian is not in conflict | ||
with the lawsuit claim of the proposed ward; or | ||
(B) appoints a guardian ad litem to represent the | ||
interests of the proposed ward throughout the litigation of the | ||
ward's lawsuit claim; | ||
(2) is indebted to the proposed ward, unless the | ||
person pays the debt before appointment; or | ||
(3) asserts a claim adverse to the proposed ward or the | ||
proposed ward's property. (Tex. Prob. Code, Sec. 681 (part).) | ||
. A person may | ||
not be appointed guardian if the person is disqualified in a | ||
declaration under Section 1104.202(b). (Tex. Prob. Code, Sec. 681 | ||
(part).) | ||
. A | ||
person may not be appointed guardian if the person does not have the | ||
certification to serve as guardian that is required by Subchapter | ||
F. (Tex. Prob. Code, Sec. 681 (part).) | ||
. A | ||
person may not be appointed guardian if the person is a nonresident | ||
who has failed to file with the court the name of a resident agent to | ||
accept service of process in all actions or proceedings relating to | ||
the guardianship. (Tex. Prob. Code, Sec. 681 (part).) | ||
[Sections 1104.358-1104.400 reserved for expansion] | ||
SUBCHAPTER I. ACCESS TO CRIMINAL HISTORY RECORDS | ||
. In this subchapter, | ||
"department" means the Department of Aging and Disability Services. | ||
(New.) | ||
HISTORY RECORD INFORMATION; AUTHORITY TO CHARGE FEE | ||
provided by Section 1104.403, 1104.404, or 1104.406(a), the clerk | ||
of the county having venue of the proceeding for the appointment of | ||
a guardian shall obtain criminal history record information that is | ||
maintained by the Department of Public Safety or the Federal Bureau | ||
of Investigation identification division relating to: | ||
(1) a private professional guardian; | ||
(2) each person who represents or plans to represent | ||
the interests of a ward as a guardian on behalf of the private | ||
professional guardian; | ||
(3) each person employed by a private professional | ||
guardian who will: | ||
(A) have personal contact with a ward or proposed | ||
ward; | ||
(B) exercise control over and manage a ward's | ||
estate; or | ||
(C) perform any duties with respect to the | ||
management of a ward's estate; | ||
(4) each person employed by or volunteering or | ||
contracting with a guardianship program to provide guardianship | ||
services to a ward of the program on the program's behalf; or | ||
(5) any other person proposed to serve as a guardian | ||
under this title, including a proposed temporary guardian and a | ||
proposed successor guardian, other than the ward's or proposed | ||
ward's family member or an attorney. | ||
(b) The clerk may charge a $10 fee to recover the costs of | ||
obtaining criminal history record information under Subsection | ||
(a). (Tex. Prob. Code, Secs. 698(a), (e).) | ||
INFORMATION BY PROPOSED GUARDIAN | ||
before the date of the hearing to appoint a guardian, a person may | ||
submit to the clerk a copy of the person's criminal history record | ||
information required under Section 1104.402(a)(5) that the person | ||
obtains not earlier than the 30th day before the date of the hearing | ||
from: | ||
(1) the Department of Public Safety; or | ||
(2) the Federal Bureau of Investigation. (Tex. Prob. | ||
Code, Sec. 698(a-5).) | ||
CERTAIN PERSONS HOLDING A CERTIFICATE | ||
Section 1104.402 is not required to obtain criminal history record | ||
information for a person who holds a certificate issued under | ||
Section 111.042, Government Code, or a provisional certificate | ||
issued under Section 111.0421, Government Code, if the Guardianship | ||
Certification Board conducted a criminal history check on the | ||
person before issuing or renewing the certificate. | ||
(b) The board shall provide to the clerk at the court's | ||
request the criminal history record information that was obtained | ||
from the Department of Public Safety or the Federal Bureau of | ||
Investigation. (Tex. Prob. Code, Sec. 698(a-6).) | ||
. (a) | ||
Criminal history record information obtained or provided under | ||
Section 1104.402, 1104.403, or 1104.404 is privileged and | ||
confidential and is for the exclusive use of the court. The | ||
criminal history record information may not be released or | ||
otherwise disclosed to any person or agency except on court order or | ||
consent of the person being investigated. | ||
(b) The county clerk may destroy the criminal history record | ||
information after the information is used for the purposes | ||
authorized by this subchapter. (Tex. Prob. Code, Sec. 698(b).) | ||
RECORD INFORMATION | ||
history record information that is maintained by the Department of | ||
Public Safety or the Federal Bureau of Investigation identification | ||
division relating to each individual who is or will be providing | ||
guardianship services to a ward of or referred by the department, | ||
including: | ||
(1) an employee of or an applicant selected for an | ||
employment position with the department; | ||
(2) a volunteer or an applicant selected to volunteer | ||
with the department; | ||
(3) an employee of or an applicant selected for an | ||
employment position with a business entity or other person who | ||
contracts with the department to provide guardianship services to a | ||
ward referred by the department; and | ||
(4) a volunteer or an applicant selected to volunteer | ||
with a business entity or other person described by Subdivision | ||
(3). | ||
(b) The department must obtain the information in | ||
Subsection (a) before: | ||
(1) making an offer of employment to an applicant for | ||
an employment position; or | ||
(2) a volunteer contacts a ward of or referred by the | ||
department. | ||
(c) The department must annually obtain the information in | ||
Subsection (a) regarding employees or volunteers providing | ||
guardianship services. (Tex. Prob. Code, Secs. 698(a-1), (a-2), | ||
(a-3).) | ||
. The | ||
department shall provide the information obtained under Section | ||
1102.406(a) to: | ||
(1) the clerk of the county having venue of the | ||
guardianship proceeding at the court's request; and | ||
(2) the Guardianship Certification Board at the | ||
board's request. (Tex. Prob. Code, Sec. 698(a-4).) | ||
GUARDIANSHIP CERTIFICATION BOARD | ||
information obtained under Section 1104.407 is privileged and | ||
confidential and is for the exclusive use of the court or | ||
Guardianship Certification Board, as appropriate. The information | ||
may not be released or otherwise disclosed to any person or agency | ||
except: | ||
(1) on court order; | ||
(2) with the consent of the person being investigated; | ||
or | ||
(3) as authorized by Section 1104.404 of this code or | ||
Section 411.1386(a-6), Government Code. | ||
(b) The county clerk or Guardianship Certification Board | ||
may destroy the criminal history record information after the | ||
information is used for the purposes authorized by this subchapter. | ||
(Tex. Prob. Code, Sec. 698(b-1).) | ||
. The court | ||
shall use the information obtained under this subchapter only in | ||
determining whether to: | ||
(1) appoint, remove, or continue the appointment of a | ||
private professional guardian, a guardianship program, or the | ||
department; or | ||
(2) appoint any other person proposed to serve as a | ||
guardian under this title, including a proposed temporary guardian | ||
and a proposed successor guardian, other than the ward's or | ||
proposed ward's family member or an attorney. (Tex. Prob. Code, | ||
Sec. 698(c).) | ||
CERTIFICATION BOARD | ||
by the Guardianship Certification Board under Section 1104.407(2) | ||
may be used for any purpose related to the issuance, denial, | ||
renewal, suspension, or revocation of a certificate issued by the | ||
board. (Tex. Prob. Code, Sec. 698(c-1).) | ||
DISCLOSURE | ||
or discloses any information received under this subchapter without | ||
the authorization prescribed by Section 1104.405 or 1104.408. | ||
(b) An offense under this section is a Class A misdemeanor. | ||
(Tex. Prob. Code, Sec. 698(d).) | ||
AUTHORITY TO OBTAIN OR USE INFORMATION | ||
prohibit the department from obtaining and using criminal history | ||
record information as provided by other law. (Tex. Prob. Code, Sec. 698(f).) | ||
CHAPTER 1105. QUALIFICATION OF GUARDIANS | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Sec. 1105.001. DEFINITIONS | ||
Sec. 1105.002. MANNER OF QUALIFICATION OF GUARDIAN | ||
Sec. 1105.003. PERIOD FOR TAKING OATH AND GIVING BOND | ||
[Sections 1105.004-1105.050 reserved for expansion] | ||
SUBCHAPTER B. OATHS | ||
Sec. 1105.051. OATH OF GUARDIAN | ||
Sec. 1105.052. ADMINISTRATION OF OATH | ||
[Sections 1105.053-1105.100 reserved for expansion] | ||
SUBCHAPTER C. GENERAL PROVISIONS RELATING TO BONDS | ||
Sec. 1105.101. BOND GENERALLY REQUIRED; EXCEPTIONS | ||
Sec. | 1105.102. BOND FOR CERTAIN GUARDIANS OF THE | |
PERSON | ||
Sec. | 1105.103. BOND REQUIRED FROM GUARDIAN OTHERWISE | |
EXEMPT | ||
Sec. 1105.104. BONDS OF JOINT GUARDIANS | ||
Sec. 1105.105. BOND OF MARRIED PERSON | ||
Sec. | 1105.106. BOND OF MARRIED PERSON YOUNGER THAN 18 | |
YEARS OF AGE | ||
Sec. 1105.107. BOND OF GUARDIANSHIP PROGRAM | ||
Sec. | 1105.108. SUBSCRIPTION OF BOND BY PRINCIPALS AND | |
SURETIES | ||
Sec. 1105.109. FORM OF BOND | ||
Sec. 1105.110. FILING OF BOND | ||
Sec. 1105.111. FAILURE TO GIVE BOND | ||
Sec. 1105.112. BOND NOT VOID ON FIRST RECOVERY | ||
[Sections 1105.113-1105.150 reserved for expansion] | ||
SUBCHAPTER D. OTHER PROVISIONS RELATING TO BONDS OF GUARDIANS OF | THE ESTATE | |
THE ESTATE | ||
Sec. 1105.151. GENERAL FORMALITIES | ||
Sec. | 1105.152. GENERAL STANDARD REGARDING AMOUNT OF | |
BOND | ||
Sec. 1105.153. EVIDENTIARY HEARING ON AMOUNT OF BOND | ||
Sec. 1105.154. SPECIFIC BOND AMOUNT | ||
Sec. | 1105.155. AGREEMENT REGARDING DEPOSIT OF ESTATE | |
ASSETS | ||
Sec. | 1105.156. DEPOSIT OF ESTATE ASSETS ON TERMS | |
PRESCRIBED BY COURT | ||
Sec. 1105.157. DEPOSITS OF GUARDIAN | ||
Sec. 1105.158. BOND REQUIRED INSTEAD OF DEPOSITS | ||
Sec. | 1105.159. WITHDRAWAL OF DEPOSITS ON CLOSING OF | |
GUARDIANSHIP | ||
Sec. | 1105.160. AUTHORIZED CORPORATE OR PERSONAL | |
SURETIES | ||
Sec. 1105.161. SURETIES FOR CERTAIN BONDS | ||
Sec. 1105.162. DEPOSITS BY PERSONAL SURETY | ||
Sec. | 1105.163. APPLICABILITY OF SUBCHAPTER TO CERTAIN | |
COURT ORDERS | ||
[Sections 1105.164-1105.200 reserved for expansion] | ||
SUBCHAPTER E. PROVISIONS RELATING TO PERSONAL SURETIES | ||
Sec. 1105.201. AFFIDAVIT OF PERSONAL SURETY | ||
Sec. | 1105.202. LIEN ON REAL PROPERTY OWNED BY PERSONAL | |
SURETY | ||
Sec. | 1105.203. SUBORDINATION OF LIEN ON REAL PROPERTY | |
OWNED BY PERSONAL SURETY | ||
Sec. | 1105.204. RELEASE OF LIEN ON REAL PROPERTY OWNED | |
BY PERSONAL SURETIES | ||
[Sections 1105.205-1105.250 reserved for expansion] | ||
SUBCHAPTER F. NEW BONDS | ||
Sec. 1105.251. GROUNDS FOR REQUIRING NEW BOND | ||
Sec. 1105.252. COURT ORDER OR CITATION ON NEW BOND | ||
Sec. | 1105.253. SHOW CAUSE HEARING ON NEW BOND | |
REQUIREMENT | ||
Sec. 1105.254. EFFECT OF ORDER REQUIRING NEW BOND | ||
Sec. 1105.255. NEW BOND IN DECREASED AMOUNT | ||
Sec. 1105.256. REQUEST BY SURETY FOR NEW BOND | ||
Sec. | 1105.257. DISCHARGE OF FORMER SURETIES ON | |
APPROVAL OF NEW BOND | ||
CHAPTER 1105. QUALIFICATION OF GUARDIANS | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
. In this chapter: | ||
(1) "Bond" means a bond required by this chapter to be | ||
given by a person appointed to serve as a guardian. | ||
(2) "Oath" means an oath required by this chapter to be | ||
taken by a person appointed to serve as a guardian. (New.) | ||
. (a) | ||
Except as provided by Subsection (b), a guardian is considered to | ||
have qualified when the guardian has: | ||
(1) taken and filed the oath 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 required oath. (Tex. Prob. Code, Sec. 699.) | ||
. (a) | ||
Except as provided by Section 1103.003, an oath may be taken and | ||
subscribed 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. (Tex. Prob. Code, Secs. 701 (part), 703(a) (part).) | ||
[Sections 1105.004-1105.050 reserved for expansion] | ||
SUBCHAPTER B. OATHS | ||
. (a) A guardian shall take | ||
an oath to discharge faithfully the duties of guardian for the | ||
person or estate, or both, of a ward. | ||
(b) If the Department of Aging and Disability Services is | ||
appointed guardian, a department representative shall take the oath | ||
required by Subsection (a). (Tex. Prob. Code, Sec. 700.) | ||
. An oath may be taken | ||
before any person authorized to administer oaths under the laws of | ||
this state. (Tex. Prob. Code, Sec. 701 (part).) | ||
[Sections 1105.053-1105.100 reserved for expansion] | ||
SUBCHAPTER C. GENERAL PROVISIONS RELATING TO BONDS | ||
. (a) | ||
Except as provided by this section, a guardian of the person or the | ||
estate of a ward shall give a bond. | ||
(b) A bond is not required if the guardian is: | ||
(1) a corporate fiduciary; or | ||
(2) a guardianship program operated by a county. | ||
(c) The court shall issue letters of guardianship of the | ||
person to a person without the requirement of a bond if: | ||
(1) the person is named to be appointed guardian in a | ||
will made by a surviving parent that is probated by a court in this | ||
state, or in a written declaration made by a surviving parent, and | ||
the will or declaration directs that the guardian serve without a | ||
bond; and | ||
(2) the court finds that the guardian is qualified. | ||
(d) The court may not waive the requirement of bond for the | ||
guardian of the estate of a ward, regardless of whether a surviving | ||
parent's will or written declaration directs the court to waive the | ||
bond. (Tex. Prob. Code, Sec. 702.) | ||
. | ||
(a) This section applies only to a bond required to be posted by a | ||
guardian of the person of a ward when there is no guardian of the | ||
ward's estate. | ||
(b) To ensure the performance of the guardian's duties, a | ||
court may accept only: | ||
(1) a corporate surety bond; | ||
(2) a personal surety bond; | ||
(3) a deposit of money instead of a surety bond; or | ||
(4) a personal bond. | ||
(c) In determining the appropriate type and amount of bond | ||
to set for the guardian, the court shall consider: | ||
(1) the familial relationship of the guardian to the | ||
ward; | ||
(2) the guardian's ties to the community; | ||
(3) the guardian's financial condition; | ||
(4) the guardian's past history of compliance with the | ||
court; and | ||
(5) the reason the guardian may have previously been | ||
denied a corporate surety bond. (Tex. Prob. Code, Sec. 702A.) | ||
EXEMPT | ||
the estate from whom a bond was not required. | ||
(b) A person who has a debt, claim, or demand against the | ||
guardianship, with respect to the justice of which an oath has been | ||
made by the person, the person's agent or attorney, or another | ||
person interested in the guardianship, in person or as the | ||
representative of another person, may file a written complaint | ||
under oath in the court in which the guardian was appointed. | ||
(c) After a complaint is filed under Subsection (b), the | ||
court shall cite the guardian to appear and show cause why the | ||
guardian should not be required to give a bond. | ||
(d) On hearing a complaint filed under Subsection (b), if it | ||
appears to the court that the guardian is wasting, mismanaging, or | ||
misapplying the guardianship estate and that a creditor may | ||
probably lose the creditor's debt, or that a person's interest in | ||
the guardianship may be diminished or lost, the court shall enter an | ||
order requiring the guardian to give a bond not later than the 10th | ||
day after the date of the order. | ||
(e) A bond required under Subsection (d) must be: | ||
(1) in an amount sufficient to protect the | ||
guardianship and the guardianship's creditors; | ||
(2) approved by and payable to the judge; and | ||
(3) conditioned that the guardian: | ||
(A) will well and truly administer the | ||
guardianship; and | ||
(B) will not waste, mismanage, or misapply the | ||
guardianship estate. | ||
(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 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. (Tex. Prob. Code, Secs. 722, 723, 724, 725.) | ||
. If two or more | ||
persons are appointed as guardians and are required to give a bond | ||
by the court or under this title, the court may require: | ||
(1) a separate bond from each person; or | ||
(2) a joint bond from all of the persons. (Tex. Prob. | ||
Code, Sec. 706.) | ||
. (a) A married | ||
person appointed as guardian may jointly execute, with or without, | ||
the person's spouse, a bond required by law. | ||
(b) A bond executed by a married person: | ||
(1) binds the person's separate estate; and | ||
(2) may bind the person's spouse only if the spouse | ||
signs the bond. (Tex. Prob. Code, Sec. 707.) | ||
OF AGE | ||
than 18 years of age, is or has been married, and accepts and | ||
qualifies as guardian is as valid and binding for all purposes as if | ||
the person were of legal age. (Tex. Prob. Code, Sec. 708.) | ||
. The judge may | ||
require a guardianship program appointed guardian under this title | ||
to file one bond that: | ||
(1) meets all the conditions required under this | ||
title; and | ||
(2) is in an amount sufficient to protect all of the | ||
guardianships and the creditors of the guardianships of the wards | ||
receiving services from the guardianship program. (Tex. Prob. | ||
Code, Sec. 708A.) | ||
SURETIES | ||
the principals and sureties. (Tex. Prob. Code, Sec. 705 (part).) | ||
. The following form, or a form | ||
with the same substance, may be used for the bond of a guardian: | ||
"The State of Texas | ||
"County of __________ | ||
"Know all persons by these presents that we, _____ (insert | ||
name of each principal), as principal, and ____ (insert name of each | ||
surety), as sureties, 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 $______; 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 __________ (insert name of ward, stating in each case | ||
whether the person is a minor or 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." | ||
(Tex. Prob. Code, Sec. 704.) | ||
. A bond required under this | ||
title shall be filed with the clerk after the court approves the | ||
bond. (Tex. Prob. Code, Sec. 705 (part).) | ||
. Another person may be | ||
appointed as guardian to replace a guardian who fails to give the | ||
bond required by the court within the period required under this | ||
title. (Tex. Prob. Code, Sec. 721.) | ||
. A | ||
guardian's bond is not void on the first recovery, but the bond may | ||
be sued on and prosecuted from time to time until the entire amount | ||
of the bond is recovered. (Tex. Prob. Code, Sec. 726.) | ||
[Sections 1105.113-1105.150 reserved for expansion] | ||
SUBCHAPTER D. OTHER PROVISIONS RELATING TO BONDS OF GUARDIANS OF | ||
THE ESTATE | ||
. A bond given by a | ||
guardian of the estate must: | ||
(1) be conditioned as required by law; | ||
(2) be payable to the judge or that judge's successors | ||
in office; | ||
(3) have the written approval of the judge in the | ||
judge's official capacity; and | ||
(4) be executed and approved in accordance with this | ||
subchapter. (Tex. Prob. Code, Sec. 703(a) (part).) | ||
. | ||
(a) The judge shall set the amount of a bond for a guardian of an | ||
estate in an amount sufficient to protect the guardianship and the | ||
guardianship's creditors, as provided by this title. | ||
(b) In determining the amount of the bond, the court may not | ||
consider estate assets placed in a management trust under Chapter | ||
1301. (Tex. Prob. Code, Secs. 703(b), (s).) | ||
. | ||
Before setting the amount of a bond required of a guardian of an | ||
estate, the court shall hear evidence and determine: | ||
(1) the amount of cash on hand and where that cash is | ||
deposited; | ||
(2) the amount of cash estimated to be needed for | ||
administrative purposes, including the operation of a business, | ||
factory, farm, or ranch owned by the guardianship estate, and | ||
administrative expenses for one year; | ||
(3) the revenue anticipated to be received in the | ||
succeeding 12 months from dividends, interest, rentals, or use of | ||
property belonging to the guardianship estate and the aggregate | ||
amount of any installments or periodic payments to be collected; | ||
(4) the estimated value of certificates of stock, | ||
bonds, notes, or other securities of the ward, and the name of the | ||
depository in which the stocks, bonds, notes, or other securities | ||
are deposited; | ||
(5) the face value of life insurance or other policies | ||
payable to the ward or the ward's estate; | ||
(6) the estimated value of other personal property | ||
that is owned by the guardianship, or by a person with a disability; | ||
and | ||
(7) the estimated amount of debts due and owing by the | ||
ward. (Tex. Prob. Code, Sec. 703(c).) | ||
. (a) Except as | ||
otherwise provided by this section, the judge shall set the amount | ||
of a bond of a guardian of an estate in an amount equal to the sum | ||
of: | ||
(1) the estimated value of all personal property | ||
belonging to the ward; and | ||
(2) an additional amount to cover revenue anticipated | ||
to be derived during the succeeding 12 months from: | ||
(A) interest and dividends; | ||
(B) collectible claims; | ||
(C) the aggregate amount of any installments or | ||
periodic payments, excluding income derived or to be derived from | ||
federal social security payments; and | ||
(D) rentals for the use of property. | ||
(b) The judge shall reduce the amount of the original bond | ||
under Subsection (a) in proportion to the amount of cash or the | ||
value of securities or other assets: | ||
(1) authorized or required to be deposited by court | ||
order; or | ||
(2) voluntarily deposited by the guardian or the | ||
sureties on the guardian's bond as provided in Sections 1105.156 | ||
and 1105.157(a). | ||
(c) The judge shall set the amount of the bond for a | ||
temporary guardian. (Tex. Prob. Code, Secs. 703(d), (q).) | ||
ASSETS | ||
of the ward, the court may require the guardian of the estate and | ||
the corporate or personal sureties on the guardian's bond to agree | ||
to deposit cash and other assets of the guardianship estate in a | ||
depository described by Subsection (b). If the depository is | ||
otherwise proper, the court may require the deposit to be made in a | ||
manner so as to prevent the withdrawal of the money or other assets | ||
in the guardianship estate without the written consent of the | ||
surety or on court order made after notice to the surety. | ||
(b) Cash and assets must be deposited under this section in | ||
a financial institution as defined by Section 201.101, Finance | ||
Code, that: | ||
(1) has its main office or a branch office in this | ||
state; and | ||
(2) is qualified to act as a depository in this state | ||
under the laws of this state or the United States. | ||
(c) An agreement made by a guardian and the sureties on the | ||
guardian's bond under this section does not release the principal | ||
or sureties from liability, or change the liability of the | ||
principal or sureties, as established by the terms of the bond. | ||
(Tex. Prob. Code, Sec. 703(e).) | ||
BY COURT | ||
to which the ward is entitled may, or if considered by the court to | ||
be in the best interests of the ward, shall, be deposited in one or | ||
more depositories described by this subchapter on terms prescribed | ||
by the court. | ||
(b) The court in which the guardianship proceeding is | ||
pending may authorize or require additional estate assets currently | ||
on hand or that accrue during the pendency of the proceeding to be | ||
deposited as provided by Subsection (a) on: | ||
(1) the court's own motion; or | ||
(2) the written application of the guardian or any | ||
other person interested in the ward. | ||
(c) The amount of the bond required to be given by the | ||
guardian of the estate shall be reduced in proportion to the amount | ||
of the cash or the value of the securities or other assets deposited | ||
under this section. | ||
(d) Cash, securities, or other assets deposited under this | ||
section may be withdrawn wholly or partly from the depository only | ||
in accordance with a court order, and the amount of the guardian's | ||
bond shall be increased in proportion to the amount of the cash or | ||
the value of the securities or other assets authorized to be | ||
withdrawn. (Tex. Prob. Code, Sec. 703(f).) | ||
. (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 a financial institution as | ||
defined by Section 201.101, Finance Code, that has its main office | ||
or a branch office in this state. | ||
(b) If the deposit is otherwise proper, the deposit must be | ||
in an amount or value equal to the amount of the bond required or the | ||
bond shall be reduced by the value of assets that are deposited. | ||
(c) A depository that receives a deposit made under | ||
Subsection (a) shall issue a receipt for the deposit that: | ||
(1) shows the amount of cash deposited or the amount | ||
and description of the securities deposited, as applicable; and | ||
(2) states that the depository agrees to disburse or | ||
deliver the cash or securities only on receipt of a certified copy | ||
of an order of the court in which the proceeding is pending. | ||
(d) A receipt issued by a depository under Subsection (c) | ||
must be attached to the guardian's bond and be delivered to and | ||
filed by the county clerk after the receipt is approved by the | ||
judge. | ||
(e) The amount of cash or securities on deposit may be | ||
increased or decreased, by court order from time to time, as the | ||
interests of the guardianship require. | ||
(f) A deposit of cash or securities made instead of a surety | ||
on the bond may be withdrawn or released only on order of a court | ||
that has jurisdiction. | ||
(g) A creditor has the same rights against a guardian of the | ||
estate and the deposits as are provided for recovery against | ||
sureties on a bond. (Tex. Prob. Code, Secs. 703(g), (h), (i), (j), | ||
(k).) | ||
. (a) The | ||
court may on its own motion or on the written application by the | ||
guardian of an estate or any other person interested in the | ||
guardianship: | ||
(1) require the guardian to give adequate bond instead | ||
of the deposit; or | ||
(2) authorize withdrawal of the deposit and | ||
substitution of a bond with sureties. | ||
(b) Before the 21st day after the date the guardian is | ||
personally served with notice of the filing of the application or | ||
the date the court enters the court's motion, the guardian shall | ||
file a sworn statement showing the condition of the guardianship. | ||
(c) A guardian who fails to comply with Subsection (b) is | ||
subject to removal as in other cases. | ||
(d) The deposit may not be released or withdrawn until the | ||
court: | ||
(1) is satisfied as to the condition of the | ||
guardianship estate; | ||
(2) determines the amount of the bond; and | ||
(3) receives and approves the bond. (Tex. Prob. Code, | ||
Sec. 703(l).) | ||
GUARDIANSHIP | ||
estate, the guardianship, or a surety that remains at the time a | ||
guardianship is closed shall be released by court order and paid to | ||
the person entitled to the assets. | ||
(b) Except as provided by Subsection (c), a writ of | ||
attachment or garnishment does not lie against a deposit described | ||
by Subsection (a). | ||
(c) A writ of attachment or garnishment may lie against a | ||
deposit described by Subsection (a) as to a claim of a creditor of | ||
the guardianship or a person interested in the guardianship, | ||
including a distributee or ward, only to the extent the court has | ||
ordered distribution. (Tex. Prob. Code, Sec. 703(m).) | ||
. | ||
(a) The surety on a bond of a guardian of an estate may be an | ||
authorized corporate or personal surety. | ||
(b) A bond of a guardian of an estate with sureties who are | ||
individuals must have at least two sureties, each of whom must: | ||
(1) execute an affidavit in the manner provided by | ||
Subchapter E; and | ||
(2) own property in this state, excluding property | ||
exempt by law, that the judge is satisfied is sufficient to qualify | ||
the person as a surety as required by law. | ||
(c) A bond with an authorized corporate surety is only | ||
required to have one surety, except as otherwise provided by law. | ||
(Tex. Prob. Code, Secs. 703(n), (p) (part).) | ||
. (a) If the | ||
amount of the bond of a guardian of an estate exceeds $50,000, the | ||
court may require that the bond be signed by: | ||
(1) at least two authorized corporate sureties; or | ||
(2) one corporate surety and at least two good and | ||
sufficient personal sureties. | ||
(b) The guardianship shall pay the cost of a bond with | ||
corporate sureties. (Tex. Prob. Code, Sec. 703(o).) | ||
. Instead of | ||
executing an affidavit under Section 1105.201 or creating a lien | ||
under Section 1105.202 when required, a personal surety may deposit | ||
the surety's own cash or securities in the same manner as a guardian | ||
instead of pledging real property as security, subject to the | ||
provisions governing the deposits if made by a guardian. (Tex. | ||
Prob. Code, Sec. 703(p) (part).) | ||
ORDERS | ||
subchapter relating to the deposit of cash and securities cover the | ||
orders entered by the court when: | ||
(1) property of a guardianship has been authorized to | ||
be sold or rented; | ||
(2) money is borrowed from the guardianship; | ||
(3) real property, or an interest in real property, | ||
has been authorized to be leased for mineral development or made | ||
subject to unitization; | ||
(4) the general bond has been found insufficient; or | ||
(5) money is borrowed or invested on behalf of a ward. | ||
(Tex. Prob. Code, Sec. 703(r).) | ||
[Sections 1105.164-1105.200 reserved for expansion] | ||
SUBCHAPTER E. PROVISIONS RELATING TO PERSONAL SURETIES | ||
. (a) Before a | ||
judge considers a bond with a personal surety, each personal surety | ||
must execute an affidavit stating the amount by which the surety's | ||
assets that are reachable by creditors exceeds the surety's | ||
liabilities. The total of the surety's worth must equal at least | ||
twice the amount of the bond. | ||
(b) Each affidavit must be presented to the judge for | ||
consideration and, if approved, shall be attached to and form part | ||
of the bond. (Tex. Prob. Code, Sec. 709(a).) | ||
SURETY | ||
property of the guardianship that cannot be deposited, as provided | ||
by Subchapter D, is such that personal sureties cannot be accepted | ||
without the creation of a specific lien on the real property owned | ||
by the sureties, the judge shall enter an order requiring each | ||
surety to designate real property that is owned by the surety, | ||
located in this state, and subject to execution. The designated | ||
property must have a value that exceeds all liens and unpaid taxes | ||
by an amount at least equal to the amount of the bond and must have | ||
an adequate legal description, all of which the surety shall | ||
incorporate in an affidavit. Following approval by the judge, the | ||
affidavit shall be attached to and form part of the bond. | ||
(b) A lien arises as security for the performance of the | ||
obligation of the bond only on the real property designated in the | ||
affidavit. | ||
(c) Before letters of guardianship are issued to the | ||
guardian whose bond includes an affidavit under this section, the | ||
court clerk shall mail a statement to the office of the county clerk | ||
of each county in which any real property designated in the | ||
affidavit is located. The statement must be signed by the court | ||
clerk and include: | ||
(1) a sufficient description of the real property; | ||
(2) the names of the principal and sureties on the | ||
bond; | ||
(3) the amount of the bond; | ||
(4) the name of the guardianship; and | ||
(5) the name of the court in which the bond is given. | ||
(d) Each county clerk who receives a statement required by | ||
Subsection (c) shall record the statement in the county deed | ||
records. Each recorded statement shall be indexed in a manner that | ||
permits the convenient determination of the existence and character | ||
of the lien described in the statement. | ||
(e) The recording and indexing required by Subsection (d) is | ||
constructive notice to a person regarding the existence of the lien | ||
on the real property located in the county, effective as of the date | ||
of the indexing. | ||
(f) If each personal surety subject to a court order under | ||
this section does not comply with the order, the judge may require | ||
that the bond be signed by: | ||
(1) an authorized corporate surety; or | ||
(2) an authorized corporate surety and at least two | ||
personal sureties. (Tex. Prob. Code, Secs. 709(b), 710.) | ||
BY PERSONAL SURETY | ||
lien on specific real property under Section 1105.202 who wishes to | ||
lease the real property for mineral development may file a written | ||
application in the court in which the proceeding is pending | ||
requesting subordination of the lien to the proposed lease. | ||
(b) The judge may enter an order granting the application. | ||
(c) A certified copy of an order entered under this section | ||
that is filed and recorded in the deed records of the proper county | ||
is sufficient to subordinate the lien to the rights of a lessee | ||
under the proposed lease. (Tex. Prob. Code, Sec. 709(c).) | ||
PERSONAL SURETIES | ||
under Section 1105.202 may apply to the court to have the lien | ||
released. | ||
(b) The court shall order the lien released if: | ||
(1) the court is satisfied that the bond is sufficient | ||
without the lien; or | ||
(2) sufficient other real or personal property of the | ||
surety is substituted on the same terms required for the lien that | ||
is to be released. | ||
(c) If the personal surety does not offer a lien on other | ||
substituted property under Subsection (b)(2) and the court is not | ||
satisfied that the bond is sufficient without the substitution of | ||
other property, the court shall order the guardian to appear and | ||
give a new bond. | ||
(d) A certified copy of the court's order releasing the lien | ||
and describing the property that was subject to the lien has the | ||
effect of canceling the lien if the order is filed with the county | ||
clerk and recorded in the deed records of the county in which the | ||
property is located. (Tex. Prob. Code, Secs. 719, 720.) | ||
[Sections 1105.205-1105.250 reserved for expansion] | ||
SUBCHAPTER F. NEW BONDS | ||
. (a) A | ||
guardian may be required to give a new bond if: | ||
(1) a surety on a bond dies, removes beyond the limits | ||
of this state, or becomes insolvent; | ||
(2) in the court's opinion: | ||
(A) the sureties on a bond are insufficient; or | ||
(B) a bond is defective; | ||
(3) the amount of a bond is insufficient; | ||
(4) a surety on a bond petitions the court to be | ||
discharged from future liability on the bond; or | ||
(5) a bond and the record of the bond have been lost or | ||
destroyed. | ||
(b) A person interested in the guardianship may have the | ||
guardian cited to appear and show cause why the guardian should not | ||
be required to give a new bond by filing a written application with | ||
the county clerk of the county in which the guardianship proceeding | ||
is pending. The application must allege that: | ||
(1) the bond is insufficient or defective; or | ||
(2) the bond and the record of the bond have been lost | ||
or destroyed. (Tex. Prob. Code, Secs. 711, 712.) | ||
. (a) | ||
When a judge is made aware that a bond is insufficient or that a bond | ||
and the record of the bond have been lost or destroyed, the judge | ||
shall: | ||
(1) without delay and without notice enter an order | ||
requiring the guardian to give a new bond; or | ||
(2) without delay have the guardian cited to show | ||
cause why the guardian should not be required to give a new bond. | ||
(b) An order entered under Subsection (a)(1) must state: | ||
(1) the reasons for requiring a new bond; | ||
(2) the amount of the new bond; and | ||
(3) the period within which the new bond must be given, | ||
which may not expire earlier than the 10th day after the date of the | ||
order. | ||
(c) A guardian who opposes an order entered under Subsection | ||
(a)(1) may demand a hearing on the order. The hearing must be held | ||
before the expiration of the period within which the new bond must | ||
be given. (Tex. Prob. Code, Secs. 713, 714(a).) | ||
. | ||
(a) On the return of a citation ordering a guardian to show cause | ||
why the guardian should not be required to give a new bond, the | ||
judge shall, on the date specified in the return of citation for the | ||
hearing of the matter, inquire into the sufficiency of the reasons | ||
for requiring a new bond. | ||
(b) If the judge is satisfied that a new bond should be | ||
required, the judge shall enter an order requiring a new bond. The | ||
order must state: | ||
(1) the amount of the new bond; and | ||
(2) the period within which the new bond must be given, | ||
which may not expire later than the 20th day after the date of the | ||
order. (Tex. Prob. Code, Sec. 714(b).) | ||
. (a) An | ||
order requiring a guardian to give a new bond has the effect of | ||
suspending the guardian's powers. | ||
(b) After the order is entered, the guardian may not pay out | ||
any of the guardianship's money or take any other official action, | ||
except to preserve the guardianship's property, until the new bond | ||
is given and approved. (Tex. Prob. Code, Sec. 715.) | ||
. (a) A | ||
guardian required to give a bond may at any time file with the clerk | ||
a written application requesting that the court reduce the amount | ||
of the bond. | ||
(b) After the guardian files an application under | ||
Subsection (a), the clerk shall issue and have posted notice to all | ||
persons interested in the estate and to a surety on the bond. The | ||
notice must inform the interested persons and surety of: | ||
(1) the fact that the application has been filed; | ||
(2) the nature of the application; and | ||
(3) the time the judge will hear the application. | ||
(c) The judge may permit the filing of a new bond in a | ||
reduced amount if: | ||
(1) proof is submitted that a bond in an amount less | ||
than the bond in effect will be adequate to meet the requirements of | ||
law and protect the guardianship; and | ||
(2) the judge approves an accounting filed at the time | ||
of the application. (Tex. Prob. Code, Sec. 716.) | ||
. (a) A | ||
surety on a guardian's bond may at any time file with the clerk a | ||
petition requesting that the court in which the proceeding is | ||
pending: | ||
(1) require the guardian to give a new bond; and | ||
(2) discharge the petitioner from all liability for | ||
the future acts of the guardian. | ||
(b) If a petition is filed under Subsection (a), the | ||
guardian shall be cited to appear and give a new bond. (Tex. Prob. | ||
Code, Sec. 718.) | ||
NEW BOND | ||
shall enter an order discharging the sureties on the former bond | ||
from all liability for the future acts of the principal on the bond. (Tex. Prob. Code, Sec. 717.) | ||
CHAPTER 1106. LETTERS OF GUARDIANSHIP | ||
Sec. | 1106.001. ISSUANCE OF CERTIFICATE AS LETTERS OF | |
GUARDIANSHIP | ||
Sec. 1106.002. EXPIRATION OF LETTERS OF GUARDIANSHIP | ||
Sec. 1106.003. RENEWAL OF LETTERS OF GUARDIANSHIP | ||
Sec. | 1106.004. REPLACEMENT AND OTHER ADDITIONAL | |
LETTERS OF GUARDIANSHIP | ||
Sec. 1106.005. EFFECT OF LETTERS OR CERTIFICATE | ||
Sec. | 1106.006. VALIDATION OF CERTAIN LETTERS OF | |
GUARDIANSHIP | ||
CHAPTER 1106. LETTERS OF GUARDIANSHIP | ||
GUARDIANSHIP | ||
qualified under Section 1105.002, the clerk shall issue to the | ||
guardian a certificate under seal stating: | ||
(1) the fact of the appointment and of the | ||
qualification; | ||
(2) the date of the appointment and of the | ||
qualification; and | ||
(3) the date the letters of guardianship expire. | ||
(b) The certificate issued by the clerk under Subsection (a) | ||
constitutes letters of guardianship. (Tex. Prob. Code, Sec. | ||
659(a).) | ||
. | ||
Letters of guardianship expire one year and four months after the | ||
date the letters are issued, unless renewed. (Tex. Prob. Code, Sec. | ||
659(b).) | ||
. (a) The | ||
clerk may not renew letters of guardianship relating to the | ||
appointment of a guardian of the estate until the court receives and | ||
approves the guardian's annual account. | ||
(b) The clerk may not renew letters of guardianship relating | ||
to the appointment of a guardian of the person until the court | ||
receives and approves the guardian's annual report. | ||
(c) If a guardian's annual account or annual report is | ||
disapproved or is not timely filed, the clerk may not issue further | ||
letters of guardianship to the delinquent guardian unless ordered | ||
by the court. | ||
(d) Except as otherwise provided by this subsection, | ||
regardless of the date the court approves an annual account or | ||
annual report for purposes of this section, a renewal of letters of | ||
guardianship relates back to the date the original letters were | ||
issued. If the accounting period has been changed as provided by | ||
this title, a renewal relates back to the first day of the | ||
accounting period. (Tex. Prob. Code, Secs. 659(c), (d).) | ||
GUARDIANSHIP | ||
lost, the clerk shall issue new letters that have the same effect as | ||
the original letters. The clerk shall also issue any number of | ||
letters on request of the person who holds the letters. (Tex. Prob. | ||
Code, Sec. 661.) | ||
. (a) | ||
Letters of guardianship or a certificate issued under Section | ||
1106.001 under seal of the clerk of the court that granted the | ||
letters is sufficient evidence of: | ||
(1) the appointment and qualification of the guardian; | ||
and | ||
(2) the date of qualification. | ||
(b) The court order that appoints the guardian is evidence | ||
of the authority granted to the guardian and of the scope of the | ||
powers and duties that the guardian may exercise only after the date | ||
letters of guardianship or a certificate has been issued under | ||
Section 1106.001. (Tex. Prob. Code, Sec. 660.) | ||
GUARDIANSHIP | ||
1, 1993, that were issued to a nonresident guardian without the | ||
procedure or any part of the procedure provided in this chapter, or | ||
without a notice or citation required of a resident guardian, are | ||
validated as of the letters' dates, to the extent that the absence | ||
of the procedure, notice, or citation is concerned. An otherwise | ||
valid conveyance, mineral lease, or other act of a nonresident | ||
guardian qualified and acting in connection with the letters of | ||
guardianship and under supporting orders of a county or probate | ||
court of this state is validated. | ||
(b) This section does not apply to letters of guardianship, | ||
a conveyance, a lease, or another act of a nonresident guardian | ||
under this section if the absence of the procedure, notice, or | ||
citation involving the letters, conveyance, lease, or other act of | ||
the nonresident guardian is an issue in a lawsuit pending in this | ||
state on September 1, 1993. (Tex. Prob. Code, Sec. 663.) | ||
[Chapters 1107-1150 reserved for expansion] | ||
SUBTITLE E. ADMINISTRATION OF GUARDIANSHIP | ||
CHAPTER 1151. | RIGHTS, POWERS, AND DUTIES UNDER GUARDIANSHIP | |
SUBCHAPTER A. | RIGHTS, POWERS, AND DUTIES IN GENERAL | |
Sec. 1151.001. RIGHTS AND POWERS RETAINED BY WARD | ||
Sec. 1151.002. RIGHTS OF GOOD FAITH PURCHASERS | ||
Sec. | 1151.003. GUARDIAN MAY NOT DISPUTE WARD'S RIGHT | |
TO PROPERTY; EXCEPTION | ||
Sec. | 1151.004. POWERS AND DUTIES OF PERSON SERVING AS | |
GUARDIAN OF BOTH PERSON AND ESTATE | ||
[Sections 1151.005-1151.050 reserved for expansion] | ||
SUBCHAPTER B. POWERS AND DUTIES OF GUARDIANS RELATING TO CARE OF | WARD | |
WARD | ||
Sec. | 1151.051. GENERAL POWERS AND DUTIES OF GUARDIANS | |
OF THE PERSON | ||
Sec. 1151.052. CARE OF ADULT WARD | ||
Sec. 1151.053. COMMITMENT OF WARD | ||
Sec. 1151.054. ADMINISTRATION OF MEDICATION | ||
[Sections 1151.055-1151.100 reserved for expansion] | ||
SUBCHAPTER C. GENERAL POWERS AND DUTIES OF GUARDIANS OF THE ESTATE | ||
Sec. 1151.101. GENERAL POWERS AND DUTIES | ||
Sec. 1151.102. EXERCISE OF AUTHORITY UNDER COURT ORDER | ||
Sec. | 1151.103. EXERCISE OF AUTHORITY WITHOUT COURT | |
ORDER | ||
Sec. 1151.104. AUTHORITY TO COMMENCE SUITS | ||
Sec. 1151.105. ORDINARY DILIGENCE REQUIRED | ||
[Sections 1151.106-1151.150 reserved for expansion] | ||
SUBCHAPTER D. | POSSESSION AND CARE OF WARD'S PROPERTY BY GUARDIAN OF THE ESTATE | |
THE ESTATE | ||
Sec. 1151.151. DUTY OF CARE | ||
Sec. | 1151.152. POSSESSION OF PERSONAL PROPERTY AND | |
RECORDS | ||
Sec. | 1151.153. POSSESSION OF PROPERTY HELD IN COMMON | |
OWNERSHIP | ||
Sec. 1151.154. ADMINISTRATION OF PARTNERSHIP INTEREST | ||
Sec. | 1151.155. OPERATION OR RENTAL OF FARM, RANCH, | |
FACTORY, OR OTHER BUSINESS | ||
[Sections 1151.156-1151.200 reserved for expansion] | ||
SUBCHAPTER E. AUTHORITY OF GUARDIAN TO ENGAGE IN CERTAIN BORROWING | ||
Sec. | 1151.201. MORTGAGE OR PLEDGE OF ESTATE PROPERTY | |
AUTHORIZED IN CERTAIN CIRCUMSTANCES | ||
Sec. 1151.202. APPLICATION; ORDER | ||
Sec. 1151.203. TERM OF LOAN OR RENEWAL | ||
[Sections 1151.204-1151.250 reserved for expansion] | ||
SUBCHAPTER F. GUARDIANS APPOINTED FOR WARD TO RECEIVE GOVERNMENT | FUNDS | |
FUNDS | ||
Sec. | 1151.251. POWERS AND DUTIES OF GUARDIAN APPOINTED | |
GOVERNMENT FUNDS | ||
Sec. | 1151.252. VALIDATION OF CERTAIN PRIOR ACTS OF | |
GUARDIAN | ||
[Sections 1151.253-1151.300 reserved for expansion] | ||
SUBCHAPTER G. NOTICE BY GUARDIAN TO DEPARTMENT OF VETERANS AFFAIRS | ||
Sec. 1151.301. NOTICE OF FILING REQUIRED; HEARING DATE | ||
CHAPTER 1151. RIGHTS, POWERS, AND DUTIES UNDER GUARDIANSHIP | ||
SUBCHAPTER A. RIGHTS, POWERS, AND DUTIES IN GENERAL | ||
. An | ||
incapacitated person for whom a guardian is appointed retains all | ||
legal and civil rights and powers except those designated by court | ||
order as legal disabilities by virtue of having been specifically | ||
granted to the guardian. (Tex. Prob. Code, Sec. 675.) | ||
. (a) This | ||
section applies only to a guardian who has qualified acting as | ||
guardian and in conformity with the law and the guardian's | ||
authority. | ||
(b) A guardian's act is valid for all purposes regarding the | ||
rights of an innocent purchaser of property of the guardianship | ||
estate who purchased the property from the guardian for valuable | ||
consideration, in good faith, and without notice of any illegality | ||
in the title to the property, regardless of whether the guardian's | ||
act or the authority under which the act was performed is | ||
subsequently set aside, annulled, or declared invalid. (Tex. Prob. | ||
Code, Sec. 662.) | ||
PROPERTY; EXCEPTION | ||
administrator, or assignee of a guardian, may not dispute the right | ||
of the ward to any property that came into the guardian's possession | ||
as guardian of the ward, except property: | ||
(1) that is recovered from the guardian; or | ||
(2) on which there is a personal action pending. (Tex. | ||
Prob. Code, Sec. 778.) | ||
GUARDIAN OF BOTH PERSON AND ESTATE | ||
and the estate of a ward has all the rights and powers and shall | ||
perform all the duties of the guardian of the person and the | ||
guardian of the estate. (Tex. Prob. Code, Sec. 769.) | ||
[Sections 1151.005-1151.050 reserved for expansion] | ||
SUBCHAPTER B. POWERS AND DUTIES OF GUARDIANS RELATING TO CARE OF | ||
WARD | ||
THE PERSON | ||
to take charge of the person of the ward. | ||
(b) The duties of the guardian of the person correspond with | ||
the rights of the guardian. | ||
(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; and | ||
(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. | ||
(d) Notwithstanding Subsection (c)(4), a guardian of the | ||
person of a ward has the power to personally transport the ward or | ||
to direct the ward's transport by emergency medical services or | ||
other means to an inpatient mental health facility for a | ||
preliminary examination in accordance with Subchapters A and C, | ||
Chapter 573, Health and Safety Code. (Tex. Prob. Code, Sec. 767.) | ||
. (a) The guardian of an | ||
adult ward may spend funds of the guardianship as provided by court | ||
order to care for and maintain the ward. | ||
(b) The guardian of an adult ward who has decision-making | ||
ability may apply on the ward's behalf for residential care and | ||
services provided by a public or private facility if the ward agrees | ||
to be placed in the facility. The guardian shall report the | ||
condition of the ward to the court at regular intervals at least | ||
annually, unless the court orders more frequent reports. The | ||
guardian shall include in a report of an adult ward who is receiving | ||
residential care in a public or private residential care facility a | ||
statement as to the necessity for continued care in the facility. | ||
(Tex. Prob. Code, Sec. 770(a).) | ||
. (a) Except as provided | ||
by Subsection (b) or (c), a guardian may not voluntarily admit a | ||
ward to a public or private inpatient psychiatric facility operated | ||
by the Department of State Health Services for care and treatment or | ||
to a residential facility operated by the Department of Aging and | ||
Disability Services for care and treatment. If care and treatment | ||
in a psychiatric or residential facility is necessary, the ward or | ||
the ward's guardian may: | ||
(1) apply for services under Section 593.027 or | ||
593.028, Health and Safety Code; | ||
(2) apply to a court to commit the person under | ||
Subtitle C or D, Title 7, Health and Safety Code, or Chapter 462, | ||
Health and Safety Code; or | ||
(3) transport the ward to an inpatient mental health | ||
facility for a preliminary examination in accordance with | ||
Subchapters A and C, Chapter 573, Health and Safety Code. | ||
(b) A guardian of a person younger than 16 years of age may | ||
voluntarily admit an incapacitated person to a public or private | ||
inpatient psychiatric facility for care and treatment. | ||
(c) A guardian of a person may voluntarily admit an | ||
incapacitated person to a residential care facility for emergency | ||
care or respite care under Section 593.027 or 593.028, Health and | ||
Safety Code. (Tex. Prob. Code, Secs. 770(b), (c), (d).) | ||
. (a) In this | ||
section, "psychoactive medication" has the meaning assigned by | ||
Section 574.101, Health and Safety Code. | ||
(b) The guardian of the person of a ward who is not a minor | ||
and who is under a protective custody order as provided by | ||
Subchapter B, Chapter 574, Health and Safety Code, may consent to | ||
the administration of psychoactive medication as prescribed by the | ||
ward's treating physician regardless of the ward's expressed | ||
preferences regarding treatment with psychoactive medication. | ||
(Tex. Prob. Code, Sec. 770A.) | ||
[Sections 1151.055-1151.100 reserved for expansion] | ||
SUBCHAPTER C. GENERAL POWERS AND DUTIES OF GUARDIANS OF THE ESTATE | ||
. (a) Subject to | ||
Subsection (b), the guardian of the estate of a ward is entitled to: | ||
(1) possess and manage all property belonging to the | ||
ward; | ||
(2) collect all debts, rentals, or claims that are due | ||
to the ward; | ||
(3) enforce all obligations in favor of the ward; and | ||
(4) bring and defend suits by or against the ward. | ||
(b) In the management of a ward's estate, the guardian of | ||
the estate is governed by the provisions of this title. (Tex. Prob. | ||
Code, Sec. 768 (part).) | ||
. | ||
(a) The guardian of the estate may renew or extend any obligation | ||
owed by or to the ward on application and if authorized by order. | ||
(b) On written application to the court, a guardian of the | ||
estate may take an action described by Subsection (c) if: | ||
(1) the guardian considers the action in the best | ||
interests of the estate; and | ||
(2) the action is authorized by court order. | ||
(c) A guardian of the estate who complies with Subsection | ||
(b) may: | ||
(1) purchase or exchange property; | ||
(2) take a claim or property for the use and benefit of | ||
the estate in payment of a debt due or owing to the estate; | ||
(3) compound a bad or doubtful debt due or owing to the | ||
estate; | ||
(4) make a compromise or a settlement in relation to | ||
property or a claim in dispute or litigation; | ||
(5) compromise or pay in full any secured claim that | ||
has been allowed and approved as required by law against the estate | ||
by conveying to the holder of the secured claim the real estate or | ||
personal property securing the claim: | ||
(A) in full payment, liquidation, and | ||
satisfaction of the claim; and | ||
(B) in consideration of cancellation of a note, | ||
deed of trust, mortgage, chattel mortgage, or other evidence of a | ||
lien that secures the payment of the claim; | ||
(6) abandon worthless or burdensome property and the | ||
administration of that property; | ||
(7) purchase a prepaid funeral benefits contract; and | ||
(8) 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. | ||
(d) A mortgagee, another secured party, or a trustee may | ||
foreclose on property abandoned under Subsection (c)(6) without | ||
further court order. (Tex. Prob. Code, Sec. 774(a).) | ||
. | ||
(a) The guardian of the estate of a ward may, without application to | ||
or order of the court: | ||
(1) release a lien on payment at maturity of the debt | ||
secured by the lien; | ||
(2) vote stocks by limited or general proxy; | ||
(3) pay calls and assessments; | ||
(4) insure the estate against liability in appropriate | ||
cases; | ||
(5) insure estate property against fire, theft, and | ||
other hazards; and | ||
(6) pay taxes, court costs, and bond premiums. | ||
(b) A guardian of the estate may apply and obtain a court | ||
order if the guardian doubts the propriety of the exercise of any | ||
power listed in Subsection (a). (Tex. Prob. Code, Sec. 774(b).) | ||
. (a) The | ||
guardian of the estate of a ward appointed in this state may | ||
commence a suit for: | ||
(1) the recovery of personal property, debts, or | ||
damages; or | ||
(2) title to or possession of land, any right attached | ||
to or arising from that land, or injury or damage done. | ||
(b) A judgment in a suit described by Subsection (a) is | ||
conclusive, but may be set aside by any person interested for fraud | ||
or collusion on the guardian's part. (Tex. Prob. Code, Sec. 773.) | ||
. (a) If there | ||
is a reasonable prospect of collecting the claims or recovering the | ||
property, the guardian of the estate shall use ordinary diligence | ||
to: | ||
(1) collect all claims and debts due the ward; and | ||
(2) recover possession of all property to which the | ||
ward has claim or title. | ||
(b) If the guardian wilfully neglects to use ordinary | ||
diligence, the guardian and the sureties on the guardian's bond are | ||
liable, on the suit of any person interested in the estate, for the | ||
use of the estate, the amount of the claims, or the value of the | ||
property that has been lost due to the guardian's neglect. (Tex. | ||
Prob. Code, Sec. 772.) | ||
[Sections 1151.106-1151.150 reserved for expansion] | ||
SUBCHAPTER D. POSSESSION AND CARE OF WARD'S PROPERTY BY GUARDIAN OF | ||
THE ESTATE | ||
. (a) The guardian of the | ||
estate shall take care of and manage the estate as a prudent person | ||
would manage the person's own property, except as otherwise | ||
provided by this title. | ||
(b) The guardian of the estate shall account for all rents, | ||
profits, and revenues that the estate would have produced by | ||
prudent management as required by Subsection (a). (Tex. Prob. | ||
Code, Sec. 768 (part).) | ||
. | ||
(a) Immediately after receiving letters of guardianship, the | ||
guardian of the estate shall collect and take possession of the | ||
ward's personal property, record books, title papers, and other | ||
business papers. | ||
(b) The guardian of the estate shall deliver the ward's | ||
personal property, record books, title papers, and other business | ||
papers to a person legally entitled to that property when: | ||
(1) the guardianship has been closed; or | ||
(2) a successor guardian has received letters of | ||
guardianship. (Tex. Prob. Code, Sec. 771.) | ||
OWNERSHIP | ||
a ward's property held or owned in common with a part owner in the | ||
same manner as another owner in common or joint owner is entitled. | ||
(Tex. Prob. Code, Sec. 775.) | ||
. (a) | ||
This section applies only to a general partnership governed by a | ||
partnership agreement or articles of partnership that provide that, | ||
on the incapacity of a partner, the guardian of the estate of the | ||
partner is entitled to the place of the incapacitated partner in the | ||
partnership. | ||
(b) If a ward was a partner in a general partnership, the | ||
guardian who contracts to come into the partnership is, to the | ||
extent allowed by law, liable to a third person only to the extent | ||
of: | ||
(1) the incapacitated partner's capital in the | ||
partnership; and | ||
(2) the assets of the incapacitated partner's estate | ||
that are held by the guardian. | ||
(c) This section does not exonerate a guardian from | ||
liability for the guardian's negligence. (Tex. Prob. Code, Sec. | ||
780.) | ||
OR OTHER BUSINESS | ||
other business that is not required to be immediately sold for the | ||
payment of a debt or other lawful purpose, the guardian of the | ||
estate on order of the court shall, as it appears to be in the | ||
estate's best interests: | ||
(1) continue to operate, or cause the continued | ||
operation of, the farm, ranch, factory, or other business; or | ||
(2) rent the farm, ranch, factory, or other business. | ||
(b) In deciding whether to issue an order under Subsection | ||
(a), the court: | ||
(1) shall consider: | ||
(A) the condition of the estate; and | ||
(B) the necessity that may exist for the future | ||
sale of the property or business for the payment of a debt, claim, | ||
or other lawful expenditure; and | ||
(2) may not extend the time of renting any of the | ||
property beyond what appears consistent with the maintenance and | ||
education of a ward or the settlement of the ward's estate. (Tex. | ||
Prob. Code, Sec. 779.) | ||
[Sections 1151.156-1151.200 reserved for expansion] | ||
SUBCHAPTER E. AUTHORITY OF GUARDIAN TO ENGAGE IN CERTAIN BORROWING | ||
AUTHORIZED IN CERTAIN CIRCUMSTANCES | ||
guardian may mortgage or pledge any property of a guardianship | ||
estate by deed of trust or otherwise as security for an indebtedness | ||
when necessary for: | ||
(1) the payment of any ad valorem, income, gift, or | ||
transfer tax due from a ward, regardless of whether the tax is | ||
assessed by a state, a political subdivision of the state, the | ||
federal government, or a foreign country; | ||
(2) the payment of any expense of administration, | ||
including amounts necessary for the operation of a business, farm, | ||
or ranch owned by the estate; | ||
(3) the payment of any claim allowed and approved, or | ||
established by suit, against the ward or the ward's estate; | ||
(4) the renewal and extension of an existing lien; | ||
(5) an improvement or repair to the ward's real estate | ||
if: | ||
(A) the real estate is not revenue producing but | ||
could be made revenue producing by certain improvements and | ||
repairs; or | ||
(B) the revenue from the real estate could be | ||
increased by making improvements or repairs to the real estate; | ||
(6) the purchase of a residence for the ward or a | ||
dependent of the ward, if the court finds that borrowing money for | ||
that purpose is in the ward's best interests; and | ||
(7) funeral expenses of the ward and expenses of the | ||
ward's last illness, if the guardianship is kept open after the | ||
ward's death. | ||
(b) Under court order, the guardian of the estate may also | ||
receive an extension of credit on the ward's behalf that is wholly | ||
or partly secured by a lien on real property that is the ward's | ||
homestead when necessary to: | ||
(1) make an improvement or repair to the homestead; or | ||
(2) pay for the ward's education or medical expenses. | ||
(c) Proceeds of a home equity loan described by Subsection | ||
(b) may be used only for the purposes authorized under Subsection | ||
(b) and to pay the outstanding balance of the loan. (Tex. Prob. | ||
Code, Secs. 781(a), (a-1), (a-2).) | ||
. (a) The guardian of the | ||
estate must file a sworn application with the court for authority | ||
to: | ||
(1) borrow money for a purpose authorized by Section | ||
1151.201(a) or (b); or | ||
(2) create or extend a lien on estate property as | ||
security. | ||
(b) The application must state fully and in detail the | ||
circumstances that the guardian of the estate believes make the | ||
granting of the authority necessary. | ||
(c) On the filing of an application under Subsection (a), | ||
the clerk shall issue and have posted a citation to all interested | ||
persons stating the nature of the application and requiring the | ||
interested persons to appear and show cause why the application | ||
should not be granted. | ||
(d) If the court is satisfied by the evidence presented at | ||
the hearing on an application filed under Subsection (a) that it is | ||
in the interest of the ward or the ward's estate to borrow money or | ||
to extend and renew an existing lien, the court shall issue an order | ||
to that effect, setting out the terms of the authority granted. | ||
(e) If a new lien is created on guardianship estate | ||
property, the court may require, for the protection of the | ||
guardianship estate and the estate's creditors, that the guardian's | ||
general bond be increased or an additional bond be given, as for the | ||
sale of real property belonging to the estate. (Tex. Prob. Code, | ||
Secs. 781(b), (c) (part).) | ||
. The term of a loan | ||
or renewal authorized under Section 1151.202 must be for the length | ||
of time that the court determines to be in the best interests of the | ||
ward or the ward's estate. (Tex. Prob. Code, Sec. 781(c) (part).) | ||
[Sections 1151.204-1151.250 reserved for expansion] | ||
SUBCHAPTER F. GUARDIANS APPOINTED FOR WARD TO RECEIVE GOVERNMENT | ||
FUNDS | ||
NECESSARY FOR WARD TO RECEIVE GOVERNMENT FUNDS | ||
the person for whom it is necessary to have a guardian appointed to | ||
receive funds from a governmental source may: | ||
(1) administer only: | ||
(A) the funds received from the governmental | ||
source; | ||
(B) all earnings, interest, or profits derived | ||
from the funds; and | ||
(C) all property acquired with the funds; and | ||
(2) receive the funds and pay the expenses of | ||
administering the guardianship and the expenses for the support, | ||
maintenance, or education of the ward or the ward's dependents. | ||
(b) Expenditures under Subsection (a)(2) for the support, | ||
maintenance, or education of the ward or the ward's dependents may | ||
not exceed $12,000 during any 12-month period without the court's | ||
approval. (Tex. Prob. Code, Sec. 782(a).) | ||
GUARDIAN | ||
of the estate of a person for whom it is necessary to have a guardian | ||
appointed to receive and disburse funds that are due the person from | ||
a governmental source is validated if the act was performed in | ||
conformance with an order of a court that has venue with respect to | ||
the support, maintenance, and education of the ward or the ward's | ||
dependents and the investment of surplus funds of the ward under | ||
this title and if the validity of the act was not an issue in a | ||
probate proceeding or civil lawsuit that was pending on September | ||
1, 1993. (Tex. Prob. Code, Sec. 782(b).) | ||
[Sections 1151.253-1151.300 reserved for expansion] | ||
SUBCHAPTER G. NOTICE BY GUARDIAN TO DEPARTMENT OF VETERANS AFFAIRS | ||
. | ||
(a) This section applies only to: | ||
(1) a filing by a guardian whose ward is a beneficiary | ||
of the Department of Veterans Affairs of: | ||
(A) an annual or other account of funds; or | ||
(B) an application for the expenditure or | ||
investment of funds; or | ||
(2) a filing of a claim against the estate of a ward | ||
who is a beneficiary of the Department of Veterans Affairs. | ||
(b) The court shall set a date for a hearing of a matter | ||
initiated by a filing to which this section applies not earlier than | ||
20 days from the date of the filing. | ||
(c) Not later than the fifth day after the date of a filing | ||
to which this section applies, the person who makes the filing shall | ||
give notice of the date of the filing by mailing a certified copy of | ||
the filing to the office of the Department of Veterans Affairs in | ||
whose territory the court is located. | ||
(d) An office of the Department of Veterans Affairs through | ||
its attorney may waive the service of notice or the time required | ||
for setting a hearing under this section. (Tex. Prob. Code, Sec. | ||
636.) | ||
CHAPTER 1152. | GUARDIANSHIP PENDING APPEAL OF APPOINTMENT | |
Sec. | 1152.001. GUARDIAN TO SERVE PENDING APPEAL OF | |
APPOINTMENT | ||
Sec. 1152.002. APPEAL BOND | ||
CHAPTER 1152. GUARDIANSHIP PENDING APPEAL OF APPOINTMENT | ||
APPOINTMENT | ||
appointing a guardian, the appointee shall continue to: | ||
(1) act as guardian; and | ||
(2) prosecute a pending suit in favor of the | ||
guardianship. (Tex. Prob. Code, Sec. 655.) | ||
. (a) Except as provided by | ||
Subsection (b), if a guardian appeals, an appeal bond is not | ||
required. | ||
(b) A guardian must give an appeal bond if the appeal | ||
personally concerns the guardian. (Tex. Prob. Code, Sec. 656.) | ||
CHAPTER 1153. | NOTICE TO CLAIMANTS | |
Sec. | 1153.001. REQUIRED NOTICE REGARDING PRESENTMENT | |
OF CLAIMS IN GENERAL | ||
Sec. 1153.002. PROOF OF PUBLICATION | ||
Sec. 1153.003. REQUIRED NOTICE TO CERTAIN CLAIMANTS | ||
Sec. | 1153.004. PERMISSIVE NOTICE TO UNSECURED CREDITOR | |
CLAIM | ||
Sec. | 1153.005. ONE NOTICE SUFFICIENT; LIABILITY FOR | |
FAILURE TO GIVE REQUIRED NOTICE | ||
CHAPTER 1153. NOTICE TO CLAIMANTS | ||
CLAIMS IN GENERAL | ||
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 printed in the county in | ||
which the letters were issued; and | ||
(2) sent to the comptroller by certified or registered | ||
mail, if the ward remitted or should have remitted taxes | ||
administered by the comptroller. | ||
(b) Notice provided under Subsection (a) must include: | ||
(1) the date the letters of guardianship were issued | ||
to the guardian of the estate; | ||
(2) the address to which a claim may be presented; and | ||
(3) an instruction of the guardian's choice that the | ||
claim be addressed in care of: | ||
(A) the guardian; | ||
(B) the guardian's attorney; or | ||
(C) "Guardian, Estate of ____________" (naming | ||
the estate). | ||
(c) If a newspaper is not printed in the county in which the | ||
letters of guardianship were issued, the notice must be posted and | ||
the return made and filed as otherwise required by this title. (Tex. | ||
Prob. Code, Secs. 783(a), (c).) | ||
. A copy of the | ||
published notice required by Section 1153.001(a)(1), with the | ||
publisher's affidavit, sworn to and subscribed before a proper | ||
officer, to the effect that the notice was published as provided in | ||
this title for the service of citation or notice by publication, | ||
shall be filed in the court in which the cause is pending. (Tex. | ||
Prob. Code, Sec. 783(b).) | ||
. (a) | ||
Within four months after receiving letters of guardianship, the | ||
guardian of an estate shall give notice of the issuance of the | ||
letters to each person who has a claim for money against the ward's | ||
estate: | ||
(1) that is secured by a deed of trust, mortgage, or | ||
vendor's, mechanic's, or other contractor's lien on real estate | ||
belonging to the estate; or | ||
(2) about which the guardian has actual knowledge. | ||
(b) Notice provided under this section must be: | ||
(1) sent by certified or registered mail, return | ||
receipt requested; and | ||
(2) addressed to the record holder of the claim at the | ||
record holder's last known post office address. | ||
(c) The following shall be filed in the court from which the | ||
letters of guardianship were issued: | ||
(1) a copy of each notice required by Subsection | ||
(a)(1) with the return receipt; and | ||
(2) the guardian's affidavit stating: | ||
(A) that the notice was mailed as required by | ||
law; and | ||
(B) the name of the person to whom the notice was | ||
mailed, if that name is not shown on the notice or receipt. (Tex. | ||
Prob. Code, Secs. 784(a), (b), (c), (d).) | ||
REGARDING PERIOD FOR PRESENTMENT OF CLAIM | ||
estate may expressly state in a notice given to an unsecured | ||
creditor under Section 1153.003(a)(2) that the creditor must | ||
present a claim not later than the 120th day after the date the | ||
creditor receives the notice or the claim is barred, if the claim is | ||
not barred by the general statutes of limitation. A statement under | ||
this section must include: | ||
(1) the address to which the claim may be presented; | ||
and | ||
(2) an instruction that the claim be filed with the | ||
clerk of the court that issued the letters of guardianship. (Tex. | ||
Prob. Code, Sec. 784(e).) | ||
TO GIVE REQUIRED NOTICE | ||
required to give a notice required by Section 1153.003 if another | ||
person also appointed as guardian or a former guardian has given | ||
that notice. | ||
(b) If the guardian fails to give a notice required by other | ||
sections of this title or to cause the notice to be given, the | ||
guardian and the sureties on the guardian's bond are liable for any | ||
damage a person suffers because of the neglect, unless it appears | ||
that the person otherwise had notice. (Tex. Prob. Code, Sec. 785.) | ||
CHAPTER 1154. | INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS | |
SUBCHAPTER A. APPRAISERS | ||
Sec. 1154.001. APPOINTMENT OF APPRAISERS | ||
Sec. 1154.002. APPRAISERS' FEES | ||
Sec. 1154.003. FAILURE OR REFUSAL TO ACT BY APPRAISERS | ||
[Sections 1154.004-1154.050 reserved for expansion] | ||
SUBCHAPTER B. REQUIREMENTS FOR INVENTORY, APPRAISEMENT, AND LIST | OF CLAIMS | |
OF CLAIMS | ||
Sec. 1154.051. INVENTORY AND APPRAISEMENT | ||
Sec. 1154.052. LIST OF CLAIMS | ||
Sec. 1154.053. AFFIDAVIT OF GUARDIAN | ||
Sec. 1154.054. APPROVAL OR DISAPPROVAL BY THE COURT | ||
Sec. | 1154.055. FAILURE OF JOINT GUARDIANS TO FILE | |
CLAIMS | ||
[Sections 1154.056-1154.100 reserved for expansion] | ||
SUBCHAPTER C. CHANGES TO INVENTORY, APPRAISEMENT, AND LIST OF | CLAIMS | |
CLAIMS | ||
Sec. | 1154.101. DISCOVERY OF ADDITIONAL PROPERTY OR | |
CLAIMS | ||
Sec. | 1154.102. ADDITIONAL INVENTORY AND APPRAISEMENT | |
OR LIST OF CLAIMS | ||
Sec. | 1154.103. CORRECTION OF INVENTORY, APPRAISEMENT, | |
UNJUST ITEM | ||
Sec. 1154.104. REAPPRAISEMENT | ||
[Sections 1154.105-1154.150 reserved for expansion] | ||
SUBCHAPTER D. USE OF INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS AS | EVIDENCE | |
EVIDENCE | ||
Sec. | 1154.151. USE OF INVENTORY, APPRAISEMENT, AND | |
LIST OF CLAIMS AS EVIDENCE | ||
CHAPTER 1154. INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS | ||
SUBCHAPTER A. APPRAISERS | ||
. (a) After | ||
letters of guardianship of the estate are granted, the court, for | ||
good cause shown, on the court's own motion or the motion of any | ||
interested person, shall appoint at least one but not more than | ||
three disinterested persons who are residents of the county in | ||
which the letters were granted to appraise the ward's property. | ||
(b) If the court makes an appointment under Subsection (a) | ||
and part of the estate is located in a county other than the county | ||
in which the letters were granted, the court, if the court considers | ||
it necessary, may appoint at least one but not more than three | ||
disinterested persons who are residents of the county in which the | ||
relevant part of the estate is located to appraise the estate | ||
property located in that county. (Tex. Prob. Code, Sec. 727.) | ||
. An appraiser appointed by | ||
the court is entitled to receive a reasonable fee, payable out of | ||
the estate, for the performance of the appraiser's duties as an | ||
appraiser. (Tex. Prob. Code, Sec. 732.) | ||
. If | ||
an appraiser appointed under Section 1154.001 fails or refuses to | ||
act, the court shall remove the appraiser and appoint one or more | ||
appraisers. (Tex. Prob. Code, Sec. 728.) | ||
[Sections 1154.004-1154.050 reserved for expansion] | ||
SUBCHAPTER B. REQUIREMENTS FOR INVENTORY, APPRAISEMENT, AND LIST | ||
OF CLAIMS | ||
. (a) Not later | ||
than the 30th day after the date the guardian of the estate | ||
qualifies, unless a longer period is granted by the court, the | ||
guardian shall file with the court clerk a single written | ||
instrument that contains a verified, full, and detailed inventory | ||
of all the ward's property that has come into the guardian's | ||
possession or of which the guardian has knowledge. The inventory | ||
must: | ||
(1) include: | ||
(A) all the ward's real property located in this | ||
state; and | ||
(B) all the ward's personal property regardless | ||
of where the property is located; and | ||
(2) specify: | ||
(A) which portion of the property is separate | ||
property and which is community property; and | ||
(B) if the property is owned in common with other | ||
persons, the ward's interest in that property and the names and | ||
relationship, if known, of the co-owners. | ||
(b) The guardian shall: | ||
(1) set out in the inventory the guardian's | ||
appraisement of the fair market value of each item in the inventory | ||
on the date of the grant of letters of guardianship; or | ||
(2) if the court has appointed an appraiser for the | ||
estate: | ||
(A) determine the fair market value of each item | ||
in the inventory with the assistance of the appraiser; and | ||
(B) set out in the inventory the appraisement | ||
made by the appraiser. | ||
(c) The court for good cause shown may require the guardian | ||
to file the inventory and appraisement not later than the 30th day | ||
after the date of qualification of the guardian. | ||
(d) The inventory, when approved by the court and filed with | ||
the court clerk, is for all purposes the inventory and appraisement | ||
of the estate referred to in this title. (Tex. Prob. Code, Sec. | ||
729.) | ||
. The guardian of the estate | ||
shall make and attach to the inventory and appraisement required by | ||
Section 1154.051 a complete list of claims due or owing to the ward. | ||
The list of claims must state: | ||
(1) the name and, if known, address of each person | ||
indebted to the ward; and | ||
(2) regarding each claim: | ||
(A) the nature of the debt, whether it is a note, | ||
bill, bond, or other written obligation, or whether it is an account | ||
or verbal contract; | ||
(B) the date the debt was incurred; | ||
(C) the date the debt was or is due; | ||
(D) the amount of the claim, the rate of interest | ||
on the claim, and the period for which the claim bears interest; and | ||
(E) if any portion of the claim is held in common | ||
with others, the interest of the estate in the claim and the names | ||
and relationships of the other part owners. (Tex. Prob. Code, Sec. | ||
730.) | ||
. The guardian of the | ||
estate shall attach to the inventory, appraisement, and list of | ||
claims the guardian's affidavit, subscribed and sworn to before an | ||
officer in the county authorized by law to administer oaths, that | ||
the inventory, appraisement, and list of claims are a true and | ||
complete statement of the property and claims of the estate of which | ||
the guardian has knowledge. (Tex. Prob. Code, Sec. 731.) | ||
. (a) | ||
On the filing of the inventory, appraisement, and list of claims | ||
with the court clerk, the judge shall examine and approve or | ||
disapprove the inventory, appraisement, and list of claims. | ||
(b) If the judge approves the inventory, appraisement, and | ||
list of claims, the judge shall enter an order to that effect. | ||
(c) If the judge does not approve the inventory, | ||
appraisement, or list of claims, the judge: | ||
(1) shall enter an order to that effect requiring the | ||
filing of another inventory, appraisement, or list of claims, | ||
whichever is not approved, within a period specified in the order | ||
not to exceed 20 days after the date the order is entered; and | ||
(2) may, if considered necessary, appoint new | ||
appraisers. (Tex. Prob. Code, Sec. 733.) | ||
INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS | ||
guardian of the estate qualifies to serve, any one or more of the | ||
guardians, on the neglect of the other guardians, may make and file | ||
an inventory, appraisement, and list of claims. | ||
(b) A guardian who neglects to make or file an inventory, | ||
appraisement, and list of claims may not interfere with and does not | ||
have any power over the estate after another guardian makes and | ||
files an inventory, appraisement, and list of claims. | ||
(c) The guardian who files the inventory, appraisement, and | ||
list of claims is entitled to the whole administration unless, not | ||
later than the 60th day after the date the guardian files the | ||
inventory, appraisement, and list of claims, each of the delinquent | ||
guardians files with the court a written, sworn, and reasonable | ||
excuse that the court considers satisfactory. The court shall | ||
enter an order removing one or more delinquent guardians and | ||
revoking those guardians' letters if: | ||
(1) an excuse is not filed; or | ||
(2) the court does not consider the filed excuse | ||
sufficient. (Tex. Prob. Code, Sec. 738.) | ||
[Sections 1154.056-1154.100 reserved for expansion] | ||
SUBCHAPTER C. CHANGES TO INVENTORY, APPRAISEMENT, AND LIST OF | ||
CLAIMS | ||
. | ||
If after the filing of the inventory, appraisement, and list of | ||
claims the guardian of the estate acquires possession or knowledge | ||
of property or claims of the estate not included in the inventory, | ||
appraisement, and list of claims, the guardian shall promptly file | ||
with the court clerk a verified, full, and detailed supplemental | ||
inventory, appraisement, and list of claims. (Tex. Prob. Code, | ||
Sec. 734.) | ||
LIST OF CLAIMS | ||
person that property or claims of the estate have not been included | ||
in the filed inventory, appraisement, and list of claims, the | ||
guardian of the estate shall be cited to appear before the court in | ||
which the cause is pending and show cause why the guardian should | ||
not be required to make and file an additional inventory and | ||
appraisement or list of claims, or both. | ||
(b) After hearing the complaint, if the court is satisfied | ||
of the truth of the complaint, the court shall enter an order | ||
requiring the guardian to make and file an additional inventory and | ||
appraisement or list of claims, or both. The additional inventory | ||
and appraisement or list of claims: | ||
(1) must be made and filed in the same manner as the | ||
original inventory and appraisement or list of claims within the | ||
period prescribed by the court, not to exceed 20 days after the date | ||
of the order; and | ||
(2) may include only property or claims not previously | ||
included in the inventory and appraisement or list of claims. (Tex. | ||
Prob. Code, Sec. 735.) | ||
LIST OF CLAIMS FOR ERRONEOUS OR UNJUST ITEM | ||
interested in an estate who considers an inventory, appraisement, | ||
or list of claims filed by the guardian of the estate to be | ||
erroneous or unjust in any particular form may: | ||
(1) file a written complaint setting forth the alleged | ||
erroneous or unjust item; and | ||
(2) have the guardian cited to appear before the court | ||
and show cause why the item should not be corrected. | ||
(b) On the hearing of the complaint, if the court is | ||
satisfied from the evidence that the inventory, appraisement, or | ||
list of claims is erroneous or unjust as alleged in the complaint, | ||
the court shall enter an order: | ||
(1) specifying the erroneous or unjust item and the | ||
corrections to be made; and | ||
(2) appointing an appraiser to make a new appraisement | ||
correcting the erroneous or unjust item and requiring the filing of | ||
the new appraisement not later than the 20th day after the date of | ||
the order. | ||
(c) The court, on the court's own motion or a motion of the | ||
guardian of the estate, may also have a new appraisement made for | ||
the purposes described by this section. (Tex. Prob. Code, Sec. | ||
736.) | ||
. (a) A reappraisement made, | ||
filed, and approved by the court replaces the original | ||
appraisement. Not more than one reappraisement may be made. | ||
(b) Notwithstanding Subsection (a), a person interested in | ||
an estate may object to a reappraisement regardless of whether the | ||
court has approved the reappraisement. If the court finds that the | ||
reappraisement is erroneous or unjust, the court shall appraise the | ||
property on the basis of the evidence before the court. (Tex. Prob. | ||
Code, Sec. 737.) | ||
[Sections 1154.105-1154.150 reserved for expansion] | ||
SUBCHAPTER D. USE OF INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS AS | ||
EVIDENCE | ||
CLAIMS AS EVIDENCE | ||
claims that has been made, filed, and approved in accordance with | ||
law; the record of the inventory, appraisement, and list of claims; | ||
or a copy of an original or the record that has been certified under | ||
the seal of the county court affixed by the clerk: | ||
(1) may be given in evidence in any court of this state | ||
in any suit by or against the guardian of the estate; and | ||
(2) is not conclusive for or against the guardian of | ||
the estate if it is shown that: | ||
(A) any property or claim of the estate is not | ||
shown in the inventory, appraisement, or list of claims; or | ||
(B) the value of the property or claim of the | ||
estate exceeded the value shown in the appraisement or list of | ||
claims. (Tex. Prob. Code, Sec. 739.) | ||
CHAPTER 1155. | COMPENSATION, EXPENSES, AND COURT COSTS | |
SUBCHAPTER A. | COMPENSATION OF GUARDIANS IN GENERAL | |
Sec. 1155.001. DEFINITIONS | ||
Sec. | 1155.002. COMPENSATION FOR CERTAIN GUARDIANS OF | |
THE PERSON | ||
Sec. 1155.003. COMPENSATION FOR GUARDIAN OF THE ESTATE | ||
Sec. | 1155.004. CONSIDERATIONS IN AUTHORIZING | |
COMPENSATION | ||
Sec. 1155.005. MAXIMUM AGGREGATE COMPENSATION | ||
Sec. | 1155.006. MODIFICATION OF UNREASONABLY LOW | |
COMPENSATION | ||
Sec. | 1155.007. REDUCTION OR ELIMINATION OF ESTIMATED | |
QUARTERLY COMPENSATION | ||
Sec. 1155.008. DENIAL OF COMPENSATION | ||
[Sections 1155.009-1155.050 reserved for expansion] | ||
SUBCHAPTER B. | COMPENSATION FOR PROFESSIONAL SERVICES | |
Sec. | 1155.051. COMPENSATION FOR PROFESSIONAL SERVICES | |
IN GENERAL | ||
Sec. | 1155.052. ATTORNEY SERVING AS GUARDIAN AND | |
PROVIDING RELATED LEGAL SERVICES | ||
Sec. | 1155.053. COMPENSATION FOR SERVICES TO RECOVER | |
PROPERTY | ||
[Sections 1155.054-1155.100 reserved for expansion] | ||
SUBCHAPTER C. | EXPENSES | |
Sec. 1155.101. REIMBURSEMENT OF EXPENSES IN GENERAL | ||
Sec. | 1155.102. REIMBURSEMENT OF EXPENSES FOR | |
COLLECTION OF CLAIM OR DEBT | ||
Sec. 1155.103. EXPENSE CHARGES: REQUIREMENTS | ||
[Sections 1155.104-1155.150 reserved for expansion] | ||
SUBCHAPTER D. | COSTS IN GENERAL | |
Sec. | 1155.151. COST OF PROCEEDING IN GUARDIANSHIP | |
MATTER | ||
Sec. 1155.152. CERTAIN COSTS ADJUDGED AGAINST GUARDIAN | ||
[Sections 1155.153-1155.200 reserved for expansion] | ||
SUBCHAPTER E. COMPENSATION AND COSTS IN GUARDIANSHIPS FOR CERTAIN | MEDICAL ASSISTANCE RECIPIENTS | |
MEDICAL ASSISTANCE RECIPIENTS | ||
Sec. 1155.201. DEFINITIONS | ||
Sec. | 1155.202. COMPENSATION AND COSTS PAYABLE UNDER | |
MEDICAL ASSISTANCE PROGRAM | ||
CHAPTER 1155. COMPENSATION, EXPENSES, AND COURT COSTS | ||
SUBCHAPTER A. COMPENSATION OF GUARDIANS IN GENERAL | ||
. In this subchapter: | ||
(1) "Gross income" does not include United States | ||
Department of Veterans Affairs or social security benefits received | ||
by a ward. | ||
(2) "Money paid out" does not include any money | ||
loaned, invested, or paid over on the settlement of a guardianship | ||
or a tax-motivated gift made by a ward. (Tex. Prob. Code, Sec. | ||
665(h).) | ||
PERSON | ||
serving as a guardian of the person alone from available funds of | ||
the ward's estate or other funds available for that purpose. The | ||
court may set the compensation in an amount not to exceed five | ||
percent of the ward's gross income. | ||
(b) If the ward's estate is insufficient to pay for the | ||
services of a private professional guardian or a licensed attorney | ||
serving as a guardian of the person, the court may authorize | ||
compensation for that guardian if funds in the county treasury are | ||
budgeted for that purpose. (Tex. Prob. Code, Secs. 665(a), (g).) | ||
. | ||
(a) The guardian of an estate is entitled to reasonable | ||
compensation on application to the court at the time the court | ||
approves an annual or final accounting filed by the guardian under | ||
this title. | ||
(b) A fee of five percent of the gross income of the ward's | ||
estate and five percent of all money paid out of the estate, subject | ||
to the award of an additional amount under Section 1155.006(a) | ||
following a review under Section 1155.006(a)(1), is considered | ||
reasonable under this section if the court finds that the guardian | ||
has taken care of and managed the estate in compliance with the | ||
standards of this title. (Tex. Prob. Code, Sec. 665(b).) | ||
. | ||
In determining whether to authorize compensation for a guardian | ||
under this subchapter, the court shall consider: | ||
(1) the ward's monthly income from all sources; and | ||
(2) whether the ward receives medical assistance under | ||
the state Medicaid program. (Tex. Prob. Code, Sec. 665(a-1).) | ||
. Except as | ||
provided by Section 1155.006(a) for a fee the court determines is | ||
unreasonably low, the aggregate fee of the guardian of the person | ||
and guardian of the estate may not exceed an amount equal to five | ||
percent of the gross income of the ward's estate plus five percent | ||
of all money paid out of the estate. (Tex. Prob. Code, Sec. | ||
665(f).) | ||
COMPENSATION; AUTHORIZATION FOR PAYMENT OF ESTIMATED QUARTERLY | ||
COMPENSATION | ||
court's own motion, the court may: | ||
(1) review and modify the amount of compensation | ||
authorized under Section 1155.002(a) or 1155.003 if the court finds | ||
that the amount is unreasonably low when considering the services | ||
provided as guardian; and | ||
(2) authorize compensation for the guardian in an | ||
estimated amount the court finds reasonable, to be paid on a | ||
quarterly basis before the guardian files an annual or final | ||
accounting, if the court finds that delaying the payment of | ||
compensation until the guardian files an accounting would create a | ||
hardship for the guardian. | ||
(b) A finding of unreasonably low compensation may not be | ||
established under Subsection (a) solely because the amount of | ||
compensation is less than the usual and customary charges of the | ||
person or entity serving as guardian. (Tex. Prob. Code, Secs. | ||
665(c), (d) (part).) | ||
QUARTERLY COMPENSATION | ||
estimated quarterly compensation under Section 1155.006(a) may | ||
later reduce or eliminate the guardian's compensation if, on review | ||
of an annual or final accounting or otherwise, the court finds that | ||
the guardian: | ||
(1) received compensation in excess of the amount | ||
permitted under this subchapter; | ||
(2) has not adequately performed the duties required | ||
of a guardian under this title; or | ||
(3) has been removed for cause. | ||
(b) If a court reduces or eliminates a guardian's | ||
compensation as provided by Subsection (a), the guardian and the | ||
surety on the guardian's bond are liable to the guardianship estate | ||
for any excess compensation received. (Tex. Prob. Code, Secs. | ||
665(d) (part), (d-1).) | ||
. On application of | ||
an interested person or on the court's own motion, the court may | ||
wholly or partly deny a fee authorized under this subchapter if: | ||
(1) the court finds that the guardian has not | ||
adequately performed the duties required of a guardian under this | ||
title; or | ||
(2) the guardian has been removed for cause. (Tex. | ||
Prob. Code, Sec. 665(e).) | ||
[Sections 1155.009-1155.050 reserved for expansion] | ||
SUBCHAPTER B. COMPENSATION FOR PROFESSIONAL SERVICES | ||
GENERAL | ||
court as compensation to any attorneys, mental health | ||
professionals, and interpreters appointed under this title to be | ||
taxed as costs in the case. | ||
(b) If after examining a proposed ward's assets the court | ||
determines the proposed ward is unable to pay for services provided | ||
by an attorney, a mental health professional, or an interpreter | ||
appointed under this title, as applicable, the county is | ||
responsible for the cost of those services. (Tex. Prob. Code, Sec. | ||
665A.) | ||
RELATED LEGAL SERVICES | ||
of this chapter or Section 665B, an attorney who serves as guardian | ||
and who also 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. | ||
(b) An attorney described by Subsection (a) is not entitled | ||
to payment of attorney's fees for guardianship services that are | ||
not 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 1155.051, | ||
1155.101, and 665B. (Tex. Prob. Code, Sec. 665D.) | ||
PROPERTY | ||
the estate is being administered and except as provided by | ||
Subsection (b), a guardian of an estate may convey or contract to | ||
convey a contingent interest in any property sought to be | ||
recovered, not to exceed one-third of the property for services of | ||
attorneys. | ||
(b) A guardian of an estate may convey or contract to convey | ||
for services of attorneys a contingent interest that exceeds | ||
one-third of the property sought to be recovered under this section | ||
only on the approval of the court in which the estate is being | ||
administered. The court must approve a contract entered into or | ||
conveyance made under this section before an attorney performs any | ||
legal services. A contract entered into or conveyance made in | ||
violation of this section is void unless the court ratifies or | ||
reforms the contract or documents relating to the conveyance to the | ||
extent necessary to cause the contract or conveyance to meet the | ||
requirements of this section. | ||
(c) In approving a contract or conveyance under Subsection | ||
(a) or (b) for services of an attorney, the court shall consider: | ||
(1) the time and labor that will be required, the | ||
novelty and difficulty of the questions to be involved, and the | ||
skill that will be required to perform the legal services properly; | ||
(2) the fee customarily charged in the locality for | ||
similar legal services; | ||
(3) the value of property recovered or sought to be | ||
recovered by the guardian under this section; | ||
(4) the benefits to the estate that the attorney will | ||
be responsible for securing; and | ||
(5) the experience and ability of the attorney who | ||
will be performing the services. (Tex. Prob. Code, Secs. 665C(a), | ||
(b), (c).) | ||
[Sections 1155.054-1155.100 reserved for expansion] | ||
SUBCHAPTER C. EXPENSES | ||
. A | ||
guardian is entitled to reimbursement from the guardianship estate | ||
for all necessary and reasonable expenses incurred in performing | ||
any duty as a guardian, including reimbursement for the payment of | ||
reasonable attorney's fees necessarily incurred by the guardian in | ||
connection with the management of the estate or any other | ||
guardianship matter. (Tex. Prob. Code, Sec. 666.) | ||
CLAIM OR DEBT | ||
estate is entitled to all necessary and reasonable expenses | ||
incurred by the guardian in collecting or attempting to collect a | ||
claim or debt owed to the estate or in recovering or attempting to | ||
recover property to which the estate has title or a claim. (Tex. | ||
Prob. Code, Sec. 665C(d).) | ||
. All expense | ||
charges shall be: | ||
(1) in writing, showing specifically each item of | ||
expense and the date of the expense; | ||
(2) verified by affidavit of the guardian; | ||
(3) filed with the clerk; and | ||
(4) paid only if the payment is authorized by court | ||
order. (Tex. Prob. Code, Sec. 667.) | ||
[Sections 1155.104-1155.150 reserved for expansion] | ||
SUBCHAPTER D. COSTS IN GENERAL | ||
. | ||
(a) Except as provided by Subsection (b), the cost of the proceeding | ||
in a guardianship matter, including the cost of the guardian ad | ||
litem or court visitor, shall be paid out of the guardianship | ||
estate, or the cost of the proceeding shall be paid out of the | ||
county treasury if the estate is insufficient to pay the cost, and | ||
the court shall issue the judgment accordingly. | ||
(b) An applicant for the appointment of a guardian under | ||
this title shall pay the cost of the proceeding if the court denies | ||
the application based on the recommendation of a court | ||
investigator. (Tex. Prob. Code, Sec. 669.) | ||
. If | ||
costs are incurred because a guardian neglects to perform a | ||
required duty or is removed for cause, the guardian and the sureties | ||
on the guardian's bond are liable for: | ||
(1) any costs of removal and other additional costs | ||
incurred that are not expenditures authorized under this title; and | ||
(2) reasonable attorney's fees incurred in: | ||
(A) removing the guardian; or | ||
(B) obtaining compliance regarding any statutory | ||
duty the guardian has neglected. (Tex. Prob. Code, Sec. 668.) | ||
[Sections 1155.153-1155.200 reserved for expansion] | ||
SUBCHAPTER E. COMPENSATION AND COSTS IN GUARDIANSHIPS FOR CERTAIN | ||
MEDICAL ASSISTANCE RECIPIENTS | ||
. In this subchapter: | ||
(1) "Applied income" means the portion of the earned | ||
and unearned income of a recipient of medical assistance, or if | ||
applicable the recipient and the recipient's spouse, that is paid | ||
under the medical assistance program to a nursing home in which the | ||
recipient resides. | ||
(2) "Medical assistance" has the meaning assigned by | ||
Section 32.003, Human Resources Code. (Tex. Prob. Code, Sec. | ||
670(a).) | ||
ASSISTANCE PROGRAM | ||
this title and to the extent permitted by federal law, a court that | ||
appoints a guardian for a recipient of medical assistance who has | ||
applied income may order the following to be paid under the medical | ||
assistance program: | ||
(1) compensation to the guardian in an amount not to | ||
exceed $175 per month; | ||
(2) costs directly related to establishing or | ||
terminating the guardianship, not to exceed $1,000 except as | ||
provided by Subsection (b); and | ||
(3) other administrative costs related to the | ||
guardianship, not to exceed $1,000 during any three-year period. | ||
(b) Costs ordered to be paid under Subsection (a)(2) may | ||
include compensation and expenses for an attorney ad litem or | ||
guardian ad litem and reasonable attorney's fees for an attorney | ||
representing the guardian. The costs ordered to be paid may exceed | ||
$1,000 if the costs in excess of that amount are supported by | ||
documentation acceptable to the court and the costs are approved by | ||
the court. (Tex. Prob. Code, Secs. 670(b), (c).) | ||
CHAPTER 1156. | EDUCATION AND MAINTENANCE ALLOWANCES PAID FROM WARD'S ESTATE | |
WARD'S ESTATE | ||
SUBCHAPTER A. | ALLOWANCES FOR WARD | |
Sec. 1156.001. APPLICATION FOR ALLOWANCE | ||
Sec. 1156.002. COURT DETERMINATION OF ALLOWANCE AMOUNT | ||
Sec. 1156.003. COURT ORDER SETTING ALLOWANCE | ||
Sec. 1156.004. EXPENDITURES EXCEEDING ALLOWANCE | ||
[Sections 1156.005-1156.050 reserved for expansion] | ||
SUBCHAPTER B. | ALLOWANCES FOR WARD'S FAMILY | |
Sec. | 1156.051. CERTAIN ALLOWANCES PROHIBITED WHEN | |
PARENT IS GUARDIAN OF MINOR WARD | ||
Sec. | 1156.052. ALLOWANCE FOR WARD'S SPOUSE OR | |
DEPENDENT | ||
CHAPTER 1156. EDUCATION AND MAINTENANCE ALLOWANCES PAID FROM | ||
WARD'S ESTATE | ||
SUBCHAPTER A. ALLOWANCES FOR WARD | ||
. (a) Subject to | ||
Section 1156.051, if a monthly allowance for a ward was not ordered | ||
in the court's order appointing a guardian, the guardian of the | ||
estate of the ward shall file with the court an application | ||
requesting a monthly allowance to be spent from the income and | ||
corpus of the ward's estate for: | ||
(1) the education and maintenance of the ward; and | ||
(2) the maintenance of the ward's property. | ||
(b) The guardian must file the application not later than | ||
the 30th day after the date the guardian qualifies as guardian or | ||
the date specified by the court, whichever is later. | ||
(c) The application must clearly separate amounts requested | ||
for the ward's education and maintenance from amounts requested for | ||
maintenance of the ward's property. (Tex. Prob. Code, Secs. 776(a), | ||
(a-1).) | ||
. In | ||
determining the amount of the monthly allowance for the ward and the | ||
ward's property, the court shall consider the condition of the | ||
estate and the income and corpus of the estate necessary to pay the | ||
reasonably anticipated regular education and maintenance expenses | ||
of the ward and maintenance expenses of the ward's property. (Tex. | ||
Prob. Code, Sec. 776(a-2) (part).) | ||
. (a) The | ||
court's order setting a monthly allowance must specify the types of | ||
expenditures the guardian may make on a monthly basis for the ward | ||
or the ward's property. | ||
(b) If different persons have the guardianship of the person | ||
and of the estate of a ward, the court's order setting a monthly | ||
allowance must specify: | ||
(1) the amount, if any, set by the court for the ward's | ||
education and maintenance that the guardian of the estate shall | ||
pay; and | ||
(2) the amount, if any, that the guardian of the estate | ||
shall pay to the guardian of the person, at a time specified by the | ||
court, for the ward's education and maintenance. | ||
(c) If the guardian of the estate fails to pay to the | ||
guardian of the person the monthly allowance set by the court, the | ||
guardian of the estate shall be compelled by court order to make the | ||
payment after the guardian is cited to appear. | ||
(d) An order setting a monthly allowance does not affect the | ||
guardian's duty to account for expenditures of the allowance in the | ||
annual account required by Subchapter A, Chapter 1163. (Tex. Prob. | ||
Code, Secs. 776(a-2) (part), (a-3).) | ||
. If a | ||
guardian in good faith has spent money from the income and corpus of | ||
the estate of the ward for the ward's support and maintenance and | ||
the expenditures exceed the monthly allowance authorized by the | ||
court, the guardian shall file a motion with the court requesting | ||
approval of the expenditures. The court may approve the excess | ||
expenditures if: | ||
(1) the expenditures were made when it was not | ||
convenient or possible for the guardian to first secure court | ||
approval; | ||
(2) the proof is clear and convincing that the | ||
expenditures were reasonable and proper; | ||
(3) the court would have granted authority in advance | ||
to make the expenditures; and | ||
(4) the ward received the benefits of the | ||
expenditures. (Tex. Prob. Code, Sec. 776(b).) | ||
[Sections 1156.005-1156.050 reserved for expansion] | ||
SUBCHAPTER B. ALLOWANCES FOR WARD'S FAMILY | ||
GUARDIAN OF MINOR WARD | ||
parent who is the guardian of the person of a ward who is 17 years of | ||
age or younger may not use the income or the corpus from the ward's | ||
estate for the ward's support, education, or maintenance. | ||
(b) A court with proper jurisdiction may authorize the | ||
guardian of the person to spend the income or the corpus from the | ||
ward's estate to support, educate, or maintain the ward if the | ||
guardian presents to the court clear and convincing evidence that | ||
the ward's parents are unable without unreasonable hardship to pay | ||
for all of the expenses related to the ward's support. (Tex. Prob. | ||
Code, Sec. 777.) | ||
. | ||
(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 or dependent. | ||
(b) In determining whether to order the expenditure of money | ||
from a ward's estate for the ward's spouse or dependent, as | ||
appropriate, under this section, the court shall consider: | ||
(1) the circumstances of the ward, the ward's spouse, | ||
and the ward's dependents; | ||
(2) the ability and duty of the ward's spouse to | ||
support himself or herself and the ward's dependent; | ||
(3) the size of the ward's estate; | ||
(4) a beneficial interest the ward or the ward's spouse | ||
or dependent has in a trust; and | ||
(5) an existing estate plan, including a trust or | ||
will, that provides a benefit to the ward's spouse or dependent. | ||
(c) A person who makes an application to the court under | ||
this section shall mail notice of the application by certified mail | ||
to all interested persons. (Tex. Prob. Code, Sec. 776A.) | ||
CHAPTER 1157. | PRESENTMENT AND PAYMENT OF CLAIMS | |
SUBCHAPTER A. PRESENTMENT OF CLAIMS AGAINST | ||
GUARDIANSHIP ESTATE IN GENERAL | ||
Sec. | 1157.001. PRESENTMENT OF CLAIM TO GUARDIAN OF THE | |
ESTATE | ||
Sec. 1157.002. PRESENTMENT OF CLAIM TO CLERK | ||
Sec. 1157.003. INCLUSION OF ATTORNEY'S FEES IN CLAIM | ||
Sec. | 1157.004. AFFIDAVIT AUTHENTICATING CLAIM FOR | |
MONEY IN GENERAL | ||
Sec. | 1157.005. AFFIDAVIT AUTHENTICATING CLAIM OF | |
REPRESENTATIVES | ||
Sec. | 1157.006. LOST OR DESTROYED EVIDENCE CONCERNING | |
CLAIM | ||
Sec. | 1157.007. WAIVER OF CERTAIN DEFECTS OF FORM OR | |
CLAIMS OF INSUFFICIENCY | ||
Sec. | 1157.008. EFFECT ON STATUTES OF LIMITATION OF | |
FILING OF OR SUIT ON CLAIM | ||
[Sections 1157.009-1157.050 reserved for expansion] | ||
SUBCHAPTER B. ACTION ON CLAIMS | ||
Sec. 1157.051. ALLOWANCE OR REJECTION OF CLAIM | ||
Sec. | 1157.052. FAILURE TO ENDORSE OR ATTACH MEMORANDUM | |
OR ALLOW OR REJECT CLAIM | ||
Sec. 1157.053. CLAIM ENTERED ON CLAIM DOCKET | ||
Sec. 1157.054. CONTEST OF CLAIM | ||
Sec. 1157.055. COURT'S ACTION ON CLAIM | ||
Sec. 1157.056. HEARING ON CERTAIN CLAIMS | ||
Sec. 1157.057. COURT ORDER REGARDING ACTION ON CLAIM | ||
Sec. 1157.058. APPEAL OF COURT'S ACTION ON CLAIM | ||
Sec. | 1157.059. ALLOWANCE AND APPROVAL PROHIBITED | |
WITHOUT AFFIDAVIT | ||
Sec. | 1157.060. UNSECURED CLAIMS BARRED UNDER CERTAIN | |
CIRCUMSTANCES | ||
Sec. | 1157.061. ALLOWING BARRED CLAIM PROHIBITED; COURT | |
DISAPPROVAL | ||
Sec. | 1157.062. CERTAIN ACTIONS ON CLAIMS WITH LOST OR | |
DESTROYED EVIDENCE VOID | ||
Sec. 1157.063. SUIT ON REJECTED CLAIM | ||
Sec. | 1157.064. PRESENTMENT OF CLAIM PREREQUISITE FOR | |
JUDGMENT | ||
Sec. 1157.065. JUDGMENT IN SUIT ON REJECTED CLAIM | ||
[Sections 1157.066-1157.100 reserved for expansion] | ||
SUBCHAPTER C. PAYMENT OF CLAIMS, ALLOWANCES, AND EXPENSES | ||
Sec. | 1157.101. PAYMENT OF APPROVED OR ESTABLISHED | |
CLAIM | ||
Sec. 1157.102. PAYMENT OF UNAUTHENTICATED CLAIM | ||
Sec. 1157.103. PRIORITY OF PAYMENT OF CLAIMS | ||
Sec. | 1157.104. PAYMENT OF PROCEEDS FROM SALE OF | |
PROPERTY SECURING DEBT | ||
Sec. | 1157.105. CLAIMANT'S PETITION FOR ALLOWANCE AND | |
PAYMENT OF CLAIM | ||
Sec. | 1157.106. PAYMENT WHEN ASSETS INSUFFICIENT TO PAY | |
CERTAIN CLAIMS | ||
Sec. | 1157.107. PAYMENT OF COURT COSTS RELATING TO | |
CLAIM | ||
Sec. 1157.108. LIABILITY FOR NONPAYMENT OF CLAIM | ||
[Sections 1157.109-1157.150 reserved for expansion] | ||
SUBCHAPTER D. PRESENTMENT AND PAYMENT OF SECURED CLAIMS | ||
Sec. | 1157.151. OPTION TO TREAT CLAIM AS MATURED | |
LIEN | ||
Sec. 1157.152. PREFERRED DEBT AND LIEN | ||
Sec. | 1157.153. PAYMENT OF MATURITIES ON PREFERRED DEBT | |
AND LIEN | ||
[Sections 1157.154-1157.200 reserved for expansion] | ||
SUBCHAPTER E. CLAIMS INVOLVING GUARDIANS | ||
Sec. 1157.201. CLAIM BY GUARDIAN | ||
Sec. | 1157.202. PURCHASE OF CLAIM BY GUARDIAN | |
PROHIBITED | ||
CHAPTER 1157. PRESENTMENT AND PAYMENT OF CLAIMS | ||
SUBCHAPTER A. PRESENTMENT OF CLAIMS AGAINST | ||
GUARDIANSHIP ESTATE IN GENERAL | ||
ESTATE | ||
any time if: | ||
(1) the estate has not been closed; and | ||
(2) suit on the claim has not been barred by the | ||
general statutes of limitation. (Tex. Prob. Code, Sec. 786(a) | ||
(part).) | ||
. (a) A claim | ||
may also be presented by depositing the claim with the clerk with | ||
vouchers and the necessary exhibits and affidavit attached to the | ||
claim. On receiving a claim deposited under this subsection, the | ||
clerk shall advise the guardian of the estate or the guardian's | ||
attorney of the deposit of the claim by a letter mailed to the | ||
guardian's last known address. | ||
(b) A claim deposited under Subsection (a) is presumed to be | ||
rejected if the guardian fails to act on the claim on or before the | ||
30th day after the date the claim is filed. | ||
(c) Failure of the clerk to give the notice required under | ||
Subsection (a) does not affect the validity of the presentment or | ||
the presumption of rejection of the claim because the guardian does | ||
not act on the claim within the 30-day period prescribed by | ||
Subsection (b). (Tex. Prob. Code, Sec. 795.) | ||
. If | ||
the instrument evidencing or supporting a claim provides for | ||
attorney's fees, the claimant may include as a part of the claim the | ||
portion of the attorney's fees the claimant has paid or contracted | ||
to pay to an attorney to prepare, present, and collect the claim. | ||
(Tex. Prob. Code, Sec. 794.) | ||
GENERAL | ||
a claim for money against an estate must be supported by an | ||
affidavit that states: | ||
(1) that the claim is just; | ||
(2) that all legal offsets, payments, and credits | ||
known to the affiant have been allowed; and | ||
(3) if the claim is not founded on a written instrument | ||
or account, the facts on which the claim is founded. | ||
(b) A photostatic copy of an exhibit or voucher necessary to | ||
prove a claim under this section may be offered with and attached to | ||
the claim instead of attaching the original. (Tex. Prob. Code, Sec. | ||
788 (part).) | ||
CORPORATION OR BY CERTAIN OTHER REPRESENTATIVES | ||
treasurer, or managing official of a corporation shall make the | ||
affidavit required to authenticate a claim of the corporation. | ||
(b) In an affidavit made by an officer of a corporation, or | ||
by an executor, administrator, guardian, trustee, assignee, agent, | ||
or attorney, it is sufficient to state that the affiant has made | ||
diligent inquiry and examination and believes the claim is just and | ||
that all legal offsets, payments, and credits made known to the | ||
affiant have been allowed. (Tex. Prob. Code, Sec. 791.) | ||
. | ||
If evidence of a claim is lost or destroyed, the claimant or the | ||
claimant's representative may make an affidavit to the fact of the | ||
loss or destruction. The affidavit must state: | ||
(1) the amount, date, and nature of the claim; | ||
(2) the due date of the claim; | ||
(3) that the claim is just; | ||
(4) that all legal offsets, payments, and credits | ||
known to the affiant have been allowed; and | ||
(5) that the claimant is still the owner of the claim. | ||
(Tex. Prob. Code, Sec. 790 (part).) | ||
OF INSUFFICIENCY | ||
presented exhibit or voucher is considered waived by the guardian | ||
of the estate unless a written objection to the form, exhibit, or | ||
voucher is: | ||
(1) made not later than the 30th day after the date the | ||
claim is presented; and | ||
(2) filed with the county clerk. (Tex. Prob. Code, | ||
Sec. 789.) | ||
OF OR SUIT ON CLAIM | ||
by: | ||
(1) filing a claim that is legally allowed and | ||
approved; or | ||
(2) bringing a suit on a rejected and disapproved | ||
claim not later than the 90th day after the date the claim is | ||
rejected or disapproved. (Tex. Prob. Code, Sec. 787.) | ||
[Sections 1157.009-1157.050 reserved for expansion] | ||
SUBCHAPTER B. ACTION ON CLAIMS | ||
. A guardian | ||
of the estate shall, not later than the 30th day after the date an | ||
authenticated claim against the guardianship estate is presented to | ||
the guardian or filed with the clerk as provided by this chapter, | ||
endorse on or attach to the claim a memorandum signed by the | ||
guardian stating: | ||
(1) the date of presentation or filing of the claim; | ||
and | ||
(2) whether the guardian allows or rejects the claim, | ||
or, if the guardian allows or rejects a part of the claim, the | ||
portion of the claim the guardian allows or rejects. (Tex. Prob. | ||
Code, Sec. 796.) | ||
ALLOW OR REJECT CLAIM | ||
endorse on or attach to a claim presented to the guardian the | ||
memorandum required by Section 1157.051 or, not later than the 30th | ||
day after the date a claim is presented, to allow or reject the | ||
claim or portion of the claim constitutes a rejection of the claim. | ||
If the claim is later established by suit: | ||
(1) the costs shall be taxed against the guardian, | ||
individually; or | ||
(2) the guardian may be removed as in other cases of | ||
removal on the written complaint of any person interested in the | ||
claim after personal service of citation, hearing, and proof. | ||
(Tex. Prob. Code, Sec. 797.) | ||
. After a claim | ||
against a ward's estate has been presented to and allowed by the | ||
guardian of the estate, wholly or partly, the claim must be filed | ||
with the county clerk of the proper county. The clerk shall enter | ||
the claim on the claim docket. (Tex. Prob. Code, Sec. 798.) | ||
. (a) A person interested | ||
in a ward may, at any time before the court has acted on a claim, | ||
appear and object in writing to the approval of the claim or any | ||
part of the claim. | ||
(b) If a person objects under Subsection (a): | ||
(1) the parties are entitled to process for witnesses; | ||
and | ||
(2) the court shall hear evidence and render judgment | ||
as in ordinary suits. (Tex. Prob. Code, Sec. 799(a).) | ||
. The court shall: | ||
(1) approve, wholly or partly, or reject a claim that | ||
has been allowed and entered on the claim docket for a period of 10 | ||
days; and | ||
(2) concurrently classify the claim. (Tex. Prob. | ||
Code, Sec. 799(b).) | ||
. (a) If a claim | ||
is properly authenticated and allowed, but the court is not | ||
satisfied that the claim is just, the court shall: | ||
(1) examine the claimant and the guardian of the | ||
estate under oath; and | ||
(2) hear other evidence necessary to determine the | ||
issue. | ||
(b) If after the examination and hearing the court is not | ||
convinced that the claim is just, the court shall disapprove the | ||
claim. (Tex. Prob. Code, Sec. 799(c).) | ||
. (a) | ||
The court acting on a claim shall endorse on or attach to the claim a | ||
written memorandum that: | ||
(1) is dated and officially signed; and | ||
(2) states: | ||
(A) the exact action taken by the court on the | ||
claim, whether the claim is approved or disapproved, or is approved | ||
in part and rejected in part; and | ||
(B) the classification of the claim. | ||
(b) An order under Subsection (a) has the effect of a final | ||
judgment. (Tex. Prob. Code, Sec. 799(d).) | ||
. If a | ||
claimant or any person interested in a ward is dissatisfied with the | ||
court's action on a claim, the claimant or interested person may | ||
appeal the action to the court of appeals in the manner other | ||
judgments of the county court in probate matters are appealed. | ||
(Tex. Prob. Code, Sec. 799(e).) | ||
AFFIDAVIT | ||
the estate may not allow, and the court may not approve, a claim for | ||
money against the estate unless the claim is supported by an | ||
affidavit that meets the applicable requirements of Sections | ||
1157.004 and 1157.005. (Tex. Prob. Code, Sec. 788 (part).) | ||
CIRCUMSTANCES | ||
not presented within the time prescribed by the notice of | ||
presentment permitted by Section 1153.004 is barred. (Tex. Prob. | ||
Code, Sec. 786(a) (part).) | ||
DISAPPROVAL | ||
a ward if a suit on the claim is barred by an applicable general | ||
statute of limitation. A claim against a ward that is allowed by | ||
the guardian shall be disapproved if the court is satisfied that the | ||
limitation has run. (Tex. Prob. Code, Sec. 786(b).) | ||
DESTROYED EVIDENCE VOID | ||
is lost or destroyed is approved, the claim must be proved by | ||
disinterested testimony taken in open court or by oral or written | ||
deposition. | ||
(b) The allowance or approval of a claim the evidence for | ||
which is lost or destroyed is void if the claim is: | ||
(1) allowed or approved without the affidavit under | ||
Section 1157.006; or | ||
(2) approved without satisfactory proof. (Tex. Prob. | ||
Code, Sec. 790 (part).) | ||
. (a) A claim or part | ||
of a claim that has been rejected by the guardian of the estate is | ||
barred unless not later than the 90th day after the date of | ||
rejection the claimant commences suit on the claim in the court of | ||
original probate jurisdiction in which the guardianship is pending | ||
or in any other court of proper jurisdiction. | ||
(b) In a suit commenced on the rejected claim, the | ||
memorandum endorsed on or attached to the claim is taken to be true | ||
without further proof unless denied under oath. (Tex. Prob. Code, | ||
Sec. 800 (part).) | ||
JUDGMENT | ||
not be rendered in favor of a claimant on a claim for money that has | ||
not been: | ||
(1) legally presented to the guardian of the estate of | ||
the ward; and | ||
(2) wholly or partly rejected by the guardian or the | ||
court. | ||
(b) Subsection (a) does not apply to a claim against the | ||
estate of a ward for delinquent ad valorem taxes that is being | ||
administered in probate in a county other than the county in which | ||
the taxes were imposed. (Tex. Prob. Code, Sec. 801.) | ||
. No | ||
execution may issue on a rejected claim or part of a claim that is | ||
established by suit. The judgment in the suit shall be: | ||
(1) certified not later than the 30th day after the | ||
date of rendition, if the judgment is from a court other than the | ||
court of original probate jurisdiction; | ||
(2) filed in the court in which the guardianship is | ||
pending; | ||
(3) entered on the claim docket; | ||
(4) classified by the court; and | ||
(5) handled as if originally allowed and approved in | ||
due course of administration. (Tex. Prob. Code, Sec. 800 (part).) | ||
[Sections 1157.066-1157.100 reserved for expansion] | ||
SUBCHAPTER C. PAYMENT OF CLAIMS, ALLOWANCES, AND EXPENSES | ||
. | ||
Except as provided for payment of an unauthenticated claim at the | ||
risk of a guardian, a claim or any part of a claim for money against | ||
the estate of a ward may not be paid until the claim or part of the | ||
claim has been approved by the court or established by the judgment | ||
of a court of competent jurisdiction. (Tex. Prob. Code, Sec. 804.) | ||
. (a) | ||
Subject to Subsection (b), a guardian of the estate may pay an | ||
unauthenticated claim against the ward's estate if the guardian | ||
believes the claim to be just. | ||
(b) A guardian who pays a claim under Subsection (a) and the | ||
sureties on the guardian's bond are liable for the amount of any | ||
payment of the claim if the court finds that the claim is not just. | ||
(Tex. Prob. Code, Sec. 792.) | ||
. (a) Except | ||
as provided by Subsection (b), the guardian of the estate shall pay | ||
a claim against the ward's estate that has been allowed and approved | ||
or established by suit, as soon as practicable and in the following | ||
order: | ||
(1) expenses for the care, maintenance, and education | ||
of the ward or the ward's dependents; | ||
(2) funeral expenses of the ward and expenses of the | ||
ward's last illness, if the guardianship is kept open after the | ||
ward's death as provided under this title, except that any claim | ||
against the ward's estate that has been allowed and approved or | ||
established by suit before the ward's death shall be paid before the | ||
funeral expenses and expenses of the last illness; | ||
(3) expenses of administration; and | ||
(4) other claims against the ward or the ward's estate. | ||
(b) If the estate is insolvent, the guardian shall give | ||
first priority to the payment of a claim relating to the | ||
administration of the guardianship. The guardian shall pay other | ||
claims against the ward's estate in the order prescribed by | ||
Subsection (a). (Tex. Prob. Code, Secs. 805(a), (b).) | ||
SECURING DEBT | ||
proceeds of a sale made to satisfy a mortgage or other lien and the | ||
proceeds or any part of the proceeds are not required for the | ||
payment of any debts against the estate that have a preference over | ||
the mortgage or other lien, the guardian shall pay the proceeds to a | ||
holder of the mortgage or other lien. | ||
(b) If the guardian fails to pay the proceeds as required by | ||
this section, the holder of a mortgage or other lien, on proof of | ||
the mortgage or other lien, may obtain an order from the court | ||
directing the payment of proceeds to be made. (Tex. Prob. Code, | ||
Sec. 808.) | ||
PAYMENT OF CLAIM | ||
(1) petition the court for determination of the claim | ||
at any time before the claim is barred by an applicable statute of | ||
limitations; and | ||
(2) procure on due proof an order for the claim's | ||
allowance and payment from the estate. (Tex. Prob. Code, Sec. | ||
805(c).) | ||
CERTAIN CLAIMS | ||
claims of the same class, the claims in that class shall be paid pro | ||
rata, as directed by the court, and in the order directed. | ||
(b) A guardian of the estate may not be allowed to pay any | ||
claims other than with the pro rata amount of the estate funds that | ||
have come into the guardian's possession, regardless of whether the | ||
estate is solvent or insolvent. (Tex. Prob. Code, Sec. 806.) | ||
. | ||
All costs incurred in the probate court with respect to a claim are | ||
taxed as follows: | ||
(1) if the claim is allowed and approved, the | ||
guardianship estate shall pay the costs; | ||
(2) if the claim is allowed but disapproved, the | ||
claimant shall pay the costs; | ||
(3) if the claim is rejected but established by suit, | ||
the guardianship estate shall pay the costs; | ||
(4) if the claim is rejected but not established by | ||
suit, the claimant shall pay the costs; or | ||
(5) in a suit to establish the claim after the claim is | ||
rejected in part, if the claimant fails to recover judgment for a | ||
greater amount than was allowed or approved for the claim, the | ||
claimant shall pay all costs. (Tex. Prob. Code, Sec. 802.) | ||
. (a) A | ||
person or claimant, except the state treasury, entitled to payment | ||
from a guardianship estate of money the court orders to be paid is | ||
authorized to have execution issued against the property of the | ||
guardianship for the amount due, with interest and costs, if: | ||
(1) a guardian of the estate fails to pay the money on | ||
demand; | ||
(2) guardianship estate funds are available to make | ||
the payment; and | ||
(3) the person or claimant makes an affidavit of the | ||
demand for payment and the guardian's failure to pay. | ||
(b) The court may cite the guardian and the sureties on the | ||
guardian's bond to show cause why the guardian or sureties should | ||
not be held liable for the debt, interest, costs, or damages: | ||
(1) on return of the execution under Subsection (a) | ||
not satisfied; or | ||
(2) on the affidavit of demand and failure to pay under | ||
Subsection (a). | ||
(c) On the return of citation served under Subsection (b), | ||
the court shall render judgment against the cited guardian and | ||
sureties, in favor of the claim holder, if good cause why the | ||
guardian and sureties should not be held liable is not shown. The | ||
judgment must be for: | ||
(1) the unpaid amount ordered to be paid or | ||
established by suit, with interest and costs; and | ||
(2) damages on the amount neglected to be paid at the | ||
rate of five percent per month for each month, or fraction of a | ||
month, that the payment was neglected to be paid after demand for | ||
payment was made. | ||
(d) Damages ordered under Subsection (c)(2) may be | ||
collected in any court of competent jurisdiction. (Tex. Prob. Code, | ||
Sec. 809.) | ||
[Sections 1157.109-1157.150 reserved for expansion] | ||
SUBCHAPTER D. PRESENTMENT AND PAYMENT OF SECURED CLAIMS | ||
CLAIM OR PREFERRED DEBT AND LIEN | ||
ward is presented, the claimant shall specify in the claim, in | ||
addition to all other matters required to be specified in the claim, | ||
whether the claim shall be: | ||
(1) allowed and approved as a matured secured claim to | ||
be paid in due course of administration, in which case the claim | ||
shall be paid in that manner if allowed and approved; or | ||
(2) allowed, approved, and fixed as a preferred debt | ||
and lien against the specific property securing the indebtedness | ||
and paid according to the terms of the contract that secured the | ||
lien, in which case the claim shall be so allowed and approved if it | ||
is a valid lien. | ||
(b) Notwithstanding Subsection (a)(2), the guardian of the | ||
estate may pay a claim that the claimant specified as a claim to be | ||
allowed, approved, and fixed as a preferred debt and lien as | ||
described by Subsection (a)(2) before maturity if that payment is | ||
in the best interests of the estate. | ||
(c) If a secured claim is not presented within the time | ||
provided by law, the claim shall be treated as a claim to be paid in | ||
accordance with Subsection (a)(2). (Tex. Prob. Code, Secs. 793(a), | ||
(b).) | ||
. When a claim for a | ||
debt has been allowed and approved under Section 1157.151(a)(2): | ||
(1) a further claim for the debt may not be made | ||
against other estate assets; | ||
(2) the claim remains a preferred lien against the | ||
property securing the claim; and | ||
(3) the property remains security for the debt in any | ||
distribution or sale of the property before final maturity and | ||
payment of the debt. (Tex. Prob. Code, Sec. 793(c).) | ||
LIEN | ||
of guardianship are granted, the property securing a debt for which | ||
a claim is allowed, approved, and fixed under Section | ||
1157.151(a)(2) is not sold or distributed, the guardian of the | ||
estate shall: | ||
(1) promptly pay all maturities that have accrued on | ||
the debt according to the terms of the maturities; and | ||
(2) perform all the terms of any contract securing the | ||
maturities. | ||
(b) If the guardian defaults in payment or performance under | ||
Subsection (a): | ||
(1) on the motion of the claim holder, the court shall | ||
require the sale of the property subject to the unmatured part of | ||
the debt and apply the proceeds of the sale to the liquidation of | ||
the maturities; or | ||
(2) at the claim holder's option, a motion may be made | ||
in the same manner as a motion under Subdivision (1) to require the | ||
sale of the property free of the lien and apply the proceeds to the | ||
payment of the whole debt. (Tex. Prob. Code, Sec. 793(d).) | ||
[Sections 1157.154-1157.200 reserved for expansion] | ||
SUBCHAPTER E. CLAIMS INVOLVING GUARDIANS | ||
. (a) A claim that a | ||
guardian of the person or estate held against the ward at the time | ||
of the guardian's appointment, or that accrues after the | ||
appointment, shall be verified by affidavit as required in other | ||
cases and presented to the clerk of the court in which the | ||
guardianship is pending. The clerk shall enter the claim on the | ||
claim docket and the claim shall take the same course as other | ||
claims. | ||
(b) A claim by a guardian that has been filed with the court | ||
within the required period shall be entered on the claim docket and | ||
acted on by the court in the same manner as in other cases. | ||
(c) An appeal from a judgment of the court acting on a claim | ||
under this section may be taken as in other cases. (Tex. Prob. | ||
Code, Sec. 803.) | ||
. | ||
(a) A guardian may not purchase, for the guardian's own use or for | ||
any other purpose, a claim against the guardianship the guardian | ||
represents. | ||
(b) On written complaint by a person interested in the | ||
guardianship estate and on satisfactory proof of a violation of | ||
Subsection (a), the court after citation and hearing shall enter an | ||
order canceling the claim described by Subsection (a). No part of | ||
the canceled claim may be paid out of the guardianship. | ||
(c) The court may remove a guardian for a violation of this | ||
section. (Tex. Prob. Code, Sec. 807.) | ||
CHAPTER 1158. | SALE OR PARTITION OF WARD'S PROPERTY | |
SUBCHAPTER A. GENERAL PROVISIONS | ||
Sec. 1158.001. COURT ORDER AUTHORIZING SALE | ||
[Sections 1158.002-1158.050 reserved for expansion] | ||
SUBCHAPTER B. CERTAIN ESTATE PROPERTY REQUIRED TO BE SOLD | ||
Sec. | 1158.051. SALE OF CERTAIN PERSONAL PROPERTY | |
REQUIRED | ||
[Sections 1158.052-1158.100 reserved for expansion] | ||
SUBCHAPTER C. SALE OF PERSONAL PROPERTY | ||
Sec. 1158.101. ORDER FOR SALE | ||
Sec. 1158.102. REQUIREMENTS FOR APPLICATION AND ORDER | ||
Sec. 1158.103. SALE AT PUBLIC AUCTION | ||
Sec. 1158.104. SALE ON CREDIT | ||
Sec. 1158.105. REPORT; EVIDENCE OF TITLE | ||
[Sections 1158.106-1158.150 reserved for expansion] | ||
SUBCHAPTER D. SALE OF LIVESTOCK | ||
Sec. 1158.151. AUTHORITY FOR SALE | ||
Sec. 1158.152. CONTENTS OF APPLICATION; HEARING | ||
Sec. 1158.153. GRANT OF APPLICATION | ||
Sec. 1158.154. REPORT; PASSAGE OF TITLE | ||
Sec. 1158.155. COMMISSION MERCHANT CHARGES | ||
[Sections 1158.156-1158.200 reserved for expansion] | ||
SUBCHAPTER E. SALE OF MORTGAGED PROPERTY | ||
Sec. | 1158.201. APPLICATION FOR SALE OF MORTGAGED | |
PROPERTY | ||
Sec. 1158.202. CITATION | ||
Sec. 1158.203. ORDER | ||
[Sections 1158.204-1158.250 reserved for expansion] | ||
SUBCHAPTER F. SALE OF REAL PROPERTY: APPLICATION AND ORDER FOR SALE | ||
Sec. 1158.251. APPLICATION FOR ORDER OF SALE | ||
Sec. 1158.252. CONTENTS OF APPLICATION | ||
Sec. 1158.253. CITATION | ||
Sec. 1158.254. OPPOSITION TO SALE | ||
Sec. | 1158.255. HEARING ON APPLICATION AND ANY | |
OPPOSITION | ||
Sec. 1158.256. ORDER | ||
Sec. 1158.257. SALE FOR PAYMENT OF DEBTS | ||
[Sections 1158.258-1158.300 reserved for expansion] | ||
SUBCHAPTER G. SALE OF REAL ESTATE: TERMS OF SALE | ||
Sec. 1158.301. PERMISSIBLE TERMS | ||
Sec. 1158.302. SALE ON CREDIT | ||
[Sections 1158.303-1158.350 reserved for expansion] | ||
SUBCHAPTER H. RECONVEYANCE OF REAL ESTATE FOLLOWING FORECLOSURE | ||
Sec. 1158.351. APPLICABILITY OF SUBCHAPTER | ||
Sec. 1158.352. APPLICATION AND ORDER FOR RECONVEYANCE | ||
Sec. 1158.353. EXCHANGE FOR BONDS | ||
[Sections 1158.354-1158.400 reserved for expansion] | ||
SUBCHAPTER I. SALE OF REAL ESTATE: PUBLIC SALE | ||
Sec. 1158.401. REQUIRED NOTICE | ||
Sec. 1158.402. METHOD OF SALE | ||
Sec. 1158.403. TIME AND PLACE OF SALE | ||
Sec. 1158.404. CONTINUANCE OF SALE | ||
Sec. 1158.405. FAILURE OF BIDDER TO COMPLY | ||
[Sections 1158.406-1158.450 reserved for expansion] | ||
SUBCHAPTER J. SALE OF REAL ESTATE: PRIVATE SALE | ||
Sec. 1158.451. MANNER OF SALE | ||
[Sections 1158.452-1158.500 reserved for expansion] | ||
SUBCHAPTER K. | SALE OF EASEMENT OR RIGHT-OF-WAY | |
Sec. 1158.501. AUTHORIZATION | ||
Sec. 1158.502. PROCEDURE | ||
[Sections 1158.503-1158.550 reserved for expansion] | ||
SUBCHAPTER L. CONFIRMATION OF SALE OF REAL PROPERTY AND TRANSFER OF | TITLE | |
TITLE | ||
Sec. 1158.551. REPORT | ||
Sec. 1158.552. ACTION OF COURT ON REPORT OF SALE | ||
Sec. | 1158.553. CONFIRMATION OF SALE WHEN BOND NOT | |
REQUIRED | ||
Sec. 1158.554. SUFFICIENCY OF BOND | ||
Sec. | 1158.555. INCREASED OR ADDITIONAL BOND NOT | |
REQUIRED | ||
Sec. 1158.556. CONFIRMATION OR DISAPPROVAL ORDER | ||
Sec. 1158.557. DEED | ||
Sec. 1158.558. DELIVERY OF DEED | ||
Sec. 1158.559. DAMAGES; REMOVAL | ||
[Sections 1158.560-1158.600 reserved for expansion] | ||
SUBCHAPTER M. PROCEDURE ON FAILURE TO APPLY FOR SALE | ||
Sec. 1158.601. FAILURE TO APPLY FOR SALE | ||
Sec. 1158.602. COURT ORDER | ||
[Sections 1158.603-1158.650 reserved for expansion] | ||
SUBCHAPTER N. PURCHASE OF ESTATE PROPERTY BY GUARDIAN | ||
Sec. 1158.651. GENERAL PROHIBITION ON PURCHASE | ||
Sec. 1158.652. EXCEPTION: EXECUTORY CONTRACT | ||
Sec. 1158.653. EXCEPTION: BEST INTEREST OF ESTATE | ||
Sec. 1158.654. PURCHASE IN VIOLATION OF SUBCHAPTER | ||
[Sections 1158.655-1158.700 reserved for expansion] | ||
SUBCHAPTER O. PARTITION OF WARD'S INTEREST IN REAL ESTATE | ||
Sec. 1158.701. PARTITION BY AGREEMENT | ||
Sec. | 1158.702. APPLICATION FOR APPROVAL OF PARTITION | |
AGREEMENT | ||
Sec. 1158.703. HEARING | ||
Sec. 1158.704. ORDER | ||
Sec. | 1158.705. PARTITION WITHOUT COURT APPROVAL; | |
RATIFICATION OF PARTITION AGREEMENT | ||
Sec. 1158.706. PARTITION BY SUIT | ||
CHAPTER 1158. SALE OR PARTITION OF WARD'S PROPERTY | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
. (a) Except as | ||
provided by this chapter, any property of a ward may not be sold | ||
without a court order authorizing the sale. | ||
(b) Except as otherwise specifically provided by this | ||
title, the court may order property of a ward to be sold for cash or | ||
on credit, at public auction or privately, as the court considers | ||
most advantageous to the estate. (Tex. Prob. Code, Sec. 811.) | ||
[Sections 1158.002-1158.050 reserved for expansion] | ||
SUBCHAPTER B. CERTAIN ESTATE PROPERTY REQUIRED TO BE SOLD | ||
. | ||
(a) After approval of the inventory, appraisement, and list of | ||
claims, the guardian of the estate of a ward promptly shall apply | ||
for a court order to sell, at public auction or privately, for cash | ||
or on credit for a term not to exceed six months, all estate | ||
property that is liable to perish, waste, or deteriorate in value, | ||
or that will be an expense or disadvantage to the estate if kept. | ||
(b) The following may not be included in a sale under | ||
Subsection (a): | ||
(1) property exempt from forced sale; | ||
(2) property that is the subject of a specific legacy; | ||
and | ||
(3) personal property necessary to carry on a farm, | ||
ranch, factory, or other business that is thought best to operate. | ||
(c) In determining whether to order the sale of an asset | ||
under Subsection (a), the court shall consider: | ||
(1) the guardian's duty to take care of and manage the | ||
estate in the manner a person of ordinary prudence, discretion, and | ||
intelligence would manage the person's own affairs; and | ||
(2) whether the asset constitutes an asset that a | ||
trustee is authorized to invest under Subchapter F, Chapter 113, | ||
Property Code, or Chapter 117, Property Code. (Tex. Prob. Code, | ||
Sec. 812.) | ||
[Sections 1158.052-1158.100 reserved for expansion] | ||
SUBCHAPTER C. SALE OF PERSONAL PROPERTY | ||
. (a) Except as provided by | ||
Subsection (b), on the application of the guardian of the estate of | ||
a ward or any interested person, the court may order the sale of any | ||
estate personal property not required to be sold by Section | ||
1158.051, including livestock or growing or harvested crops, if the | ||
court finds that the sale of the property is in the best interests | ||
of the ward or the ward's estate to pay, from the proceeds of the | ||
sale: | ||
(1) expenses of the care, maintenance, and education | ||
of the ward or the ward's dependents; | ||
(2) expenses of administration; | ||
(3) allowances; | ||
(4) claims against the ward or the ward's estate; and | ||
(5) if the guardianship is kept open after the death of | ||
the ward, the ward's funeral expenses and expenses of the ward's | ||
last illness. | ||
(b) The court may not order under this section the sale of | ||
exempt property. (Tex. Prob. Code, Sec. 813 (part).) | ||
. To | ||
the extent possible, an application and order for the sale of estate | ||
personal property under Section 1158.101 must conform to the | ||
requirements under Subchapter F for an application and order for | ||
the sale of real estate. (Tex. Prob. Code, Sec. 813 (part).) | ||
. Unless the court | ||
directs otherwise, before estate personal property is sold at | ||
public auction, notice must be: | ||
(1) issued by the guardian of the estate; and | ||
(2) posted in the manner notice is posted for original | ||
proceedings in probate. (Tex. Prob. Code, Sec. 815.) | ||
. (a) Estate personal | ||
property may not be sold on credit at public auction for a term of | ||
more than six months from the date of sale. | ||
(b) Estate personal property purchased on credit at public | ||
auction may not be delivered to the purchaser until the purchaser | ||
gives a note for the amount due, with good and solvent personal | ||
security. The requirement that security be provided may be waived | ||
if the property will not be delivered until the note, with interest, | ||
has been paid. (Tex. Prob. Code, Sec. 816.) | ||
. (a) A sale of | ||
estate personal property shall be reported to the court. The laws | ||
regulating the confirmation or disapproval of a sale of real estate | ||
apply to the sale of personal property, except that a conveyance is | ||
not required. | ||
(b) The court's order confirming the sale of estate personal | ||
property: | ||
(1) vests the right and title of the ward's estate in | ||
the purchaser who has complied with the terms of the sale; and | ||
(2) is prima facie evidence that all requirements of | ||
the law in making the sale have been met. | ||
(c) The guardian of the estate, on request, may issue a bill | ||
of sale without warranty to the purchaser of estate personal | ||
property as evidence of title. The expense of the bill of sale if | ||
requested must be paid by the purchaser. (Tex. Prob. Code, Sec. | ||
818.) | ||
[Sections 1158.106-1158.150 reserved for expansion] | ||
SUBCHAPTER D. SALE OF LIVESTOCK | ||
. (a) A guardian of the | ||
estate who has possession of livestock and who considers selling | ||
the livestock to be necessary or to the estate's advantage may, in | ||
addition to any other method provided by law for the sale of | ||
personal property, obtain authority from the court in which the | ||
estate is pending to sell the livestock through: | ||
(1) a bonded livestock commission merchant; or | ||
(2) a bonded livestock auction commission merchant. | ||
(b) The court may authorize the sale of livestock in the | ||
manner described by Subsection (a) on a written and sworn | ||
application by the guardian or any person interested in the estate. | ||
(Tex. Prob. Code, Secs. 814(a), (b) (part).) | ||
. (a) An | ||
application under Section 1158.151 must: | ||
(1) describe the livestock sought to be sold; and | ||
(2) state why granting the application is necessary or | ||
to the estate's advantage. | ||
(b) The court: | ||
(1) shall consider the application; and | ||
(2) may hear evidence for or against the application, | ||
with or without notice, as the facts warrant. (Tex. Prob. Code, | ||
Sec. 814(b) (part).) | ||
. If the court grants an | ||
application for the sale of livestock, the court shall: | ||
(1) enter an order to that effect; and | ||
(2) authorize delivery of the livestock to a | ||
commission merchant described by Section 1158.151(a) for sale in | ||
the regular course of business. (Tex. Prob. Code, Sec. 814(c) | ||
(part).) | ||
. The guardian of | ||
the estate shall promptly report to the court a sale of livestock, | ||
supported by a verified copy of the commission merchant's account | ||
of the sale. A court order of confirmation is not required to pass | ||
title to the purchaser of the livestock. (Tex. Prob. Code, Sec. | ||
814(c) (part).) | ||
. The commission | ||
merchant shall be paid the commission merchant's usual and | ||
customary charges, not to exceed five percent of the sale price, for | ||
the sale of the livestock. (Tex. Prob. Code, Sec. 814(c) (part).) | ||
[Sections 1158.156-1158.200 reserved for expansion] | ||
SUBCHAPTER E. SALE OF MORTGAGED PROPERTY | ||
. | ||
On the filing of a written application, a creditor holding a claim | ||
that is secured by a valid mortgage or other lien and that has been | ||
allowed and approved or established by suit may obtain from the | ||
court in which the guardianship is pending an order requiring that | ||
the property securing the lien, or as much of the property as is | ||
necessary to satisfy the creditor's claim, be sold. (Tex. Prob. | ||
Code, Sec. 817 (part).) | ||
. On the filing of an application | ||
under Section 1158.201, the clerk shall issue a citation requiring | ||
the guardian of the estate to appear and show cause why the | ||
application should not be granted. (Tex. Prob. Code, Sec. 817 | ||
(part).) | ||
. The court may order the lien securing | ||
the claim of a creditor who files an application under Section | ||
1158.201 to be discharged out of general estate assets or | ||
refinanced if the discharge or refinance of the lien appears to the | ||
court to be advisable. Otherwise, the court shall grant the | ||
application and order that the property securing the lien be sold at | ||
public or private sale, as the court considers best, as in an | ||
ordinary sale of real estate. (Tex. Prob. Code, Sec. 817 (part).) | ||
[Sections 1158.204-1158.250 reserved for expansion] | ||
SUBCHAPTER F. SALE OF REAL PROPERTY: APPLICATION AND ORDER FOR SALE | ||
. An | ||
application may be made to the court for an order to sell real | ||
property of a ward's estate if the sale appears necessary or | ||
advisable to: | ||
(1) pay: | ||
(A) expenses of administration, allowances, and | ||
claims against the ward or the ward's estate; and | ||
(B) if the guardianship is kept open after the | ||
death of the ward, the ward's funeral expenses and expenses of the | ||
ward's last illness; | ||
(2) make up the deficiency if the income of a ward's | ||
estate, the personal property of the estate, and the proceeds of | ||
previous sales are insufficient to pay for the education and | ||
maintenance of the ward or to pay debts against the estate; | ||
(3) dispose of property of the ward's estate that | ||
consists wholly or partly of an undivided interest in real estate if | ||
considered in the best interests of the estate to sell the interest; | ||
(4) dispose of real estate of a ward, any part of which | ||
is nonproductive or does not produce sufficient revenue to make a | ||
fair return on the value of the real estate, if: | ||
(A) the improvement of the real estate with a | ||
view to making the property productive is not considered | ||
advantageous or advisable; and | ||
(B) the sale of the real estate and the | ||
investment of the money derived from that sale appears to be in the | ||
estate's best interests; or | ||
(5) conserve the ward's estate by selling mineral | ||
interest or royalties on minerals in place owned by the ward. (Tex. | ||
Prob. Code, Sec. 820.) | ||
. An application for | ||
the sale of real estate must: | ||
(1) be in writing; | ||
(2) describe: | ||
(A) the real estate sought to be sold; or | ||
(B) the interest in or part of the real estate | ||
sought to be sold; and | ||
(3) be accompanied by an exhibit, verified by an | ||
affidavit, showing fully and in detail: | ||
(A) the estate's condition; | ||
(B) the charges and claims that have been | ||
approved or established by suit or that have been rejected and may | ||
be established later; | ||
(C) the amount of each claim described by | ||
Paragraph (B); | ||
(D) the estate property remaining on hand that is | ||
liable for the payment of the claims described by Paragraph (B); and | ||
(E) any other facts showing the necessity for or | ||
advisability of the sale. (Tex. Prob. Code, Sec. 821.) | ||
. On the filing of an application | ||
for the sale of real estate under Section 1158.251, accompanied by | ||
an exhibit described by Section 1158.252, the clerk shall issue a | ||
citation to all persons interested in the guardianship. The | ||
citation must: | ||
(1) describe the real estate or the interest in or part | ||
of the real estate sought to be sold; | ||
(2) inform the interested persons of the right under | ||
Section 1158.254 to file an opposition to the sale during the period | ||
prescribed by the court in the citation; and | ||
(3) be served by posting. (Tex. Prob. Code, Sec. 823.) | ||
. During the period | ||
prescribed in a citation issued under Section 1158.253, a person | ||
interested in the guardianship may file: | ||
(1) a written opposition to the sale; or | ||
(2) an application for the sale of other estate | ||
property. (Tex. Prob. Code, Sec. 824.) | ||
. | ||
(a) The clerk of the court in which an application for an order of | ||
sale is filed shall immediately call to the judge's attention any | ||
opposition to the sale that is filed during the period prescribed in | ||
the citation issued under Section 1158.253. The court shall hold a | ||
hearing on the application if an opposition to the sale is filed | ||
during the period prescribed in the citation. | ||
(b) A hearing on an application for an order of sale is not | ||
required under this section if no opposition to the application is | ||
filed during the period prescribed in the citation. The court may | ||
determine that a hearing on the application is necessary even if no | ||
opposition is filed during that period. | ||
(c) If the court orders a hearing under Subsection (a) or | ||
(b), the court shall designate in writing a date and time for the | ||
hearing on the application and any opposition, together with the | ||
evidence pertaining to the application and any opposition. The | ||
clerk shall issue a notice of the date and time of the hearing to the | ||
applicant and to each person who files an opposition to the sale, if | ||
applicable. | ||
(d) The judge, by entries on the docket, may continue a | ||
hearing held under this section from time to time until the judge is | ||
satisfied concerning the application. (Tex. Prob. Code, Sec. | ||
824A.) | ||
. (a) The court shall order the sale | ||
of the property of the estate described in an application under | ||
Section 1158.251 if the court is satisfied that the sale is | ||
necessary or advisable. Otherwise, the court may deny the | ||
application and, if the court considers it best, may order the sale | ||
of other estate property the sale of which would be more | ||
advantageous to the estate. | ||
(b) An order for the sale of real estate under this section | ||
must specify: | ||
(1) the property to be sold, including a description | ||
that identifies that property; | ||
(2) whether the property is to be sold at public | ||
auction or private sale and, if at public auction, the time and | ||
place of the sale; | ||
(3) the necessity or advisability of, and the purpose | ||
of, the sale; | ||
(4) except in a case in which a guardian of the estate | ||
was not required to give a general bond, that the court, after | ||
examining the general bond given by the guardian, finds that: | ||
(A) the bond is sufficient as required by law; or | ||
(B) the bond is insufficient; | ||
(5) if the court finds that the general bond is | ||
insufficient under Subdivision (4)(B), the amount of the necessary | ||
or increased bond, as applicable; | ||
(6) that the sale is to be made and the report returned | ||
in accordance with law; and | ||
(7) the terms of the sale. (Tex. Prob. Code, Sec. | ||
825.) | ||
. Real property of | ||
a ward selected to be sold for the payment of expenses or claims | ||
must be that property the sale of which the court considers most | ||
advantageous to the guardianship. (Tex. Prob. Code, Sec. 819.) | ||
[Sections 1158.258-1158.300 reserved for expansion] | ||
SUBCHAPTER G. SALE OF REAL ESTATE: TERMS OF SALE | ||
. Real estate of an estate | ||
may be sold for cash, or for part cash and part credit, or the equity | ||
in land securing an indebtedness may be sold subject to the | ||
indebtedness, or with an assumption of the indebtedness, at public | ||
or private sale, as appears to the court to be in the estate's best | ||
interests. (Tex. Prob. Code, Sec. 827(a) (part).) | ||
. (a) The cash payment for | ||
real estate of an estate sold partly on credit may not be less than | ||
one-fifth of the purchase price. The purchaser shall execute a note | ||
for the deferred payments, payable in monthly, quarterly, | ||
semiannual, or annual installments, in amounts that appear to the | ||
court to be in the guardianship's best interests. The note must | ||
bear interest from the date at a rate of not less than four percent | ||
per year, payable as provided in the note. | ||
(b) A note executed by a purchaser under Subsection (a) must | ||
be secured by a vendor's lien retained in the deed and in the note on | ||
the property sold, and be additionally secured by a deed of trust on | ||
the property sold, with the usual provisions for foreclosure and | ||
sale on failure to make the payments provided in the deed and the | ||
note. | ||
(c) At the election of the holder of a note executed by a | ||
purchaser under Subsection (a), default in the payment of principal | ||
or interest or any part of the payment when due matures the entire | ||
debt. (Tex. Prob. Code, Sec. 827(a) (part).) | ||
[Sections 1158.303-1158.350 reserved for expansion] | ||
SUBCHAPTER H. RECONVEYANCE OF REAL ESTATE FOLLOWING FORECLOSURE | ||
. This | ||
subchapter applies only to real estate owned by an estate as a | ||
result of the foreclosure of a vendor's lien or mortgage belonging | ||
to the estate: | ||
(1) by a judicial sale; | ||
(2) by a foreclosure suit; | ||
(3) through a sale under a deed of trust; or | ||
(4) by acceptance of a deed in cancellation of a lien | ||
or mortgage owned by the estate. (Tex. Prob. Code, Sec. 827(b) | ||
(part).) | ||
. On | ||
proper application and proof, the court may dispense with the | ||
requirements for a credit sale prescribed by Section 1158.302 and | ||
order the reconveyance of foreclosed real estate to the former | ||
mortgage debtor or former owner if it appears to the court that: | ||
(1) an application to redeem the real estate has been | ||
made by the former owner to a corporation or agency created by an | ||
act of the United States Congress or of this state in connection | ||
with legislation for the relief of owners of mortgaged or | ||
encumbered homes, farms, ranches, or other real estate; and | ||
(2) owning bonds of one of those federal or state | ||
corporations or agencies instead of the real estate would be in the | ||
estate's best interests. (Tex. Prob. Code, Sec. 827(b) (part).) | ||
. (a) If a court orders | ||
the reconveyance of foreclosed real estate under Section 1158.352, | ||
vendor's lien notes shall be reserved for the total amount of the | ||
indebtedness due or for the total amount of bonds that the | ||
corporation or agency to which the application to redeem the real | ||
estate was submitted as described by Section 1158.352(1) is allowed | ||
to advance under the corporation's or agency's rules or | ||
regulations. | ||
(b) On obtaining the order for reconveyance, it shall be | ||
proper for the guardian to endorse and assign the reserved vendor's | ||
lien notes over to any one of the corporations or agencies described | ||
by Section 1158.352(1) in exchange for bonds of that corporation or | ||
agency. (Tex. Prob. Code, Sec. 827(b) (part).) | ||
[Sections 1158.354-1158.400 reserved for expansion] | ||
SUBCHAPTER I. SALE OF REAL ESTATE: PUBLIC SALE | ||
. (a) Except as otherwise | ||
provided by this title, the guardian of the estate shall advertise a | ||
public sale of real estate of the estate by a 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 include a | ||
reference to: | ||
(1) the order of sale; | ||
(2) the time, place, and required terms of sale; and | ||
(3) a brief description of the real estate to be sold. | ||
(b) The reference described by Subsection (a)(1) is not | ||
required to contain field notes, but if the real estate to be sold | ||
is rural property, the reference must include: | ||
(1) the name of the original survey of the real estate; | ||
(2) the number of acres the real estate consists of; | ||
(3) the location of the real estate in the county; and | ||
(4) the name by which the real estate is generally | ||
known. (Tex. Prob. Code, Sec. 828(a).) | ||
. A public sale of real estate | ||
of an estate shall be made at public auction to the highest bidder. | ||
(Tex. Prob. Code, Sec. 828(b).) | ||
. (a) Except as | ||
provided by Subsection (c), a public sale of real estate of an | ||
estate shall be made at: | ||
(1) the courthouse door in the county in which the | ||
guardianship proceedings are pending; or | ||
(2) another place in that county at which sales of real | ||
estate are specifically authorized to be made. | ||
(b) The sale must occur between 10 a.m. and 4 p.m. on the | ||
first Tuesday of the month after publication of notice has been | ||
completed. | ||
(c) If the court considers it advisable, the court may order | ||
the sale to be made in the county in which the real estate is | ||
located, in which event notice shall be published both in that | ||
county and in the county in which the proceedings are pending. | ||
(Tex. Prob. Code, Sec. 828(c).) | ||
. (a) A public sale of | ||
real estate of an estate that is not completed on the day advertised | ||
may be continued from day to day by an oral public announcement of | ||
the continuance made at the conclusion of the sale each day. | ||
(b) A continued sale must occur within the hours prescribed | ||
by Section 1158.403(b). | ||
(c) The continuance of a sale under this section shall be | ||
shown in the report of the sale made to the court. (Tex. Prob. Code, | ||
Sec. 828(d).) | ||
. (a) If a | ||
person who bids on real estate of the guardianship estate offered | ||
for sale at public auction fails to comply with the terms of the | ||
sale, the real estate shall be readvertised and sold without any | ||
further order. | ||
(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 | ||
sale. | ||
(c) The guardian shall recover the amounts under Subsection | ||
(b) by suit in any court in the county in which the sale was made | ||
that has jurisdiction over the amount claimed. (Tex. Prob. Code, | ||
Sec. 828(e).) | ||
[Sections 1158.406-1158.450 reserved for expansion] | ||
SUBCHAPTER J. SALE OF REAL ESTATE: PRIVATE SALE | ||
. A private sale of real | ||
estate of the estate shall be made in the manner the court directs | ||
in the order of sale. Unless the court directs otherwise, | ||
additional advertising, notice, or citation concerning the sale is | ||
not required. (Tex. Prob. Code, Sec. 829.) | ||
[Sections 1158.452-1158.500 reserved for expansion] | ||
SUBCHAPTER K. SALE OF EASEMENT OR RIGHT-OF-WAY | ||
. The guardian may sell and | ||
convey easements and rights-of-way on, under, and over the land of a | ||
guardianship estate that is being administered under court order, | ||
regardless of whether the sale proceeds are required to pay charges | ||
or claims against the estate, or for other lawful purposes. (Tex. | ||
Prob. Code, Sec. 830 (part).) | ||
. 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 sale of real property of | ||
a ward at private sale. (Tex. Prob. Code, Sec. 830 (part).) | ||
[Sections 1158.503-1158.550 reserved for expansion] | ||
SUBCHAPTER L. CONFIRMATION OF SALE OF REAL PROPERTY AND TRANSFER OF | ||
TITLE | ||
. A sale of estate real property shall | ||
be reported to the court ordering the sale not later than the 30th | ||
day after the date the sale is made. 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 sold; | ||
(C) the time and place of sale; | ||
(D) the purchaser's name; | ||
(E) the amount for which each parcel of property | ||
or interest in the parcel of property was sold; | ||
(F) the terms of the sale; | ||
(G) whether the sale was made at public auction | ||
or privately; and | ||
(H) whether the purchaser is ready to comply with | ||
the order of sale; and | ||
(3) be noted on the guardianship docket. (Tex. Prob. | ||
Code, Sec. 832.) | ||
. After the | ||
expiration of five days from the date a report of sale is filed | ||
under Section 1158.551, the court shall: | ||
(1) inquire into the manner in which the sale was made; | ||
(2) hear evidence in support of or against the report; | ||
and | ||
(3) determine the sufficiency or insufficiency of the | ||
guardian's general bond, if any has been required and given. (Tex. | ||
Prob. Code, Sec. 834 (part).) | ||
. | ||
If the guardian of the estate of a ward is not required by Subtitle D | ||
to give a general bond, the court may confirm the sale of estate | ||
real property in the manner provided by Section 1158.556(a) if the | ||
court finds that the sale is satisfactory and made in accordance | ||
with law. (Tex. Prob. Code, Sec. 833 (part).) | ||
. (a) If the guardian of | ||
an estate is required by Subtitle D to give a general bond, before | ||
the court confirms any sale 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 confirm the sale as provided by Section 1158.556(a). | ||
(c) If the court finds that the general bond is | ||
insufficient, the court may not confirm the sale until the general | ||
bond is increased to the amount required by the court, or an | ||
additional bond is given, and approved by the court. | ||
(d) An increase in the amount of the general bond, or the | ||
additional bond, as applicable under Subsection (c), must be equal | ||
to the sum of: | ||
(1) the amount for which the real estate is sold; and | ||
(2) any additional amount the court finds necessary | ||
and sets for the estate's protection. (Tex. Prob. Code, Sec. 833 | ||
(part).) | ||
. | ||
Notwithstanding Sections 1158.554(c) and (d), if the real estate | ||
sold is encumbered by a lien to secure a claim against the estate | ||
and is sold to the owner or holder of the secured claim in full | ||
payment, liquidation, and satisfaction of the claim, an increased | ||
general bond or additional bond may not be required except for the | ||
amount of any cash paid to the guardian of the estate in excess of | ||
the amount necessary to pay, liquidate, and satisfy the claim in | ||
full. (Tex. Prob. Code, Sec. 833 (part).) | ||
. (a) If | ||
the court is satisfied that a sale reported under Section 1158.551 | ||
was for a fair price, was properly made, and was in conformity with | ||
law, 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) confirming the sale; | ||
(2) showing conformity with the provisions of this | ||
chapter relating to the sale; | ||
(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 sale was for a | ||
fair price, was properly made, and was in conformity with law, the | ||
court shall issue an order setting aside the sale and ordering a new | ||
sale to be made, if necessary. | ||
(c) The court's action in confirming or disapproving a | ||
report of a sale has the 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. (Tex. Prob. Code, Sec. 834 | ||
(part).) | ||
. Real estate of an estate that is sold | ||
shall be conveyed by a proper deed that refers to and identifies the | ||
court order confirming the sale. The deed: | ||
(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 law. (Tex. Prob. Code, Sec. 835.) | ||
. (a) After the court has | ||
confirmed a sale and one purchaser has complied with the terms of | ||
the sale, the guardian of the estate shall execute and deliver to | ||
the purchaser a proper deed conveying the property. | ||
(b) If the sale is made partly on credit: | ||
(1) the vendor's lien securing a purchase money note | ||
must be expressly retained in the deed and may not be waived; and | ||
(2) before actual delivery of the deed to the | ||
purchaser, the purchaser shall execute and deliver to the guardian | ||
of the estate a vendor's lien note, with or without personal | ||
sureties as ordered by the court, and a deed of trust or mortgage on | ||
the property as additional security for the payment of the note. | ||
(c) On completion of the transaction, the guardian of the | ||
estate shall promptly file and record the deed of trust or mortgage | ||
in the appropriate records in the county in which the land is | ||
located. (Tex. Prob. Code, Sec. 836.) | ||
. (a) If the guardian of | ||
the estate neglects to comply with Section 1158.558, including to | ||
file the deed of trust securing a lien in the proper county, the | ||
guardian and the sureties on the guardian's bond shall, after | ||
complaint and citation, be held liable for the use of the estate and | ||
for all damages resulting from the guardian's neglect, and the | ||
court may remove the guardian. | ||
(b) Damages under this section may be recovered in a court | ||
of competent jurisdiction. (Tex. Prob. Code, Sec. 837.) | ||
[Sections 1158.560-1158.600 reserved for expansion] | ||
SUBCHAPTER M. PROCEDURE ON FAILURE TO APPLY FOR SALE | ||
. If the guardian | ||
of the estate of a ward neglects to apply for an order to sell | ||
sufficient property to pay charges and claims against the estate | ||
that have been allowed and approved or established by suit, an | ||
interested person, on written application, may have the guardian | ||
cited to appear and make a full exhibit of the estate's condition | ||
and show cause why a sale of the property should not be ordered. | ||
(Tex. Prob. Code, Sec. 826 (part).) | ||
. On hearing an application | ||
under Section 1158.601, if the court is satisfied that a sale of | ||
estate property is necessary or advisable to satisfy the charges | ||
and claims described by Section 1158.601, the court shall enter an | ||
order of sale as provided by Section 1158.256. (Tex. Prob. Code, | ||
Sec. 826 (part).) | ||
[Sections 1158.603-1158.650 reserved for expansion] | ||
SUBCHAPTER N. PURCHASE OF ESTATE PROPERTY BY GUARDIAN | ||
. Except as | ||
otherwise provided by Section 1158.652 or 1158.653, the guardian of | ||
the estate of a ward may not purchase, directly or indirectly, any | ||
estate property sold by the guardian or any co-representative of | ||
the guardian. (Tex. Prob. Code, Sec. 831(a).) | ||
. The guardian | ||
of the estate of a ward may purchase estate property in compliance | ||
with the terms of a written executory contract signed by the ward | ||
before the ward became incapacitated, including: | ||
(1) a contract for deed; | ||
(2) an earnest money contract; | ||
(3) a buy/sell agreement; and | ||
(4) a stock purchase or redemption agreement. (Tex. | ||
Prob. Code, Sec. 831(b).) | ||
. (a) The | ||
guardian of the estate may purchase estate property on the court's | ||
determination that the sale is in the estate's best interest. | ||
(b) In the case of an application filed by the guardian of | ||
the estate of a ward, the court shall appoint an attorney ad litem | ||
to represent the ward with respect to the sale. | ||
(c) The court may require notice for a sale made under this | ||
section. (Tex. Prob. Code, Sec. 831(c).) | ||
. (a) If | ||
the guardian of the estate of a ward purchases estate property in | ||
violation of this subchapter, a person interested in the estate may | ||
file a written complaint with the court in which the guardianship | ||
proceedings are pending. | ||
(b) On service of citation on the guardian on a complaint | ||
filed under Subsection (a) and after hearing and proof, the court | ||
shall: | ||
(1) declare the sale void; | ||
(2) set aside the sale; and | ||
(3) order the reconveyance of the property to the | ||
estate. | ||
(c) The court shall adjudge against the guardian all costs | ||
of the sale, protest, and suit, if found necessary. (Tex. Prob. | ||
Code, Sec. 831(d).) | ||
[Sections 1158.655-1158.700 reserved for expansion] | ||
SUBCHAPTER O. PARTITION OF WARD'S INTEREST IN REAL ESTATE | ||
. (a) The guardian of | ||
the estate of a ward may agree to a partition of real estate in which | ||
the ward owns an interest in common with one or more other part | ||
owners if, in the opinion of the guardian, it is in the best | ||
interests of the ward's estate to partition the real estate. | ||
(b) An agreement under Subsection (a) is subject to the | ||
approval of the court in which the guardianship proceeding is | ||
pending. (Tex. Prob. Code, Sec. 853(a).) | ||
AGREEMENT | ||
other part owners on how to partition real estate as described by | ||
Section 1158.701, the guardian shall file with the court in which | ||
the guardianship proceedings are pending an application to have the | ||
agreement approved by the court. | ||
(b) The application must: | ||
(1) describe the real estate to be divided; | ||
(2) state why it is in the best interests of the ward's | ||
estate to partition the real estate; and | ||
(3) show that the proposed partition agreement is fair | ||
and just to the ward's estate. (Tex. Prob. Code, Sec. 853(b).) | ||
. (a) The county clerk shall | ||
immediately call to the attention of the judge of the court in which | ||
the guardianship proceeding is pending the filing of an application | ||
required by Section 1158.702. The judge shall designate a day to | ||
hear the application. | ||
(b) The application must remain on file at least 10 days | ||
before any orders are entered. | ||
(c) The judge may continue a hearing held under this section | ||
from time to time until the judge is satisfied concerning the | ||
application. (Tex. Prob. Code, Sec. 853(c).) | ||
. If the judge is satisfied that the | ||
proposed partition of the real estate is in the best interests of | ||
the ward's estate, the court shall enter an order approving the | ||
partition and directing the guardian to execute the necessary | ||
agreement for the purpose of implementing the order and partition. | ||
(Tex. Prob. Code, Sec. 853(d).) | ||
RATIFICATION OF PARTITION AGREEMENT | ||
court approval as provided by this subchapter, executes or intends | ||
to execute an agreement to partition any real estate in which the | ||
ward has an interest, the guardian shall file with the court in | ||
which the guardianship proceedings are pending an application for | ||
the approval and ratification of the partition agreement. | ||
(b) The application must: | ||
(1) refer to the agreement in a manner in which the | ||
court can fully understand the nature of the partition and the real | ||
estate being divided; and | ||
(2) state that, in the opinion of the guardian, the | ||
agreement is fair and just to the ward's estate and is in the best | ||
interests of the estate. | ||
(c) On the filing of an application under Subsection (a), | ||
the court shall hold a hearing on the application as provided by | ||
Section 1158.703. The court shall enter an order ratifying and | ||
approving the partition agreement if the court is of the opinion | ||
that the partition is: | ||
(1) fairly made; and | ||
(2) in the best interests of the ward's estate. | ||
(d) On ratification and approval, the partition is | ||
effective and binding as if originally executed after a court | ||
order. (Tex. Prob. Code, Sec. 853(e).) | ||
. (a) The guardian of the | ||
estate of a ward may bring a suit in the court in which the | ||
guardianship proceeding is pending for the partition of any real | ||
estate that the ward owns in common with one or more other part | ||
owners if the guardian is of the opinion that it is in the best | ||
interests of the ward's estate that the real estate be partitioned. | ||
(b) The court may enter an order partitioning the real | ||
estate to the owner of the real estate, if after hearing the suit, | ||
the court is satisfied that the partition of the real estate is | ||
necessary. (Tex. Prob. Code, Sec. 853(f).) | ||
CHAPTER 1159. | RENTING ESTATE PROPERTY | |
SUBCHAPTER A. RENTAL AND RETURN OF ESTATE PROPERTY | ||
Sec. | 1159.001. RENTING ESTATE PROPERTY WITHOUT COURT | |
ORDER | ||
Sec. | 1159.002. RENTING ESTATE PROPERTY WITH COURT | |
ORDER | ||
Sec. 1159.003. ESTATE PROPERTY RENTED ON CREDIT | ||
Sec. 1159.004. CONDITION OF RETURNED ESTATE PROPERTY | ||
Sec. 1159.005. COMPLAINT FOR FAILURE TO RENT | ||
[Sections 1159.006-1159.050 reserved for expansion] | ||
SUBCHAPTER B. REPORT ON RENTED ESTATE PROPERTY | ||
Sec. 1159.051. REPORTS CONCERNING RENTALS | ||
Sec. 1159.052. COURT ACTION ON REPORT | ||
CHAPTER 1159. RENTING ESTATE PROPERTY | ||
SUBCHAPTER A. RENTAL AND RETURN OF ESTATE PROPERTY | ||
. | ||
(a) The guardian of an estate, without a court order, may rent any | ||
of the estate property for one year or less, at public auction or | ||
privately, as is considered to be in the best interests of the | ||
estate. | ||
(b) On the sworn complaint of any person interested in the | ||
estate, the court shall require a guardian of the estate who, | ||
without a court order, rents estate property to account to the | ||
estate for the reasonable value of the rent of the property, to be | ||
ascertained by the court on satisfactory evidence. (Tex. Prob. | ||
Code, Secs. 839, 840.) | ||
. | ||
(a) The guardian of an estate may file a written application with | ||
the court setting forth the property the guardian seeks to rent. If | ||
the proposed rental period is one year or more, the guardian of the | ||
estate shall file a written application with the court setting | ||
forth the property the guardian seeks to rent. | ||
(b) If the court finds that granting an application filed | ||
under Subsection (a) is in the interests of the estate, the court | ||
shall grant the application and issue an order that: | ||
(1) describes the property to be rented; and | ||
(2) states whether the property will be rented at | ||
public auction or privately, whether for cash or on credit, and if | ||
on credit, the extent of the credit and the period for which the | ||
property may be rented. | ||
(c) If, under Subsection (b), the court orders property to | ||
be rented at public auction, the court shall prescribe whether | ||
notice of the auction shall be published or posted. (Tex. Prob. | ||
Code, Sec. 841.) | ||
. (a) | ||
Possession of estate property rented on credit may not be delivered | ||
until the renter executes and delivers to the guardian of the estate | ||
a note with good personal security for the amount of the rent. If | ||
the property is delivered without the guardian receiving the | ||
required security, the guardian and the sureties on the guardian's | ||
bond are liable for the full amount of the rent. | ||
(b) Subsection (a) does not apply to a rental that is paid in | ||
installments in advance of the period to which the installments | ||
relate. (Tex. Prob. Code, Sec. 843.) | ||
. (a) | ||
Estate property that is rented must be returned to the estate's | ||
possession in as good a condition, except for reasonable wear and | ||
tear, as when the property was rented. | ||
(b) The guardian of the estate shall: | ||
(1) ensure that rented estate property is returned in | ||
the condition required by Subsection (a); | ||
(2) report to the court any damage to, or loss or | ||
destruction of, estate property rented under this chapter; and | ||
(3) ask the court for the authority to take any | ||
necessary action. | ||
(c) A guardian who fails to act as required by this section | ||
and the sureties on the guardian's bond are liable to the estate for | ||
any loss or damage suffered as a result of the guardian's failure. | ||
(Tex. Prob. Code, Sec. 844.) | ||
. (a) A person | ||
interested in a guardianship may: | ||
(1) file a written and sworn complaint in the court in | ||
which the estate is pending; and | ||
(2) have the guardian of the estate cited to appear and | ||
show cause why the guardian did not rent any estate property. | ||
(b) The court, on hearing the complaint, shall issue an | ||
order that is in the best interests of the estate. (Tex. Prob. | ||
Code, Sec. 842.) | ||
[Sections 1159.006-1159.050 reserved for expansion] | ||
SUBCHAPTER B. REPORT ON RENTED ESTATE PROPERTY | ||
. (a) A guardian | ||
of an estate who rents estate property with an appraised value of | ||
$3,000 or more, not later than the 30th day after the date of the | ||
rental, shall file with the court a sworn and written report | ||
stating: | ||
(1) the property rented and the property's appraised | ||
value; | ||
(2) the date the property was rented and whether the | ||
rental occurred at public auction or privately; | ||
(3) the name of the person renting the property; | ||
(4) the rental amount; | ||
(5) whether the rental was for cash or on credit; and | ||
(6) if the rental was on credit, the length of time, | ||
the terms, and the security received for the credit. | ||
(b) A guardian of an estate who rents estate property with | ||
an appraised value of less than $3,000 may report the rental in the | ||
next annual or final account that must be filed as required by law. | ||
(Tex. Prob. Code, Sec. 845.) | ||
. (a) After the fifth | ||
day after the date the report of the rental is filed, the court | ||
shall: | ||
(1) examine the report; and | ||
(2) by order approve and confirm the rental if the | ||
court finds the rental just and reasonable. | ||
(b) If the court disapproves the rental, the guardianship is | ||
not bound and the court may order another offering for rent of the | ||
property in the same manner and subject to the provisions of this | ||
chapter. | ||
(c) If the court approves the rental and it later appears | ||
that, by reason of the fault of the guardian of the estate, the | ||
property was not rented for the property's reasonable value, the | ||
court shall have the guardian and the sureties on the guardian's | ||
bond appear and show cause why the reasonable value of the rental of | ||
the property should not be adjudged against the guardian or | ||
sureties. (Tex. Prob. Code, Sec. 846.) | ||
CHAPTER 1160. | MATTERS RELATING TO MINERAL PROPERTIES | |
SUBCHAPTER A. GENERAL PROVISIONS | ||
Sec. 1160.001. DEFINITIONS | ||
[Sections 1160.002-1160.050 reserved for expansion] | ||
SUBCHAPTER B. MINERAL LEASES AFTER PUBLIC NOTICE | ||
Sec. 1160.051. AUTHORIZATION FOR LEASING OF MINERALS | ||
Sec. 1160.052. LEASE APPLICATION | ||
Sec. | 1160.053. SCHEDULING OF HEARING ON APPLICATION; | |
CONTINUANCE | ||
Sec. 1160.054. NOTICE OF HEARING ON APPLICATION | ||
Sec. | 1160.055. REQUIREMENTS REGARDING ORDER AND NOTICE | |
MANDATORY | ||
Sec. 1160.056. HEARING ON APPLICATION; ORDER | ||
Sec. | 1160.057. MAKING OF LEASE ON GRANTING OF | |
APPLICATION | ||
Sec. 1160.058. BOND REQUIREMENTS | ||
Sec. 1160.059. TERM OF LEASE BINDING | ||
Sec. | 1160.060. AMENDMENT OF LEASE REGARDING EFFECT OF | |
SHUT-IN GAS WELL | ||
[Sections 1160.061-1160.100 reserved for expansion] | ||
SUBCHAPTER C. MINERAL LEASES AT PRIVATE SALE | ||
Sec. | 1160.101. AUTHORIZATION FOR LEASING OF MINERALS | |
AT PRIVATE SALE | ||
Sec. | 1160.102. ACTION OF COURT IF PUBLIC ADVERTISING | |
NOT REQUIRED | ||
[Sections 1160.103-1160.150 reserved for expansion] | ||
SUBCHAPTER D. POOLING OR UNITIZATION OF ROYALTIES OR MINERALS | ||
Sec. | 1160.151. AUTHORIZATION FOR POOLING OR | |
UNITIZATION | ||
Sec. 1160.152. POOLING OR UNITIZATION APPLICATION | ||
Sec. 1160.153. NOTICE NOT REQUIRED | ||
Sec. 1160.154. HEARING ON APPLICATION | ||
Sec. 1160.155. ACTION OF COURT AND CONTENTS OF ORDER | ||
[Sections 1160.156-1160.200 reserved for expansion] | ||
SUBCHAPTER E. SPECIAL ANCILLARY INSTRUMENTS THAT MAY BE EXECUTED | WITHOUT COURT ORDER | |
WITHOUT COURT ORDER | ||
Sec. | 1160.201. AUTHORIZATION FOR EXECUTION OF CERTAIN | |
INSTRUMENTS | ||
[Sections 1160.202-1160.250 reserved for expansion] | ||
SUBCHAPTER F. PROCEDURE IF GUARDIAN OF ESTATE NEGLECTS TO APPLY FOR | AUTHORITY | |
AUTHORITY | ||
Sec. 1160.251. APPLICATION TO SHOW CAUSE | ||
Sec. 1160.252. HEARING ON APPLICATION | ||
Sec. 1160.253. ORDER | ||
Sec. | 1160.254. PROCEDURE TO BE FOLLOWED AFTER ENTRY OF | |
ORDER | ||
CHAPTER 1160. MATTERS RELATING TO MINERAL PROPERTIES | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
. In this chapter: | ||
(1) "Gas" includes all liquid hydrocarbons in the | ||
gaseous phase in the reservoir. | ||
(2) "Land" includes minerals or an interest in | ||
minerals in place. | ||
(3) "Mineral development" includes exploration for, | ||
whether by geophysical or other means, drilling for, mining for, | ||
development of, operations in connection with, production of, and | ||
saving of oil, other liquid hydrocarbons, gas, gaseous elements, | ||
sulphur, metals, and all other minerals, whether solid or | ||
otherwise. | ||
(4) "Property" includes land, minerals in place, | ||
whether solid, liquid, or gaseous, and an interest of any kind in | ||
the property, including a royalty interest, owned by an estate. | ||
(Tex. Prob. Code, Sec. 847(a); New.) | ||
[Sections 1160.002-1160.050 reserved for expansion] | ||
SUBCHAPTER B. MINERAL LEASES AFTER PUBLIC NOTICE | ||
. (a) | ||
The court in which a guardianship proceeding is pending may | ||
authorize the guardian, acting solely under a court order, to make, | ||
execute, and deliver a lease, with or without a unitization clause | ||
or pooling provision, providing for the exploration for and | ||
development and production of oil, other liquid hydrocarbons, gas, | ||
metals and other solid minerals, and other minerals, or any of those | ||
minerals in place, belonging to the estate. | ||
(b) A lease authorized by Subsection (a) must be made and | ||
entered into under and in conformity with this subchapter. (Tex. | ||
Prob. Code, Secs. 847(b), (c).) | ||
. (a) The guardian of the | ||
estate shall file with the court a written application for | ||
authority to lease estate property for mineral exploration and | ||
development, with or without a pooling provision or unitization | ||
clause. | ||
(b) The lease application must: | ||
(1) describe the property fully enough by reference to | ||
the amount of acreage, the survey name or number, or the abstract | ||
number, or by another method that adequately identifies the | ||
property and the property's location in the county in which the | ||
property is located; | ||
(2) specify the interest thought to be owned by the | ||
estate, if less than the whole, but request authority to include all | ||
of the interest owned by the estate if that is the intention; and | ||
(3) set out the reasons the estate property described | ||
in the application should be leased. | ||
(c) The lease application is not required to set out or | ||
suggest: | ||
(1) the name of any proposed lessee; or | ||
(2) the terms, provisions, or form of any desired | ||
lease. (Tex. Prob. Code, Sec. 847(d).) | ||
CONTINUANCE | ||
application under Section 1160.052, the county clerk shall call the | ||
filing of the application to the court's attention. The judge shall | ||
promptly make and enter a brief order designating the time and place | ||
for hearing the application. | ||
(b) If the hearing is not held at the time originally | ||
designated by the court or by a timely continuance order entered, | ||
the hearing shall be continued automatically without further notice | ||
to the same time on the following day, other than Sundays and | ||
holidays on which the county courthouse is officially closed, and | ||
from day to day until the lease application is finally acted on and | ||
disposed of by court order. Notice of an automatic continuance is | ||
not required. (Tex. Prob. Code, Sec. 847(e).) | ||
. (a) At | ||
least 10 days before the date set for the hearing on a lease | ||
application filed under Section 1160.052, excluding the date of | ||
notice and the date set for the hearing, the guardian of the estate | ||
shall give notice of the hearing by: | ||
(1) publishing the notice in one issue of a newspaper | ||
of general circulation in the county in which the proceeding is | ||
pending; or | ||
(2) if there is no newspaper in the county, posting the | ||
notice or having the notice posted. | ||
(b) If the notice is published, the date of notice is the | ||
date printed on the newspaper. | ||
(c) The notice must: | ||
(1) be dated; | ||
(2) be directed to all persons interested in the | ||
estate; | ||
(3) state the date on which the lease application was | ||
filed; | ||
(4) describe briefly the property sought to be leased; | ||
(5) specify the fractional interest sought to be | ||
leased if less than the entire interest in the tract identified; and | ||
(6) state the time and place designated by the judge | ||
for the hearing. (Tex. Prob. Code, Sec. 847(f).) | ||
MANDATORY | ||
accordance with a lease application filed under Section 1160.052 is | ||
void in the absence of: | ||
(1) a written order originally designating a time and | ||
place for the hearing; | ||
(2) a notice issued by the guardian of the estate in | ||
compliance with the order; and | ||
(3) proof of publication or posting of the notice as | ||
required under Section 1160.054. (Tex. Prob. Code, Sec. 847(g).) | ||
. (a) At the | ||
time and place designated for the hearing under Section | ||
1160.053(a), or at the time to which the hearing is continued as | ||
provided by Section 1160.053(b), the judge shall: | ||
(1) hear a lease application filed under Section | ||
1160.052; and | ||
(2) require proof as to the necessity or advisability | ||
of leasing for mineral development the property described in the | ||
application and the notice. | ||
(b) The judge shall enter an order authorizing one or more | ||
leases affecting and covering the property or portions of property | ||
described in the lease application, with or without pooling | ||
provisions or unitization clauses, and with or without cash | ||
consideration if considered by the court to be in the best interest | ||
of the estate, if the judge is satisfied that: | ||
(1) the application is in proper form; | ||
(2) notice has been given in the manner and for the | ||
time required by law; | ||
(3) proof of necessity or advisability of leasing is | ||
sufficient; and | ||
(4) the application should be granted. | ||
(c) The order must contain: | ||
(1) the name of the lessee; | ||
(2) any actual cash consideration to be paid by the | ||
lessee; | ||
(3) a finding that the requirements of Subsection (b) | ||
have been satisfied; and | ||
(4) one of the following findings: | ||
(A) a finding that the guardian of the estate is | ||
exempt by law from giving a bond; or | ||
(B) if the guardian of the estate is required to | ||
give a bond, a finding as to whether the guardian's general bond on | ||
file is sufficient to protect the personal property on hand, | ||
including any cash bonus to be paid. | ||
(d) If the court finds the general bond insufficient to meet | ||
the requirements of Subsection (c)(4)(B), the order must show the | ||
amount of increased or additional bond required to cover the | ||
deficiency. | ||
(e) A complete exhibit copy, either written or printed, of | ||
each authorized lease must be set out in, attached to, incorporated | ||
by reference in, or made part of the order. The exhibit copy must | ||
show: | ||
(1) the name of the lessee; | ||
(2) the date of the lease; | ||
(3) an adequate description of the property being | ||
leased; | ||
(4) any delay rental to be paid to defer commencement | ||
of operations; and | ||
(5) all other authorized terms and provisions. | ||
(f) If the date of a lease does not appear in the exhibit | ||
copy of the lease or in the order, the date of the order is | ||
considered for all purposes to be the date of the lease. | ||
(g) If the name or address of a depository bank for | ||
receiving rental is not shown in the exhibit copy of a lease, the | ||
guardian of the estate may insert the name or address, or cause the | ||
name or address to be inserted, in the lease at the time of the | ||
lease's execution or at any other time agreeable to the lessee or | ||
the lessee's successors or assigns. (Tex. Prob. Code, Secs. | ||
847(h), (i).) | ||
. | ||
(a) If on the hearing of a lease application filed under Section | ||
1160.052 the court grants the application, the guardian of the | ||
estate may make the lease, as evidenced by the exhibit copies, in | ||
accordance with the order. | ||
(b) The lease must be made not later than the 30th day after | ||
the date of the order unless an extension is granted by the court on | ||
a sworn application showing good cause. | ||
(c) It is not necessary for the judge to make an order | ||
confirming the lease. (Tex. Prob. Code, Sec. 847(j) (part).) | ||
. (a) Unless the guardian | ||
of the estate is not required to give a general bond, a lease for | ||
which a cash consideration is required, although ordered, executed, | ||
and delivered, is not valid: | ||
(1) unless the order authorizing the lease makes a | ||
finding with respect to the general bond; and | ||
(2) if the general bond has been found insufficient, | ||
until: | ||
(A) the bond has been increased or an additional | ||
bond given with the sureties required by law, as required by the | ||
order; and | ||
(B) the increased or additional bond has been | ||
approved by the judge and filed with the clerk of the court in which | ||
the proceeding is pending. | ||
(b) If two or more leases of different land are authorized | ||
by the same order, the general bond shall be increased or additional | ||
bonds given to cover all of the leases. (Tex. Prob. Code, Sec. | ||
847(j) (part).) | ||
. A lease executed and | ||
delivered in compliance with this subchapter is valid and binding | ||
on the property or interest owned by the estate and covered by the | ||
lease for the full term provided by the lease, subject only to the | ||
lease's terms and conditions, even if the primary term extends | ||
beyond the date the estate is closed in accordance with law. For | ||
the lease to be valid and binding under this subchapter, the | ||
authorized primary term of the lease may not exceed five years, | ||
subject to the lease terms and provisions extending the lease | ||
beyond the primary term by: | ||
(1) paying production; | ||
(2) bona fide drilling or reworking operations, | ||
whether in or on the same well or wells or an additional well or | ||
wells without a cessation of operations of more than 60 consecutive | ||
days before production has been restored or obtained; or | ||
(3) a shut-in gas well. (Tex. Prob. Code, Sec. | ||
847(k).) | ||
SHUT-IN GAS WELL | ||
guardian of an estate under this chapter or former Chapter XIII, | ||
Texas Probate Code, may be amended by an instrument that provides | ||
that a shut-in gas well on the land covered by the lease or on land | ||
pooled with all or part of the land covered by the lease continues | ||
the lease in effect after the lease's five-year primary term. | ||
(b) The guardian of the estate, with court approval, shall | ||
execute the instrument according to the terms and conditions | ||
prescribed in the instrument. (Tex. Prob. Code, Sec. 847(m).) | ||
[Sections 1160.061-1160.100 reserved for expansion] | ||
SUBCHAPTER C. MINERAL LEASES AT PRIVATE SALE | ||
PRIVATE SALE | ||
setting a time and place for hearing a lease application under | ||
Subchapter B and the issuance, service, and return of notice, the | ||
court may authorize the making of oil, gas, and mineral leases at a | ||
private sale without public notice or advertising if, in the | ||
court's opinion, facts are set out in the application sufficient to | ||
show that it would be more advantageous to the estate that a lease | ||
be made privately and without compliance with those mandatory | ||
requirements. | ||
(b) Leases authorized under this subchapter may include | ||
pooling provisions or unitization clauses as in other cases. (Tex. | ||
Prob. Code, Sec. 848(a).) | ||
REQUIRED | ||
day after the filing date of an application to lease at a private | ||
sale and without an order setting the hearing time and place, the | ||
court shall: | ||
(1) hear the application; | ||
(2) inquire into the manner in which the proposed | ||
lease has been or will be made; and | ||
(3) hear evidence for or against the application. | ||
(b) If the court is satisfied that the lease has been or will | ||
be made for a fair and sufficient consideration and on fair terms | ||
and has been or will be properly made in conformity with law, the | ||
court shall enter an order authorizing the execution of the lease | ||
without the necessity of advertising, notice, or citation. The | ||
order must comply in all other respects with the requirements | ||
essential to the validity of mineral leases set out in Subchapter B | ||
as if advertising or notice were required. | ||
(c) An order that confirms a lease made at a private sale | ||
does not need to be issued. A lease made at a private sale is not | ||
valid until any increased or additional bond required by the court | ||
has been approved by the court and filed with the court clerk. | ||
(Tex. Prob. Code, Sec. 848(b).) | ||
[Sections 1160.103-1160.150 reserved for expansion] | ||
SUBCHAPTER D. POOLING OR UNITIZATION OF ROYALTIES OR MINERALS | ||
. | ||
(a) If an existing lease on property owned by an estate being | ||
administered does not adequately provide for pooling or | ||
unitization, the court in which the proceeding is pending may, in | ||
the manner provided by this subchapter, authorize the commitment of | ||
royalty or mineral interests in oil, liquid hydrocarbons, gas, | ||
gaseous elements, and other minerals or any one or more of them | ||
owned by the estate to agreements that provide for the operation of | ||
areas as a pool or unit for the exploration for, development of, and | ||
production of all of those minerals, if the court finds that: | ||
(1) the pool or unit to which the agreement relates | ||
will be operated in a manner that protects correlative rights or | ||
prevents the physical or economic waste of oil, liquid | ||
hydrocarbons, gas, gaseous elements, or other minerals subject to | ||
the agreement; and | ||
(2) it is in the best interests of the estate to | ||
execute the agreement. | ||
(b) An agreement authorized under Subsection (a) may | ||
provide that: | ||
(1) operations incident to the drilling of or | ||
production from a well on any portion of a pool or unit are | ||
considered for all purposes to be the conduct of operations on or | ||
production from each separately owned tract in the pool or unit; | ||
(2) any lease covering any part of the area committed | ||
to a pool or unit continues in effect in its entirety as long as: | ||
(A) oil, gas, or other minerals subject to the | ||
agreement are produced in paying quantities from any part of the | ||
pooled or unitized area; | ||
(B) operations are conducted as provided in the | ||
lease on any part of the pooled or unitized area; or | ||
(C) there is a shut-in gas well on any part of the | ||
pooled or unitized area, if the presence of the shut-in gas well is | ||
a ground for continuation of the lease under the terms of the lease; | ||
(3) the production allocated by the agreement to each | ||
tract included in a pool or unit shall, when produced, be considered | ||
for all purposes to have been produced from the tract by a well | ||
drilled on the tract; | ||
(4) the royalties provided for on production from any | ||
tract or portion of a tract within the pool or unit shall be paid | ||
only on that portion of the production allocated to the tract in | ||
accordance with the agreement; | ||
(5) the dry gas, before or after extraction of | ||
hydrocarbons, may be returned to a formation underlying any land or | ||
leases committed to the agreement, and that royalties are not | ||
required to be paid on the gas returned; and | ||
(6) gas obtained from other sources or another tract | ||
of land may be injected into a formation underlying any land or | ||
lease committed to the agreement, and that royalties are not | ||
required to be paid on the gas injected when the gas is produced | ||
from the unit. (Tex. Prob. Code, Secs. 849(a), (b).) | ||
. (a) | ||
The guardian of the estate shall file with the county clerk of the | ||
county in which the guardianship proceeding is pending a written | ||
application for authority to: | ||
(1) enter into a pooling or unitization agreement | ||
supplementing, amending, or otherwise relating to any existing | ||
lease covering property owned by the estate; or | ||
(2) commit royalties or other interests in minerals, | ||
whether or not subject to a lease, to a pooling or unitization | ||
agreement. | ||
(b) The pooling or unitization application must also: | ||
(1) sufficiently describe the property as required in | ||
an original lease application; | ||
(2) describe briefly the lease to which the interest | ||
of the estate is subject; and | ||
(3) set out the reasons the proposed agreement | ||
concerning the property should be entered into. | ||
(c) A copy of the proposed agreement must be attached to the | ||
pooling or unitization application and made a part of the | ||
application by reference. | ||
(d) The agreement may not be recorded in the judge's | ||
guardianship docket. | ||
(e) Immediately after the pooling or unitization | ||
application is filed, the clerk shall call the application to the | ||
judge's attention. (Tex. Prob. Code, Sec. 849(c).) | ||
. Notice by advertising, | ||
citation, or otherwise of the filing of a pooling or unitization | ||
application under Section 1160.152 is not required. (Tex. Prob. | ||
Code, Sec. 849(d).) | ||
. (a) The judge may | ||
hold a hearing on a pooling or unitization application filed under | ||
Section 1160.152 at any time agreeable to the parties to the | ||
proposed agreement. | ||
(b) The judge shall hear evidence and determine to the | ||
judge's satisfaction whether it is in the best interests of the | ||
estate that the proposed agreement be authorized. | ||
(c) The hearing may be continued from day to day and from | ||
time to time as the court finds necessary. (Tex. Prob. Code, Sec. | ||
849(e).) | ||
. (a) | ||
The court shall enter an order setting out the court's findings and | ||
authorizing execution of the proposed pooling or unitization | ||
agreement, with or without payment of cash consideration according | ||
to the agreement, if the court finds that: | ||
(1) the pool or unit to which the agreement relates | ||
will be operated in a manner that protects correlative rights or | ||
prevents the physical or economic waste of oil, liquid | ||
hydrocarbons, gas, gaseous elements, or other minerals subject to | ||
the pool or unit; | ||
(2) it is in the best interests of the estate that the | ||
agreement be executed; and | ||
(3) the agreement conforms substantially with the | ||
permissible provisions of Section 1160.151. | ||
(b) If cash consideration is to be paid for the pooling or | ||
unitization agreement, the court shall make a finding as to the | ||
necessity of increased or additional bond as a finding is made in | ||
the making of leases on payment of the cash bonus for the lease. The | ||
agreement is not valid until any required increased or additional | ||
bond has been approved by the judge and filed with the clerk. | ||
(c) If the effective date of the pooling or unitization | ||
agreement is not stipulated in the agreement, the effective date of | ||
the agreement is the date of the court's order. (Tex. Prob. Code, | ||
Sec. 849(f).) | ||
[Sections 1160.156-1160.200 reserved for expansion] | ||
SUBCHAPTER E. SPECIAL ANCILLARY INSTRUMENTS THAT MAY BE EXECUTED | ||
WITHOUT COURT ORDER | ||
INSTRUMENTS | ||
agreement, executed on behalf of an estate before September 1, | ||
1993, pursuant to provisions, or executed by a former owner of land, | ||
minerals, or royalty affected by the lease or agreement, the | ||
guardian of the estate being administered, without further court | ||
order and without consideration, may execute: | ||
(1) division orders; | ||
(2) transfer orders; | ||
(3) instruments of correction; | ||
(4) instruments designating depository banks for the | ||
receipt of delay rentals or shut-in gas well royalty to accrue or | ||
become payable under the terms of the lease; or | ||
(5) similar instruments relating to the lease or | ||
agreement and the property covered by the lease or agreement. (Tex. | ||
Prob. Code, Sec. 850.) | ||
[Sections 1160.202-1160.250 reserved for expansion] | ||
SUBCHAPTER F. PROCEDURE IF GUARDIAN OF ESTATE NEGLECTS TO APPLY FOR | ||
AUTHORITY | ||
. If a guardian of | ||
an estate neglects to apply for authority to subject estate | ||
property to a lease for mineral development, pooling, or | ||
unitization, or authority to commit royalty or another interest in | ||
minerals to pooling or unitization, any person interested in the | ||
estate may, on written application filed with the county clerk, | ||
have the guardian cited to show cause why it is not in the best | ||
interests of the estate to make the lease or enter into an | ||
agreement. (Tex. Prob. Code, Sec. 851 (part).) | ||
. (a) The county | ||
clerk shall immediately call the filing of an application under | ||
Section 1160.251 to the attention of the judge of the court in which | ||
the guardianship proceeding is pending. | ||
(b) The judge shall set a time and place for a hearing on the | ||
application, and the guardian of the estate shall be cited to appear | ||
and show cause why the execution of a lease or agreement described | ||
by Section 1160.251 should not be ordered. (Tex. Prob. Code, Sec. | ||
851 (part).) | ||
. On a hearing conducted under Section | ||
1160.252 and if satisfied from the evidence that it would be in the | ||
best interests of the estate, the court shall enter an order | ||
requiring the guardian of the estate to file an application to | ||
subject the estate property to a lease for mineral development, | ||
with or without pooling or unitization provisions, or to commit | ||
royalty or other minerals to pooling or unitization, as | ||
appropriate. (Tex. Prob. Code, Sec. 851 (part).) | ||
ORDER | ||
procedures prescribed with respect to an original lease | ||
application, or with respect to an original application for | ||
authority to commit royalty or minerals to pooling or unitization, shall be followed. (Tex. Prob. Code, Sec. 851 (part).) | ||
CHAPTER 1161. INVESTMENTS AND LOANS OF ESTATES OF WARDS | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Sec. 1161.001. GUARDIAN'S DUTY TO KEEP ESTATE INVESTED | ||
Sec. | 1161.002. STANDARD FOR MANAGEMENT AND INVESTMENT | |
OF ESTATE | ||
Sec. | 1161.003. INVESTMENTS THAT MEET STANDARD FOR | |
INVESTMENT | ||
Sec. | 1161.004. RESTRICTIONS ON INVESTMENT IN CERTAIN | |
BONDS | ||
Sec. | 1161.005. MODIFICATION OR ELIMINATION OF DUTY OR | |
STANDARD | ||
Sec. 1161.006. RETENTION OF CERTAIN ASSETS | ||
Sec. 1161.007. HEARING TO PROTECT ESTATE | ||
Sec. | 1161.008. LIABILITY OF GUARDIAN AND GUARDIAN'S | |
SURETY | ||
[Sections 1161.009-1161.050 reserved for expansion] | ||
SUBCHAPTER B. | PROCEDURE FOR MAKING INVESTMENTS OR LOANS OR RETAINING ESTATE ASSETS | |
RETAINING ESTATE ASSETS | ||
Sec. 1161.051. PROCEDURE IN GENERAL | ||
Sec. 1161.052. COURT ACTION | ||
Sec. | 1161.053. APPLICABILITY OF PROCEDURE TO CERTAIN | |
ASSETS | ||
Sec. | 1161.054. INAPPLICABILITY OF PROCEDURE TO CERTAIN | |
ASSETS | ||
[Sections 1161.055-1161.100 reserved for expansion] | ||
SUBCHAPTER C. | INVESTMENTS IN CERTAIN INSURANCE OR ANNUITIES | |
Sec. 1161.101. DEFINITION | ||
Sec. | 1161.102. AUTHORITY TO INVEST IN CERTAIN | |
INSURANCE OR ANNUITIES | ||
Sec. 1161.103. INVESTMENT REQUIREMENTS | ||
Sec. | 1161.104. PROCEDURE FOR INVESTING IN INSURANCE OR | |
ANNUITIES | ||
Sec. | 1161.105. CONTINUATION OF PREEXISTING POLICIES OR | |
ANNUITIES | ||
Sec. | 1161.106. CONTROL AND OWNERSHIP OF POLICIES OR | |
ANNUITIES | ||
[Sections 1161.107-1161.150 reserved for expansion] | ||
SUBCHAPTER D. | INVESTMENTS IN REAL ESTATE | |
Sec. | 1161.151. AUTHORITY TO INVEST IN REAL ESTATE; | |
PROCEDURE AND REQUIREMENTS | ||
Sec. 1161.152. COURT AUTHORIZATION TO MAKE INVESTMENTS | ||
Sec. 1161.153. COURT APPROVAL OF CONTRACTS REQUIRED | ||
[Sections 1161.154-1161.200 reserved for expansion] | ||
SUBCHAPTER E. | LOANS AND SECURITY FOR LOANS | |
Sec. 1161.201. INAPPLICABILITY OF SUBCHAPTER | ||
Sec. 1161.202. AUTHORITY TO MAKE LOANS | ||
Sec. 1161.203. LOAN REQUIREMENTS | ||
Sec. 1161.204. GUARDIAN'S DUTY TO REPORT LOAN TO COURT | ||
Sec. 1161.205. GUARDIAN'S LIABILITY | ||
CHAPTER 1161. INVESTMENTS AND LOANS OF ESTATES OF WARDS | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
. | ||
(a) The guardian of the estate shall invest any funds and assets of | ||
a ward's estate available for investment except: | ||
(1) if the court orders otherwise under this chapter; | ||
or | ||
(2) as provided by Subsection (b). | ||
(b) The guardian of the estate is not required to invest | ||
funds that are immediately necessary for the education, support, | ||
and maintenance of the ward or any others the ward supports as | ||
provided by this title. (Tex. Prob. Code, Sec. 854(a).) | ||
ESTATE | ||
retaining, selling, supervising, and managing a ward's estate, a | ||
guardian of the estate shall exercise the judgment and care under | ||
the circumstances then prevailing that a person of ordinary | ||
prudence, discretion, and intelligence exercises in the management | ||
of the person's own affairs, considering the probable income from, | ||
probable increase in value of, and safety of the person's capital. | ||
The guardian shall also consider all other relevant factors, | ||
including: | ||
(1) the anticipated costs of supporting the ward; | ||
(2) the ward's age, education, current income, ability | ||
to earn additional income, net worth, and liabilities; | ||
(3) the nature of the ward's estate; and | ||
(4) any other resources reasonably available to the | ||
ward. | ||
(b) In determining whether a guardian of the estate has | ||
exercised the standard of investment required by this section with | ||
respect to an investment decision, the court shall, absent fraud or | ||
gross negligence, consider the investment of all the estate assets | ||
over which the guardian has management or control, rather than | ||
considering the prudence of only a single investment made by the | ||
guardian. (Tex. Prob. Code, Secs. 855(a), (a-1).) | ||
INVESTMENT | ||
exercised the standard required by Section 1161.002(a) with respect | ||
to investing the ward's estate if the guardian invests in the | ||
following: | ||
(1) bonds or other obligations of the United States; | ||
(2) tax-supported bonds of this state; | ||
(3) except as limited by Sections 1161.004(b) and (c), | ||
tax-supported bonds of a county, district, political subdivision, | ||
or municipality in this state; | ||
(4) if the payment of the shares or share accounts is | ||
insured by the Federal Deposit Insurance Corporation, shares or | ||
share accounts of: | ||
(A) a state savings and loan association or | ||
savings bank that has its main office or a branch office in this | ||
state; or | ||
(B) a federal savings and loan association or | ||
savings bank that has its main office or a branch office in this | ||
state; | ||
(5) collateral bonds that: | ||
(A) are issued by a company incorporated under | ||
the laws of this state that has a paid-in capital of $1 million or | ||
more; | ||
(B) are a direct obligation of the company; and | ||
(C) are specifically secured by first mortgage | ||
real estate notes or other securities pledged with a trustee; or | ||
(6) interest-bearing time deposits that may be | ||
withdrawn on or before one year after demand in a bank that does | ||
business in this state, if the payment of the time deposits is | ||
insured by the Federal Deposit Insurance Corporation. (Tex. Prob. | ||
Code, Sec. 855(b).) | ||
. | ||
(a) In this section, "net funded debt" means the total funded debt | ||
less sinking funds on hand. | ||
(b) A guardian of the estate may purchase the bonds of a | ||
county, district, or political subdivision other than a | ||
municipality only if the net funded debt of the county, district, or | ||
political subdivision that issues the bonds does not exceed 10 | ||
percent of the assessed value of taxable property in the county, | ||
district, or political subdivision. | ||
(c) A guardian of the estate may purchase the bonds of a | ||
municipality only if the net funded debt of the municipality does | ||
not exceed 10 percent of the assessed value of taxable property in | ||
the municipality less that part of the debt incurred for | ||
acquisition or improvement of revenue-producing utilities, the | ||
revenue of which is not pledged to support other obligations of the | ||
municipality. | ||
(d) Subsections (b) and (c) do not apply to bonds issued for | ||
road purposes in this state under Section 52, Article III, Texas | ||
Constitution, that are supported by a tax unlimited as to rate or | ||
amount. (Tex. Prob. Code, Secs. 855(c), (d), (e), (f).) | ||
STANDARD | ||
action is in the best interests of the ward and the ward's estate, | ||
the court may modify or eliminate: | ||
(1) the duty of the guardian of the estate to keep the | ||
estate invested; or | ||
(2) the standard required by Section 1161.002(a) with | ||
regard to investments of estate assets. (Tex. Prob. Code, Sec. | ||
855(g).) | ||
. (a) Without | ||
court approval a guardian of the estate may retain until the first | ||
anniversary of the date of receipt any property received into the | ||
guardianship estate at the estate's inception or added to the | ||
estate by gift, devise, inheritance, mutation, or increase, without | ||
regard to diversification of investments and without liability for | ||
any depreciation or loss resulting from the retention. | ||
(b) The guardian shall care for and manage the retained | ||
assets as a person of ordinary prudence, discretion, and | ||
intelligence would in caring for and managing the person's own | ||
affairs. | ||
(c) On application and a hearing, the court may issue an | ||
order authorizing the guardian to continue retaining the property | ||
after the period prescribed by Subsection (a) if the retention is an | ||
element of the guardian's investment plan as provided by Subchapter | ||
B. (Tex. Prob. Code, Sec. 855A.) | ||
. (a) The court | ||
may, on the court's own motion or on written request of a person | ||
interested in the guardianship, cite the guardian of the estate to | ||
appear and show cause why the estate is not invested or not properly | ||
invested. | ||
(b) Except as provided by Subsection (d), at any time after | ||
giving notice to all parties, the court may conduct a hearing to | ||
protect the estate. | ||
(c) On the hearing of the court's motion or a request made | ||
under this section, the court shall issue an order the court | ||
considers to be in the ward's best interests. | ||
(d) The court may not hold a final hearing on whether the | ||
estate is properly invested until the 31st day after the date the | ||
guardian is originally cited to appear under Subsection (a). | ||
(e) The court may appoint a guardian ad litem for the | ||
limited purpose of representing the ward's best interests with | ||
respect to the investment of the ward's property at a hearing under | ||
this section. (Tex. Prob. Code, Secs. 854(b), (c).) | ||
. | ||
(a) In addition to any other remedy authorized by law, if the | ||
guardian of the estate fails to invest or lend estate assets in the | ||
manner provided by this chapter, the guardian and the guardian's | ||
surety are liable for the principal and the greater of: | ||
(1) the highest legal rate of interest on the | ||
principal during the period the guardian failed to invest or lend | ||
the assets; or | ||
(2) the overall return that would have been made on the | ||
principal if the principal were invested in the manner provided by | ||
this chapter. | ||
(b) In addition to the liability under Subsection (a), the | ||
guardian and the guardian's surety are liable for attorney's fees, | ||
litigation expenses, and costs related to a proceeding brought to | ||
enforce this section. (Tex. Prob. Code, Sec. 863.) | ||
[Sections 1161.009-1161.050 reserved for expansion] | ||
SUBCHAPTER B. PROCEDURE FOR MAKING INVESTMENTS OR LOANS OR | ||
RETAINING ESTATE ASSETS | ||
. (a) Not later than | ||
the 180th day after the date the guardian of the estate qualifies as | ||
guardian or another date specified by the court, the guardian | ||
shall: | ||
(1) invest estate assets according to Section | ||
1161.003; or | ||
(2) file a written application with the court for an | ||
order: | ||
(A) authorizing the guardian to: | ||
(i) develop and implement an investment | ||
plan for estate assets; | ||
(ii) invest in or sell securities under an | ||
investment plan developed under Subparagraph (i); | ||
(iii) declare that one or more estate | ||
assets must be retained, despite being underproductive with respect | ||
to income or overall return; or | ||
(iv) loan estate funds, invest in real | ||
estate or make other investments, or purchase a life, term, or | ||
endowment insurance policy or an annuity contract; or | ||
(B) modifying or eliminating the guardian's duty | ||
to invest the estate. | ||
(b) The court may approve an investment plan under | ||
Subsection (a)(2) without a hearing. (Tex. Prob. Code, Secs. | ||
855B(a), (a-1).) | ||
. (a) If the court determines | ||
that the action requested in the application is in the best | ||
interests of the ward and the ward's estate, the court shall issue | ||
an order: | ||
(1) granting the authority requested in the | ||
application; or | ||
(2) modifying or eliminating the guardian's duty to | ||
keep the estate invested. | ||
(b) An order under Subsection (a) must state in reasonably | ||
specific terms: | ||
(1) the nature of the investment, investment plan, or | ||
other action requested in the application and authorized by the | ||
court, including any authority to invest in and sell securities in | ||
accordance with the investment plan's objectives; | ||
(2) when an investment must be reviewed and | ||
reconsidered by the guardian; and | ||
(3) whether the guardian must report the guardian's | ||
review and recommendations to the court. | ||
(c) A citation or notice is not necessary to invest in or | ||
sell securities under an investment plan authorized by the court | ||
under this section. (Tex. Prob. Code, Secs. 855B(b), (e).) | ||
ASSETS | ||
specific or general gift under a ward's will, if any, or that a ward | ||
has funds, securities, or other property held with a right of | ||
survivorship does not prevent: | ||
(1) the guardian of the estate from taking possession | ||
and control of the asset or closing the account; or | ||
(2) the court from authorizing an action or modifying | ||
or eliminating a duty with respect to the possession, control, or | ||
investment of the account or other asset. (Tex. Prob. Code, Sec. | ||
855B(c).) | ||
ASSETS | ||
apply if a different procedure is prescribed for an investment or | ||
sale by a guardian. | ||
(b) A guardian of the estate is not required to follow the | ||
procedure prescribed by this subchapter with respect to an | ||
investment or sale that is specifically authorized by other law. | ||
(Tex. Prob. Code, Sec. 855B(d).) | ||
[Sections 1161.055-1161.100 reserved for expansion] | ||
SUBCHAPTER C. INVESTMENTS IN CERTAIN INSURANCE OR ANNUITIES | ||
. In this subchapter, "authorized | ||
life insurance company" means a stock or mutual legal reserve life | ||
insurance company that: | ||
(1) is licensed by the Texas Department of Insurance | ||
to transact the business of life insurance in this state; and | ||
(2) maintains the legal reserve required by the laws | ||
of this state. (Tex. Prob. Code, Sec. 857(a).) | ||
ANNUITIES | ||
may invest in life, term, or endowment insurance policies, in | ||
annuity contracts, or in both, issued by an authorized life | ||
insurance company or administered by the Department of Veterans | ||
Affairs. (Tex. Prob. Code, Sec. 857(b).) | ||
. (a) An insurance | ||
policy in which the guardian of the estate invests must be issued on | ||
the life of: | ||
(1) the ward; | ||
(2) the ward's parent, spouse, child, sibling, or | ||
grandparent; or | ||
(3) another person in whose life the ward may have an | ||
insurable interest. | ||
(b) The ward must be the annuitant in the annuity contract | ||
in which the guardian of the estate invests. | ||
(c) Only the ward, the ward's estate, or the ward's parent, | ||
spouse, child, sibling, or grandparent may be a beneficiary of the | ||
insurance policy or of the death benefit of the annuity contract. | ||
(d) The insurance policy or annuity contract may not be | ||
amended or changed during the ward's life and disability, except on | ||
application to and order of the court. (Tex. Prob. Code, Secs. | ||
857(d), (e), (g).) | ||
ANNUITIES | ||
life, term, or endowment insurance policies, in annuity contracts, | ||
or in both, the guardian must first apply to the court for an order | ||
that authorizes the investment. | ||
(b) The application must include a report that shows: | ||
(1) in detail the estate's financial condition on the | ||
date the application is filed; | ||
(2) the name and address of the authorized life | ||
insurance company from which the insurance policy or annuity | ||
contract is to be purchased and that: | ||
(A) the company is licensed by the Texas | ||
Department of Insurance to transact that business in this state on | ||
the date the application is filed; or | ||
(B) the policy or contract is administered by the | ||
Department of Veterans Affairs; | ||
(3) a statement of: | ||
(A) the face amount and plan of the insurance | ||
policy sought to be purchased; and | ||
(B) the amount, frequency, and duration of the | ||
annuity payments to be provided by the annuity contract sought to be | ||
purchased; | ||
(4) a statement of the amount, frequency, and duration | ||
of the premiums required by the insurance policy or annuity | ||
contract; and | ||
(5) a statement of the cash value of the insurance | ||
policy or annuity contract at the policy's or contract's | ||
anniversary nearest the ward's 21st birthday, assuming that all | ||
premiums to the anniversary are paid and that there is no | ||
indebtedness against the policy or contract incurred in accordance | ||
with its terms. | ||
(c) If satisfied by the application and the evidence | ||
presented at the hearing that it is in the ward's interests to grant | ||
the application, the court shall enter an order granting the | ||
application. (Tex. Prob. Code, Secs. 857(c), (i).) | ||
ANNUITIES | ||
annuity contract owned by the ward when a proceeding for the | ||
appointment of a guardian of the estate is commenced may be | ||
continued in full effect if it is shown that: | ||
(1) the company issuing the policy or contract is an | ||
authorized life insurance company; or | ||
(2) the policy or contract is administered by the | ||
Department of Veterans Affairs. | ||
(b) All future premiums for an insurance policy or annuity | ||
contract described by Subsection (a) may be paid out of surplus | ||
funds of the ward's estate. | ||
(c) The guardian of the estate must apply to the court for an | ||
order to: | ||
(1) continue the policy, the contract, or both | ||
according to the existing terms of the policy or contract; or | ||
(2) modify the policy or contract to fit any new | ||
developments affecting the ward's welfare. | ||
(d) Before the court grants an application filed under | ||
Subsection (c), the guardian must file a report in the court that | ||
shows in detail the financial condition of the ward's estate on the | ||
date the application is filed. (Tex. Prob. Code, Sec. 857(h).) | ||
ANNUITIES | ||
contract and of the incidents of ownership in the policy or contract | ||
is vested in the guardian of the estate during the ward's life and | ||
disability. | ||
(b) A right, benefit, or interest that accrues under an | ||
insurance policy or annuity contract subject to this subchapter | ||
becomes the ward's exclusive property when the ward's disability is | ||
terminated. (Tex. Prob. Code, Secs. 857(f), (j).) | ||
[Sections 1161.107-1161.150 reserved for expansion] | ||
SUBCHAPTER D. INVESTMENTS IN REAL ESTATE | ||
PROCEDURE AND REQUIREMENTS | ||
invest estate assets in real estate if: | ||
(1) the guardian believes that the investment is in | ||
the ward's best interests; | ||
(2) there are on hand sufficient additional assets to | ||
provide a return sufficient to provide for: | ||
(A) the education, support, and maintenance of | ||
the ward and others the ward supports, if applicable; and | ||
(B) the maintenance, insurance, and taxes on the | ||
real estate in which the guardian wishes to invest; | ||
(3) the guardian files a written application with the | ||
court requesting a court order authorizing the guardian to make the | ||
desired investment and stating the reasons why, in the guardian's | ||
opinion, the investment would be for the ward's benefit; and | ||
(4) the court issues an order authorizing the | ||
investment as provided by this subchapter. | ||
(b) If the ward's money is invested in real estate, the | ||
title to the real estate shall be made to the ward. The guardian | ||
shall inventory, appraise, manage, and account for the real estate | ||
as the guardian does with other real estate of the ward. (Tex. | ||
Prob. Code, Secs. 860(a), (d).) | ||
. | ||
(a) If the guardian of the estate files an application under this | ||
subchapter, the judge shall investigate as necessary to obtain all | ||
the facts concerning the investment. | ||
(b) Subject to Subsection (c), on the hearing of the | ||
application, the court shall issue an order that authorizes the | ||
guardian to make the investment if the court is satisfied that the | ||
investment benefits the ward. The order must specify the | ||
investment to be made and contain other directions the court | ||
considers advisable. | ||
(c) The judge may not issue an opinion or order on the | ||
application until after the 10th day after the date the application | ||
is filed. (Tex. Prob. Code, Sec. 860(b).) | ||
. (a) | ||
If a contract is made for the investment of money in real estate | ||
under a court order, the guardian of the estate shall report the | ||
contract in writing to the court. | ||
(b) The court shall inquire fully into the contract. If | ||
satisfied that the investment will benefit the ward's estate and | ||
that the title of the real estate is valid and unencumbered, the | ||
court may approve the contract and authorize the guardian to pay | ||
money in performance of the contract. | ||
(c) The guardian may not pay any money on the contract until | ||
the contract is approved by a court order to that effect. (Tex. | ||
Prob. Code, Sec. 860(c).) | ||
[Sections 1161.154-1161.200 reserved for expansion] | ||
SUBCHAPTER E. LOANS AND SECURITY FOR LOANS | ||
. This | ||
subchapter does not apply to an investment in a debenture, bond, or | ||
other publicly traded debt security. (Tex. Prob. Code, Sec. | ||
858(h).) | ||
. (a) If, at any | ||
time, the guardian of the estate has on hand money belonging to the | ||
ward in an amount that provides a return that is more than is | ||
necessary for the education, support, and maintenance of the ward | ||
and others the ward supports, if applicable, the guardian may lend | ||
the money for a reasonable interest rate. | ||
(b) The guardian of the estate is considered to have | ||
obtained a reasonable interest rate for a loan for purposes of | ||
Subsection (a) if the interest rate is at least equal to 120 percent | ||
of the applicable short-term, midterm, or long-term interest rate | ||
under Section 7520, Internal Revenue Code of 1986, for the month | ||
during which the loan was made. (Tex. Prob. Code, Secs. 858(a) | ||
(part), (b).) | ||
. (a) Except as provided | ||
by Subsection (b), the guardian of the estate shall take as | ||
collateral the borrower's note for the money that is loaned, | ||
secured by: | ||
(1) a mortgage with a power of sale on unencumbered | ||
real estate located in this state worth at least twice the amount of | ||
the note; or | ||
(2) collateral notes secured by vendor's lien notes. | ||
(b) The guardian may purchase vendor's lien notes if at | ||
least one-half has been paid in cash or its equivalent on the land | ||
for which the notes were given. | ||
(c) Except as provided by Subsection (d), a guardian of the | ||
estate who lends estate money may not pay or transfer any money to | ||
consummate the loan until the guardian: | ||
(1) submits to a reputable attorney for examination | ||
all bonds, notes, mortgages, abstracts, and other documents | ||
relating to the loan; and | ||
(2) receives a written opinion from the attorney | ||
stating that the documents under Subdivision (1) are regular and | ||
that the title to relevant bonds, notes, or real estate is clear. | ||
(d) A guardian of the estate may obtain a mortgagee's title | ||
insurance policy on any real estate loan instead of an abstract and | ||
attorney's opinion under Subsection (c). | ||
(e) The borrower shall pay attorney's fees for any legal | ||
services required by Subsection (c). (Tex. Prob. Code, Secs. | ||
858(a) (part), (d), (e), (f), 861.) | ||
. (a) | ||
Not later than the 30th day after the date the guardian of the | ||
estate loans money from the estate, the guardian shall file with the | ||
court a written report, accompanied and verified by an affidavit, | ||
stating fully the facts related to the loan. | ||
(b) This section does not apply to a loan made in accordance | ||
with a court order. (Tex. Prob. Code, Secs. 858(g), 862.) | ||
. (a) Except as | ||
provided by Subsection (b), a guardian of the estate who loans | ||
estate money with the court's approval on security approved by the | ||
court is not personally liable if the borrower is unable to repay | ||
the money and the security fails. | ||
(b) If the guardian committed fraud or was negligent in | ||
making or managing the loan, including in collecting the loan, the | ||
guardian and the guardian's surety are liable for the loss | ||
sustained by the guardianship estate as a result of the fraud or negligence. (Tex. Prob. Code, Sec. 858(c).) | ||
CHAPTER 1162. TAX-MOTIVATED AND CHARITABLE AND NONPROFIT GIFTS | ||
SUBCHAPTER A. TAX-MOTIVATED GIFTS | ||
Sec. 1162.001. AUTHORITY TO ESTABLISH ESTATE PLAN | ||
Sec. 1162.002. ESTATE PLAN: CONTENTS AND MODIFICATION | ||
Sec. | 1162.003. NOTICE OF APPLICATION FOR ESTABLISHMENT | |
OF ESTATE PLAN | ||
Sec. 1162.004. AUTHORITY TO MAKE PERIODIC GIFTS | ||
Sec. | 1162.005. APPLICATION FOR INSPECTION OF CERTAIN | |
DOCUMENTS | ||
Sec. 1162.006. NOTICE OF APPLICATION FOR INSPECTION | ||
Sec. | 1162.007. HEARING ON APPLICATION FOR INSPECTION; | |
INSPECTION | ||
Sec. 1162.008. GUARDIAN AD LITEM | ||
[Sections 1162.009-1162.050 reserved for expansion] | ||
SUBCHAPTER B. CHARITABLE AND NONPROFIT GIFTS | ||
Sec. 1162.051. APPLICATION TO MAKE GIFT | ||
Sec. 1162.052. HEARING ON APPLICATION TO MAKE GIFT | ||
Sec. 1162.053. ORDER AUTHORIZING GIFT | ||
CHAPTER 1162. TAX-MOTIVATED AND CHARITABLE AND NONPROFIT GIFTS | ||
SUBCHAPTER A. TAX-MOTIVATED GIFTS | ||
. On | ||
application of the guardian of the estate or any interested party, | ||
after the posting of notice and hearing, and on a showing that the | ||
ward will probably remain incapacitated during the ward's lifetime, | ||
the court may enter an order that authorizes the guardian to apply | ||
the principal or income of the ward's estate that is not required | ||
for the support of the ward or the ward's family during the ward's | ||
lifetime toward the establishment of an estate plan for the purpose | ||
of minimizing income, estate, inheritance, or other taxes payable | ||
out of the ward's estate. On the ward's behalf, the court may | ||
authorize the guardian to make gifts, outright or in trust, of the | ||
ward's personal property or real estate to or for the benefit of: | ||
(1) an organization to which charitable contributions | ||
may be made under the Internal Revenue Code of 1986 and in which it | ||
is shown the ward would reasonably have an interest; | ||
(2) the ward's spouse, descendant, or other person | ||
related to the ward by blood or marriage who is identifiable at the | ||
time of the order; | ||
(3) a devisee under the ward's last validly executed | ||
will, trust, or other beneficial instrument, if the instrument | ||
exists; and | ||
(4) a person serving as guardian of the ward, if the | ||
person is eligible under Subdivision (2) or (3). (Tex. Prob. Code, | ||
Sec. 865(a).) | ||
. (a) | ||
The person making an application to the court under Section | ||
1162.001 shall: | ||
(1) outline the proposed estate plan; and | ||
(2) state all the benefits that are to be derived from | ||
the estate plan. | ||
(b) The application must indicate that the planned | ||
disposition is consistent with the ward's intentions, if the ward's | ||
intentions can be ascertained. If the ward's intentions cannot be | ||
ascertained, the ward will be presumed to favor reduction in the | ||
incidence of the various forms of taxation and the partial | ||
distribution of the ward's estate as provided by Sections 1162.001 | ||
and 1162.004. | ||
(c) A subsequent modification of an approved estate plan may | ||
be made by similar application to the court. (Tex. Prob. Code, | ||
Secs. 865(b), (d).) | ||
ESTATE PLAN | ||
Section 1162.001 shall mail notice of the application by certified | ||
mail to: | ||
(1) all devisees under a will, trust, or other | ||
beneficial instrument relating to the ward's estate; | ||
(2) the ward's spouse; | ||
(3) the ward's dependents; and | ||
(4) any other person as directed by the court. (Tex. | ||
Prob. Code, Sec. 865(e).) | ||
. (a) In an | ||
order entered under Section 1162.001, the court may authorize the | ||
guardian to make, without subsequent application to or order of the | ||
court, gifts as provided by that section on an annual or other | ||
periodic basis if the court finds it to be in the best interest of | ||
the ward and the ward's estate. | ||
(b) The court, on the court's own motion or on the motion of | ||
a person interested in the welfare of the ward, may modify or set | ||
aside an order entered under Subsection (a) if the court finds that | ||
the ward's financial condition has changed in such a manner that | ||
authorizing the guardian to make gifts of the estate on a continuing | ||
basis is no longer in the best interest of the ward and the ward's | ||
estate. (Tex. Prob. Code, Sec. 865(f).) | ||
DOCUMENTS | ||
1162.001 and for the purpose of establishing an estate plan under | ||
that section, the guardian of the ward's estate may apply to the | ||
court for an order to seek an in camera inspection of a copy of a | ||
will, codicil, trust, or other estate planning instrument of the | ||
ward as a means of obtaining access to the instrument. | ||
(b) An application filed under this section must: | ||
(1) be sworn to by the guardian; | ||
(2) list each instrument requested for inspection; and | ||
(3) state one or more reasons supporting the necessity | ||
to inspect each requested instrument for the purpose described by | ||
Subsection (a). (Tex. Prob. Code, Secs. 865A(a), (b).) | ||
. (a) A | ||
person who files an application under Section 1162.005 shall send a | ||
copy of the application to: | ||
(1) each person who has custody of an instrument | ||
listed in the application; | ||
(2) the ward's spouse; | ||
(3) the ward's dependents; | ||
(4) all devisees under a will, trust, or other | ||
beneficial instrument relating to the ward's estate; and | ||
(5) any other person as directed by the court. | ||
(b) Notice required by Subsection (a) must be delivered by: | ||
(1) registered or certified mail to a person described | ||
by Subsection (a)(1); and | ||
(2) certified mail to a person described by Subsection | ||
(a)(2), (3), (4), or (5). (Tex. Prob. Code, Secs. 865A(c), (d) | ||
(part).) | ||
INSPECTION | ||
applicant complies with the notice requirement under Section | ||
1162.006, the applicant may request that a hearing be held on the | ||
application. Notice of the date, time, and place of the hearing | ||
must be given by the applicant to each person described by Section | ||
1162.006(a)(1) when the court sets a date for a hearing on the | ||
application. | ||
(b) After the conclusion of a hearing on the application for | ||
inspection and on a finding that good cause exists for an in camera | ||
inspection of a requested instrument, the court shall direct the | ||
person that has custody of the requested will, codicil, trust, or | ||
other estate planning instrument to deliver a copy of the | ||
instrument to the court for in camera inspection only. After | ||
conducting an in camera inspection of the instrument, the court, if | ||
good cause exists, shall release all or part of the instrument to | ||
the applicant only for the purpose described by Section | ||
1162.005(a). | ||
(c) An attorney does not violate the attorney-client | ||
privilege solely by complying with a court order to release an | ||
instrument subject to this section and Sections 1162.005 and | ||
1162.006. Notwithstanding Section 22.004, Government Code, the | ||
supreme court may not amend or adopt rules in conflict with this | ||
subsection. (Tex. Prob. Code, Secs. 865A(d) (part), (e), (g).) | ||
. The court may appoint a | ||
guardian ad litem for the ward or an interested party at any stage | ||
of proceedings under this subchapter if it is considered advisable | ||
for the protection of the ward or the interested party. (Tex. Prob. | ||
Code, Secs. 865(c), 865A(f).) | ||
[Sections 1162.009-1162.050 reserved for expansion] | ||
SUBCHAPTER B. CHARITABLE AND NONPROFIT GIFTS | ||
. The guardian of | ||
the estate may at any time file with the county clerk the guardian's | ||
sworn, written application requesting from the court in which the | ||
guardianship is pending an order authorizing the guardian to | ||
contribute from the income of the ward's estate the specific amount | ||
of money stated in the application to one or more designated: | ||
(1) corporations, trusts, or community chests, funds, | ||
or foundations, organized and operated exclusively for religious, | ||
charitable, scientific, literary, or educational purposes; or | ||
(2) nonprofit federal, state, county, or municipal | ||
projects operated exclusively for public health or welfare. (Tex. | ||
Prob. Code, Sec. 866(a).) | ||
. (a) | ||
The county clerk shall immediately call the filing of an | ||
application under Section 1162.051 to the attention of the judge of | ||
the court. | ||
(b) The judge shall designate, by written order filed with | ||
the clerk, a day to hear the application. The application must | ||
remain on file for at least 10 days before the hearing is held. | ||
(c) The judge may postpone or continue the hearing from time | ||
to time until the judge is satisfied concerning the application. | ||
(Tex. Prob. Code, Sec. 866(b).) | ||
. On the conclusion | ||
of a hearing under Section 1162.052, the court may enter an order | ||
authorizing the guardian to make a contribution from the income of | ||
the ward's estate to a particular donee designated in the | ||
application and order if the court is satisfied and finds from the | ||
evidence that: | ||
(1) the amount of the proposed contribution stated in | ||
the application will probably not exceed 20 percent of the net | ||
income of the ward's estate for the current calendar year; | ||
(2) the net income of the ward's estate for the current | ||
calendar year exceeds, or probably will exceed, $25,000; | ||
(3) the full amount of the contribution, if made, will | ||
probably be deductible from the ward's gross income in determining | ||
the net income of the ward under applicable federal income tax laws | ||
and rules; | ||
(4) the condition of the ward's estate justifies a | ||
contribution in the proposed amount; and | ||
(5) the proposed contribution is reasonable in amount and is for a worthy cause. (Tex. Prob. Code, Sec. 866(c).) | ||
CHAPTER 1163. ANNUAL ACCOUNT AND OTHER EXHIBITS AND REPORTS | ||
SUBCHAPTER A. ANNUAL ACCOUNT AND OTHER EXHIBITS BY GUARDIAN OF THE | ESTATE | |
ESTATE | ||
Sec. 1163.001. INITIAL ANNUAL ACCOUNT OF ESTATE | ||
Sec. | 1163.002. ANNUAL ACCOUNT REQUIRED UNTIL ESTATE | |
CLOSED | ||
Sec. | 1163.003. SUPPORTING VOUCHERS AND OTHER DOCUMENTS | |
ATTACHED TO ACCOUNT | ||
Sec. | 1163.004. METHOD OF PROOF FOR SECURITIES AND | |
OTHER ASSETS | ||
Sec. | 1163.005. VERIFICATION OF ACCOUNT AND STATEMENT | |
REGARDING TAXES | ||
Sec. 1163.006. WAIVER OF ACCOUNT FILING | ||
[Sections 1163.007-1163.050 reserved for expansion] | ||
SUBCHAPTER B. ACTION ON ANNUAL ACCOUNT | ||
Sec. | 1163.051. FILING AND CONSIDERATION OF ANNUAL | |
ACCOUNT | ||
Sec. | 1163.052. CORRECTION AND APPROVAL OF ANNUAL | |
ACCOUNT | ||
Sec. 1163.053. ORDER FOR PAYMENT OF CLAIMS IN FULL | ||
Sec. 1163.054. ORDER FOR PRO RATA PAYMENT OF CLAIMS | ||
[Sections 1163.055-1163.100 reserved for expansion] | ||
SUBCHAPTER C. | ANNUAL REPORT BY GUARDIAN OF THE PERSON | |
Sec. 1163.101. ANNUAL REPORT REQUIRED | ||
Sec. 1163.102. REPORTING PERIOD | ||
Sec. 1163.103. REPORT IN CASE OF DECEASED WARD | ||
Sec. 1163.104. APPROVAL OF REPORT | ||
Sec. 1163.105. ATTORNEY NOT REQUIRED | ||
[Sections 1163.106-1163.150 reserved for expansion] | ||
SUBCHAPTER D. PENALTIES | ||
Sec. | 1163.151. PENALTY FOR FAILURE TO FILE REQUIRED | |
ACCOUNT, EXHIBIT, OR REPORT | ||
CHAPTER 1163. ANNUAL ACCOUNT AND OTHER EXHIBITS AND REPORTS | ||
SUBCHAPTER A. ANNUAL ACCOUNT AND OTHER EXHIBITS BY GUARDIAN OF THE | ||
ESTATE | ||
. (a) Not | ||
later than the 60th day after the first anniversary of the date the | ||
guardian of the estate of a ward qualifies, unless the court extends | ||
that period, the guardian shall file with the court an account | ||
consisting of a written exhibit made under oath that: | ||
(1) lists all claims against the estate presented to | ||
the guardian during the period covered by the account; and | ||
(2) specifies: | ||
(A) which claims have been: | ||
(i) allowed by the guardian; | ||
(ii) paid by the guardian; or | ||
(iii) rejected by the guardian and the date | ||
the claims were rejected; and | ||
(B) which claims have been the subject of a | ||
lawsuit and the status of that lawsuit. | ||
(b) The account must: | ||
(1) show all property that has come to the guardian's | ||
knowledge or into the guardian's possession that was not previously | ||
listed or inventoried as the ward's property; | ||
(2) show any change in the ward's property that was not | ||
previously reported; | ||
(3) provide a complete account of receipts and | ||
disbursements for the period covered by the account, including the | ||
source and nature of the receipts and disbursements, with separate | ||
listings for principal and income receipts; | ||
(4) provide a complete, accurate, and detailed | ||
description of: | ||
(A) the property being administered; | ||
(B) the condition of the property and the use | ||
being made of the property; and | ||
(C) if rented, the terms on which and the price | ||
for which the property was rented; | ||
(5) show the cash balance on hand and the name and | ||
location of the depository where the balance is kept; | ||
(6) show any other cash held in a savings account or | ||
other manner that was deposited subject to court order and the name | ||
and location of the depository for that cash; and | ||
(7) provide a detailed description of the personal | ||
property of the estate that shows how and where the property is held | ||
for safekeeping. | ||
(c) For bonds, notes, and other securities, the description | ||
required by Subsection (b)(7) must include: | ||
(1) the names of the obligor and obligee or, if payable | ||
to bearer, a statement that the bond, note, or other security is | ||
payable to bearer; | ||
(2) the date of issue and maturity; | ||
(3) the interest rate; | ||
(4) the serial number or other identifying numbers; | ||
(5) the manner in which the property is secured; and | ||
(6) other information necessary to fully identify the | ||
bond, note, or other security. (Tex. Prob. Code, Sec. 741(a).) | ||
. | ||
(a) A guardian of the estate shall file an annual account | ||
conforming to the essential requirements of Section 1163.001 | ||
regarding changes in the estate assets occurring since the date the | ||
most recent previous account was filed. | ||
(b) The annual account must be filed in a manner that allows | ||
the court or an interested person to ascertain the true condition of | ||
the estate, with respect to money, securities, and other property, | ||
by adding to the balances forwarded from the most recent previous | ||
account the amounts received during the period covered by the | ||
account and subtracting the disbursements made during that period. | ||
(c) The description of property sufficiently described in | ||
an inventory or previous account may be made in the annual account | ||
by reference to the property. (Tex. Prob. Code, Sec. 741(b).) | ||
ATTACHED TO ACCOUNT | ||
to each annual account: | ||
(1) a voucher for each item of credit claimed in the | ||
account or, to support the item in the absence of the voucher, other | ||
evidence satisfactory to the court; | ||
(2) an official letter from the bank or other | ||
depository where the money on hand of the estate or ward is | ||
deposited that shows the amounts in general or special deposits; | ||
and | ||
(3) proof of the existence and possession of: | ||
(A) securities owned by the estate or shown by | ||
the account; and | ||
(B) other assets held by a depository subject to | ||
court order. | ||
(b) An original voucher submitted to the court may on | ||
application be returned to the guardian after approval of the | ||
annual account. (Tex. Prob. Code, Sec. 741(c) (part).) | ||
ASSETS | ||
by: | ||
(1) an official letter from the bank or other | ||
depository where the securities or other assets are held for | ||
safekeeping, and if the depository is the guardian, the official | ||
letter must be signed by a representative of the depository other | ||
than the depository verifying the annual account; | ||
(2) a certificate of an authorized representative of a | ||
corporation that is surety on the guardian's bonds; | ||
(3) a certificate of the clerk or a deputy clerk of a | ||
court of record in this state; or | ||
(4) an affidavit of any other reputable person | ||
designated by the court on request of the guardian or other | ||
interested party. | ||
(b) A certificate or affidavit described by Subsection (a) | ||
must: | ||
(1) state that the affiant has examined the assets | ||
that the guardian exhibited to the affiant as assets of the estate | ||
for which the annual account is made; | ||
(2) describe the assets by reference to the account or | ||
in another manner that sufficiently identifies the assets | ||
exhibited; and | ||
(3) state the time and the place the assets were | ||
exhibited. | ||
(c) Instead of attaching a certificate or an affidavit, the | ||
guardian may exhibit the securities to the judge of the court, who | ||
shall endorse on the annual account, or include in the judge's order | ||
with respect to the account, a statement that the securities shown | ||
to the judge as on hand were exhibited to the judge and that the | ||
securities were the same as those shown in the account, or note any | ||
variance. If the securities are exhibited at a location other than | ||
where the securities are deposited for safekeeping, that exhibit is | ||
at the guardian's own expense and risk. | ||
(d) The judge of the court may require: | ||
(1) additional evidence of the existence and custody | ||
of the securities and other personal property as the judge | ||
considers proper; and | ||
(2) the guardian at any time to exhibit the securities | ||
to the judge or another person designated by the judge at the place | ||
where the securities are held for safekeeping. (Tex. Prob. Code, | ||
Secs. 741(c) (part), (d).) | ||
REGARDING TAXES | ||
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; and | ||
(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. | ||
(b) If on the filing of the account the guardian of the | ||
estate has failed on the ward's behalf to file a tax return or pay | ||
taxes due, the guardian shall attach to the account a description of | ||
the taxes and the reasons for the guardian's failure to file the | ||
return or pay the taxes. (Tex. Prob. Code, Secs. 741(e), (f).) | ||
. If the ward's | ||
estate produces negligible or fixed income, the court may waive the | ||
filing of annual accounts and may permit the guardian to: | ||
(1) receive all estate income and apply the income to | ||
the support, maintenance, and education of the ward; and | ||
(2) account to the court for the estate income and | ||
corpus when the estate must be closed. (Tex. Prob. Code, Sec. | ||
741(g).) | ||
[Sections 1163.007-1163.050 reserved for expansion] | ||
SUBCHAPTER B. ACTION ON ANNUAL ACCOUNT | ||
. | ||
(a) The guardian of the estate shall file an annual account with the | ||
county clerk. The county clerk shall note the filing on the judge's | ||
docket. | ||
(b) An annual account must remain on file for 10 days after | ||
the date the account is filed before being considered by the judge. | ||
After the expiration of that period, the judge shall consider the | ||
account and may continue the hearing on the account until fully | ||
advised on all account items. | ||
(c) The court may not approve the annual account unless | ||
possession of cash, listed securities, or other assets held in | ||
safekeeping or on deposit under court order has been proven as | ||
required by law. (Tex. Prob. Code, Secs. 742(a), (b), (c), (d), | ||
(e).) | ||
. | ||
(a) If an annual account is found to be incorrect, the account | ||
shall be corrected. | ||
(b) The court by order shall approve an annual account that | ||
is corrected to the satisfaction of the court and shall act with | ||
respect to unpaid claims in accordance with Sections 1163.053 and | ||
1163.054. (Tex. Prob. Code, Sec. 742(f) (part).) | ||
. After | ||
approval of an annual account as provided by Section 1163.052, if it | ||
appears to the court from the exhibit or other evidence that the | ||
estate is wholly solvent and that the guardian has sufficient funds | ||
to pay every claim against the estate, the court shall order | ||
immediate payment of all claims allowed and approved or established | ||
by judgment. (Tex. Prob. Code, Sec. 742(f) (part).) | ||
. After | ||
approval of an annual account as provided by Section 1163.052, if it | ||
appears to the court from the account or other evidence that the | ||
funds on hand are not sufficient to pay all claims against the | ||
estate or if the estate is insolvent and the guardian has any funds | ||
on hand, the court shall order the funds to be applied: | ||
(1) first to the payment of any unpaid claims having a | ||
preference in the order of their priority; and | ||
(2) then to the pro rata payment of the other claims | ||
allowed and approved or established by final judgment, considering | ||
also: | ||
(A) claims that were presented not later than the | ||
first anniversary of the date letters of guardianship were granted; | ||
and | ||
(B) claims that are in litigation or on which a | ||
lawsuit may be filed. (Tex. Prob. Code, Sec. 742(f) (part).) | ||
[Sections 1163.055-1163.100 reserved for expansion] | ||
SUBCHAPTER C. ANNUAL REPORT BY GUARDIAN OF THE PERSON | ||
. (a) Once each year | ||
for the duration of the guardianship, a guardian of the person shall | ||
file with the court a report that contains the information required | ||
by this section. | ||
(b) The guardian of the person shall file a sworn, written | ||
report that shows each receipt and disbursement for: | ||
(1) the support and maintenance of the ward; | ||
(2) when necessary, the education of the ward; and | ||
(3) when authorized by court order, the support and | ||
maintenance of the ward's dependents. | ||
(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; and | ||
(9) 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. (Tex. Prob. Code, Secs. | ||
743(a), (b), (g) (part).) | ||
. (a) Except as provided | ||
under Subsection (b), an annual report required by Section 1163.101 | ||
must cover a 12-month reporting period that begins on the date or | ||
the anniversary of the date the guardian of the person qualifies to | ||
serve. | ||
(b) The court may change a reporting period for purposes of | ||
this subchapter but may not extend a reporting period so that it | ||
covers more than 12 months. | ||
(c) Each report is due not later than the 60th day after the | ||
date the reporting period ends. (Tex. Prob. Code, Secs. 743(g) | ||
(part), (h), (i).) | ||
. If the ward | ||
is deceased, the guardian of the person shall provide the court with | ||
the date and place of death, if known, instead of the information | ||
about the ward otherwise required to be provided in the annual | ||
report. (Tex. Prob. Code, Sec. 743(c).) | ||
. (a) If the judge is | ||
satisfied that the facts stated in the report are true, the court | ||
shall approve the report. | ||
(b) Unless the judge is satisfied that the facts stated in | ||
the report are true, the judge shall issue orders necessary for the | ||
ward's best interests. | ||
(c) The court on the court's own motion may waive the costs | ||
and fees related to the filing of a report approved under Subsection | ||
(a). (Tex. Prob. Code, Secs. 743(d), (e), (f).) | ||
. A guardian of the | ||
person may complete and file the report required under this | ||
subchapter without the assistance of an attorney. (Tex. Prob. Code, | ||
Sec. 743(j).) | ||
[Sections 1163.106-1163.150 reserved for expansion] | ||
SUBCHAPTER D. PENALTIES | ||
ACCOUNT, EXHIBIT, OR REPORT | ||
account, an exhibit, a report of the guardian of the person, or | ||
another report required by this title, any person interested in the | ||
estate, on written complaint filed with the court clerk, or the | ||
court on the court's own motion, may have the guardian cited to | ||
appear and show cause why the guardian should not file the account, | ||
exhibit, or report. | ||
(b) On hearing, the court may: | ||
(1) order the guardian to file the account, exhibit, | ||
or report; and | ||
(2) unless good cause is shown for the failure to file: | ||
(A) revoke the guardian's letters of | ||
guardianship; | ||
(B) fine the guardian in an amount not to exceed | ||
$1,000; or | ||
(C) revoke the guardian's letters of | ||
guardianship and fine the guardian in an amount not to exceed $1,000. (Tex. Prob. Code, Sec. 744.) | ||
CHAPTER 1164. LIABILITY OF GUARDIAN OR GUARDIANSHIP PROGRAM | ||
Sec. 1164.001. LIABILITY OF GUARDIAN | ||
Sec. 1164.002. IMMUNITY OF GUARDIANSHIP PROGRAM | ||
CHAPTER 1164. LIABILITY OF GUARDIAN OR GUARDIANSHIP PROGRAM | ||
. A person is not | ||
liable to a third person solely because the person has been | ||
appointed guardian of a ward under this title. (Tex. Prob. Code, | ||
Sec. 673.) | ||
. A | ||
guardianship program is not liable for civil damages arising from | ||
an action taken or omission made by a person while providing | ||
guardianship services to a ward on behalf of the guardianship | ||
program, unless the action or omission was: | ||
(1) wilfully wrongful; | ||
(2) taken or made: | ||
(A) with conscious indifference to or reckless | ||
disregard for the safety of the ward or another; | ||
(B) in bad faith; or | ||
(C) with malice; or | ||
(3) grossly negligent. (Tex. Prob. Code, Sec. 674.) | ||
[Chapters 1165-1200 reserved for expansion] | ||
SUBTITLE F. EVALUATION, MODIFICATION, OR TERMINATION OF GUARDIANSHIP | ||
CHAPTER 1201. EVALUATION OF GUARDIANSHIP | ||
SUBCHAPTER A. REVIEW OF GUARDIANSHIP | ||
Sec. | 1201.001. DETERMINING GUARDIAN'S PERFORMANCE OF | |
DUTIES | ||
Sec. | 1201.002. ANNUAL EXAMINATION OF GUARDIANSHIP; | |
BOND OF GUARDIAN | ||
Sec. 1201.003. JUDGE'S LIABILITY | ||
Sec. 1201.004. IDENTIFYING INFORMATION | ||
[Sections 1201.005-1201.050 reserved for expansion] | ||
SUBCHAPTER B. ANNUAL DETERMINATION TO CONTINUE, MODIFY, OR | TERMINATE GUARDIANSHIP | |
TERMINATE GUARDIANSHIP | ||
Sec. 1201.051. APPLICABILITY | ||
Sec. 1201.052. ANNUAL DETERMINATION | ||
Sec. 1201.053. METHOD OF DETERMINATION | ||
Sec. 1201.054. FORM OF DETERMINATION | ||
CHAPTER 1201. EVALUATION OF GUARDIANSHIP | ||
SUBCHAPTER A. REVIEW OF GUARDIANSHIP | ||
DUTIES | ||
whether a guardian is performing all of the duties required of the | ||
guardian that relate to the guardian's ward. (Tex. Prob. Code, Sec. | ||
671(a).) | ||
GUARDIAN | ||
well-being of each ward of the court and the solvency of the bond of | ||
the guardian of the ward's estate. | ||
(b) If after examining the solvency of a guardian's bond as | ||
provided by Subsection (a) the judge determines that the guardian's | ||
bond is not sufficient to protect the ward or the ward's estate, the | ||
judge shall require the guardian to execute a new bond. | ||
(c) The judge shall notify the guardian and the sureties on | ||
the guardian's bond as provided by law. (Tex. Prob. Code, Secs. | ||
671(b), (c), (d) (part).) | ||
. A judge is liable on the | ||
judge's bond to those damaged if damage or loss results to a | ||
guardianship or ward because of the gross neglect of the judge to | ||
use reasonable diligence in the performance of the judge's duty | ||
under this subchapter. (Tex. Prob. Code, Sec. 671(d) (part).) | ||
. (a) The court may | ||
request an applicant or court-appointed fiduciary to produce other | ||
information identifying an applicant, ward, or guardian, including | ||
a social security number, in addition to identifying information | ||
the applicant or fiduciary is required to produce under this title. | ||
(b) The court shall maintain any information required under | ||
this section, and the information may not be filed with the clerk. | ||
(Tex. Prob. Code, Sec. 671(e).) | ||
[Sections 1201.005-1201.050 reserved for expansion] | ||
SUBCHAPTER B. ANNUAL DETERMINATION TO CONTINUE, MODIFY, OR | ||
TERMINATE GUARDIANSHIP | ||
. This subchapter does not | ||
apply to a guardianship that is created only because it is necessary | ||
for a person to have a guardian appointed to receive funds from a | ||
governmental source. (Tex. Prob. Code, Sec. 672(e).) | ||
. To determine whether | ||
a guardianship should be continued, modified, or terminated, the | ||
court in which the guardianship proceeding is pending: | ||
(1) shall review annually each guardianship in which | ||
the application to create the guardianship was filed after | ||
September 1, 1993; and | ||
(2) may review annually any other guardianship. (Tex. | ||
Prob. Code, Sec. 672(a).) | ||
. (a) In reviewing a | ||
guardianship under Section 1201.052, a statutory probate court may: | ||
(1) review any report prepared by: | ||
(A) a court investigator under Section 1054.153 | ||
or 1202.054; | ||
(B) a guardian ad litem under Section 1202.054; | ||
or | ||
(C) a court visitor under Section 1054.104; | ||
(2) conduct a hearing; or | ||
(3) review an annual account prepared under Subchapter | ||
A, Chapter 1163, or a report prepared under Subchapter C, Chapter | ||
1163. | ||
(b) A court that is not a statutory probate court may use any | ||
method to review a guardianship under Section 1201.052 that is | ||
determined appropriate by the court according to the court's | ||
caseload and available resources. (Tex. Prob. Code, Secs. 672(b), | ||
(c).) | ||
. A determination | ||
under this subchapter must be in writing and filed with the clerk. (Tex. Prob. Code, Sec. 672(d).) | ||
MODIFICATION OR TERMINATION OF GUARDIANSHIP | ||
CHAPTER 1202. | MODIFICATION OR TERMINATION OF GUARDIANSHIP | |
SUBCHAPTER A. | TERMINATION AND SETTLEMENT OF GUARDIANSHIP | |
Sec. 1202.001. TERM OF GUARDIAN OR GUARDIANSHIP | ||
Sec. | 1202.002. TERMINATION OF GUARDIANSHIP IF PARENT | |
IS NO LONGER INCAPACITATED | ||
[Sections 1202.003-1202.050 reserved for expansion] | ||
SUBCHAPTER B. | APPLICATION FOR COMPLETE RESTORATION OF WARD'S CAPACITY OR MODIFICATION OF GUARDIANSHIP | |
CAPACITY OR MODIFICATION OF GUARDIANSHIP | ||
Sec. 1202.051. APPLICATION AUTHORIZED | ||
Sec. 1202.052. CONTENTS OF APPLICATION | ||
Sec. 1202.053. CITATION REQUIRED | ||
Sec. | 1202.054. INFORMAL REQUEST FOR ORDER BY WARD; | |
INVESTIGATION AND REPORT | ||
Sec. | 1202.055. RESTRICTION ON SUBSEQUENT APPLICATION | |
REGARDING CAPACITY OR MODIFICATION | ||
[Sections 1202.056-1202.100 reserved for expansion] | ||
SUBCHAPTER C. | REPRESENTATION OF WARD IN PROCEEDING FOR COMPLETE RESTORATION OF WARD'S CAPACITY OR MODIFICATION OF GUARDIANSHIP | |
RESTORATION OF WARD'S CAPACITY OR MODIFICATION OF GUARDIANSHIP | ||
Sec. 1202.101. APPOINTMENT OF ATTORNEY AD LITEM | ||
Sec. | 1202.102. COMPENSATION FOR ATTORNEY AD LITEM AND | |
GUARDIAN AD LITEM | ||
Sec. | 1202.103. RETENTION AND COMPENSATION OF ATTORNEY | |
FOR WARD | ||
[Sections 1202.104-1202.150 reserved for expansion] | ||
SUBCHAPTER D. | HEARING, EVIDENCE, AND ORDERS IN PROCEEDING FOR COMPLETE RESTORATION OF WARD'S CAPACITY OR MODIFICATION OF | |
COMPLETE RESTORATION OF WARD'S CAPACITY OR MODIFICATION OF | GUARDIANSHIP | |
GUARDIANSHIP | ||
Sec. 1202.151. EVIDENCE AND BURDEN OF PROOF AT HEARING | ||
Sec. | 1202.152. PHYSICIAN'S LETTER OR CERTIFICATE | |
REQUIRED | ||
Sec. 1202.153. FINDINGS REQUIRED | ||
Sec. 1202.154. GENERAL REQUIREMENTS FOR ORDER | ||
Sec. | 1202.155. ADDITIONAL REQUIREMENTS FOR ORDER | |
RESTORING WARD'S CAPACITY | ||
Sec. | 1202.156. ADDITIONAL REQUIREMENTS FOR ORDER | |
MODIFYING GUARDIANSHIP | ||
Sec. | 1202.157. ADDITIONAL REQUIREMENTS FOR ORDER | |
DISMISSING APPLICATION | ||
CHAPTER 1202. MODIFICATION OR TERMINATION OF GUARDIANSHIP | ||
SUBCHAPTER A. TERMINATION AND SETTLEMENT OF GUARDIANSHIP | ||
. (a) | ||
Unless otherwise discharged as provided by law, a guardian remains | ||
in office until the estate is closed. | ||
(b) A guardianship shall be settled and closed when the | ||
ward: | ||
(1) dies and, if the ward was married, the ward's | ||
spouse qualifies as survivor in community; | ||
(2) is found by the court to have full capacity to care | ||
for himself or herself and to manage the ward's property; | ||
(3) is no longer a minor; or | ||
(4) no longer must have a guardian appointed to | ||
receive funds due the ward from any governmental source. | ||
(c) An order appointing a guardian or a successor guardian | ||
may specify a period of not more than one year during which a | ||
petition for adjudication that the ward no longer requires the | ||
guardianship may not be filed without special leave. | ||
(d) A request for an order under this section may be made by | ||
informal letter to the court. A person who knowingly interferes | ||
with the transmission of the request to the court may be adjudged | ||
guilty of contempt of court. | ||
(e) If a nonresident guardian of a nonresident ward | ||
qualifies as guardian under this title, any resident guardian's | ||
guardianship may be terminated. (Tex. Prob. Code, Sec. 694.) | ||
LONGER INCAPACITATED | ||
serve as the designated guardian of the person or estate, or both, | ||
of a minor child solely because of the incapacity of the minor's | ||
surviving parent and in accordance with Section 1104.053 and | ||
Subchapter D, Chapter 1104, terminate when a probate court enters | ||
an order finding that the surviving parent is no longer an | ||
incapacitated person. | ||
(b) The powers of a person appointed to serve as the | ||
designated guardian of the person or estate, or both, of an adult | ||
individual solely because of the incapacity of the individual's | ||
surviving parent and in accordance with Section 1104.103 and | ||
Subchapter D, Chapter 1104, terminate when a probate court enters | ||
an order finding that the surviving parent is no longer an | ||
incapacitated person and reappointing the surviving parent as the | ||
individual's guardian. (Tex. Prob. Code, Secs. 676(g), 677(e).) | ||
[Sections 1202.003-1202.050 reserved for expansion] | ||
SUBCHAPTER B. APPLICATION FOR COMPLETE RESTORATION OF WARD'S | ||
CAPACITY OR MODIFICATION OF GUARDIANSHIP | ||
. A ward or any | ||
person interested in the ward's welfare may file a written | ||
application with the court for an order: | ||
(1) finding that the ward is no longer an | ||
incapacitated person and ordering the settlement and closing of the | ||
guardianship; | ||
(2) finding that the ward lacks the capacity to do some | ||
or all of the tasks necessary to provide food, clothing, or shelter | ||
for himself or herself, to care for the ward's own physical health, | ||
or to manage the ward's own financial affairs and granting | ||
additional powers or duties to the guardian; or | ||
(3) finding that the ward has the capacity to do some, | ||
but not all, of the tasks necessary to provide food, clothing, or | ||
shelter for himself or herself, to care for the ward's own physical | ||
health, or to manage the ward's own financial affairs and: | ||
(A) limiting the guardian's powers or duties; and | ||
(B) permitting the ward to care for himself or | ||
herself or to manage the ward's own financial affairs commensurate | ||
with the ward's ability. (Tex. Prob. Code, Sec. 694A(a).) | ||
. An application | ||
filed under Section 1202.051 must be sworn to by the applicant and | ||
must state: | ||
(1) the ward's name, sex, date of birth, and address; | ||
(2) the name and address of any person serving as | ||
guardian of the person of the ward on the date the application is | ||
filed; | ||
(3) the name and address of any person serving as | ||
guardian of the estate of the ward on the date the application is | ||
filed; | ||
(4) the nature and description of the ward's | ||
guardianship; | ||
(5) the specific areas of protection and assistance | ||
and any limitation of rights that exist; | ||
(6) whether the relief being sought is: | ||
(A) a restoration of the ward's capacity because | ||
the ward is no longer an incapacitated person; | ||
(B) the granting of additional powers or duties | ||
to the guardian; or | ||
(C) the limitation of powers granted to or duties | ||
performed by the guardian; | ||
(7) if the relief being sought under the application | ||
is described by Subdivision (6)(B) or (C): | ||
(A) the nature and degree of the ward's | ||
incapacity; | ||
(B) the specific areas of protection and | ||
assistance to be provided to the ward and requested to be included | ||
in the court's order; and | ||
(C) any limitation of the ward's rights requested | ||
to be included in the court's order; | ||
(8) the approximate value and description of the | ||
ward's property, including any compensation, pension, insurance, | ||
or allowance to which the ward is or may be entitled; and | ||
(9) if the ward is 60 years of age or older, the names | ||
and addresses, to the best of the applicant's knowledge, of the | ||
ward's spouse, siblings, and children or, if there is no known | ||
spouse, sibling, or child, the names and addresses of the ward's | ||
next of kin. (Tex. Prob. Code, Sec. 694B.) | ||
. When an application is | ||
filed under Section 1202.051, citation shall be served on: | ||
(1) the ward's guardian; and | ||
(2) the ward if the ward is not the applicant. (Tex. | ||
Prob. Code, Sec. 694A(d).) | ||
INVESTIGATION AND REPORT | ||
Section 1202.051 by informal letter to the court. A person who | ||
knowingly interferes with the transmission of the request to the | ||
court may be adjudged guilty of contempt of court. | ||
(b) On receipt of an informal letter under Subsection (a), | ||
the court shall appoint the court investigator or a guardian ad | ||
litem to investigate the ward's circumstances, including any | ||
circumstances alleged in the letter, to determine whether: | ||
(1) the ward is no longer an incapacitated person; or | ||
(2) a modification of the guardianship is necessary. | ||
(c) The court investigator or guardian ad litem shall file | ||
with the court a report of the investigation's findings and | ||
conclusions. If the court investigator or guardian ad litem | ||
determines that it is in the best interest of the ward to terminate | ||
or modify the guardianship, the court investigator or guardian ad | ||
litem shall file an application under Section 1202.051 on the | ||
ward's behalf. | ||
(d) A guardian ad litem appointed under this section may | ||
also be appointed by the court to serve as attorney ad litem under | ||
Section 1202.101. (Tex. Prob. Code, Secs. 694A(b), (c).) | ||
REGARDING CAPACITY OR MODIFICATION | ||
complete restoration of a ward's capacity or modification of a | ||
ward's guardianship before the first anniversary of the date of the | ||
hearing on the last preceding application, except as otherwise | ||
provided by the court on good cause shown by the applicant. (Tex. | ||
Prob. Code, Sec. 694A(e).) | ||
[Sections 1202.056-1202.100 reserved for expansion] | ||
SUBCHAPTER C. REPRESENTATION OF WARD IN PROCEEDING FOR COMPLETE | ||
RESTORATION OF WARD'S CAPACITY OR MODIFICATION OF GUARDIANSHIP | ||
. The court | ||
shall appoint an attorney ad litem to represent a ward in a | ||
proceeding for the complete restoration of the ward's capacity or | ||
for the modification of the ward's guardianship. Unless otherwise | ||
provided by the court, the attorney ad litem shall represent the | ||
ward only for purposes of the restoration or modification | ||
proceeding. (Tex. Prob. Code, Secs. 694C(a), (b).) | ||
GUARDIAN AD LITEM | ||
Section 1202.101 is entitled to reasonable compensation for | ||
services in the amount set by the court to be taxed as costs in the | ||
proceeding, regardless of whether the proceeding results in the | ||
restoration of the ward's capacity or a modification of the ward's | ||
guardianship. | ||
(b) A guardian ad litem appointed in a proceeding involving | ||
the complete restoration of a ward's capacity or modification of a | ||
ward's guardianship is entitled to reasonable compensation, as | ||
provided by Section 1054.055(a), regardless of whether the | ||
proceeding results in the restoration of the ward's capacity or a | ||
modification of the ward's guardianship. (Tex. Prob. Code, Secs. | ||
694C(c), 694L.) | ||
WARD | ||
the complete restoration of the ward's capacity or modification of | ||
the ward's guardianship. | ||
(b) The court may order that compensation for services | ||
provided by an attorney retained under this section be paid from | ||
funds in the ward's estate only if the court finds that the attorney | ||
had a good faith belief that the ward had the capacity necessary to | ||
retain the attorney's services. (Tex. Prob. Code, Sec. 694K.) | ||
[Sections 1202.104-1202.150 reserved for expansion] | ||
SUBCHAPTER D. HEARING, EVIDENCE, AND ORDERS IN PROCEEDING FOR | ||
COMPLETE RESTORATION OF WARD'S CAPACITY OR MODIFICATION OF | ||
GUARDIANSHIP | ||
. (a) | ||
At a hearing on an application filed under Section 1202.051, the | ||
court shall consider only evidence regarding the ward's mental or | ||
physical capacity at the time of the hearing that is relevant to the | ||
complete restoration of the ward's capacity or modification of the | ||
ward's guardianship. | ||
(b) The party who filed the application has the burden of | ||
proof at the hearing. (Tex. Prob. Code, Sec. 694D.) | ||
. | ||
(a) The court may not grant an order completely restoring a ward's | ||
capacity or modifying a ward's guardianship under an application | ||
filed under Section 1202.051 unless the applicant presents to the | ||
court a written letter or certificate from a physician licensed in | ||
this state that is dated: | ||
(1) not earlier than the 120th day before the date the | ||
application was filed; or | ||
(2) after the date the application was filed but | ||
before the date of the hearing. | ||
(b) A letter or certificate presented under Subsection (a) | ||
must: | ||
(1) describe the nature and degree of incapacity, | ||
including the medical history if reasonably available, or state | ||
that, in the physician's opinion, the ward has the capacity to: | ||
(A) provide food, clothing, and shelter for | ||
himself or herself; | ||
(B) care for the ward's own physical health; and | ||
(C) manage the ward's financial affairs; | ||
(2) provide a medical prognosis specifying the | ||
estimated severity of any incapacity; | ||
(3) state how or in what manner the ward's ability to | ||
make or communicate responsible decisions concerning himself or | ||
herself is affected by the ward's physical or mental health; | ||
(4) state whether any current medication affects the | ||
ward's demeanor or the ward's ability to participate fully in a | ||
court proceeding; | ||
(5) describe the precise physical and mental | ||
conditions underlying a diagnosis of senility, if applicable; and | ||
(6) include any other information required by the | ||
court. | ||
(c) If the court determines it is necessary, the court may | ||
appoint the necessary physicians to examine the ward in the same | ||
manner and to the same extent as a ward is examined by a physician | ||
under Section 1101.103 or 1101.104. (Tex. Prob. Code, Sec. 694F.) | ||
. (a) Before ordering the | ||
settlement and closing of a guardianship under an application filed | ||
under Section 1202.051, the court must find by a preponderance of | ||
the evidence that the ward is no longer partially or fully | ||
incapacitated. | ||
(b) Before granting additional powers to the guardian or | ||
requiring the guardian to perform additional duties under an | ||
application filed under Section 1202.051, the court must find by a | ||
preponderance of the evidence that the current nature and degree of | ||
the ward's incapacity warrants a modification of the guardianship | ||
and that some or all of the ward's rights need to be further | ||
restricted. | ||
(c) Before limiting the powers granted to or duties required | ||
to be performed by the guardian under an application filed under | ||
Section 1202.051, the court must find by a preponderance of the | ||
evidence that the current nature and degree of the ward's | ||
incapacity warrants a modification of the guardianship and that | ||
some of the ward's rights need to be restored. (Tex. Prob. Code, | ||
Sec. 694E.) | ||
. (a) A court | ||
order entered with respect to an application filed under Section | ||
1202.051 to completely restore a ward's capacity or modify a ward's | ||
guardianship must state: | ||
(1) the guardian's name; | ||
(2) the ward's name; and | ||
(3) whether the type of guardianship being addressed | ||
at the proceeding is a: | ||
(A) guardianship of the person; | ||
(B) guardianship of the estate; or | ||
(C) guardianship of both the person and the | ||
estate. | ||
(b) In an order described by this section, the court may not | ||
grant a power to a guardian or require the guardian to perform a | ||
duty that is a power granted to or a duty required to be performed by | ||
another guardian. (Tex. Prob. Code, Sec. 694J.) | ||
WARD'S CAPACITY | ||
incapacitated person, the order completely restoring the ward's | ||
capacity must contain findings of fact and specify, in addition to | ||
the information required by Section 1202.154: | ||
(1) that the ward is no longer an incapacitated | ||
person; | ||
(2) that there is no further need for a guardianship of | ||
the person or estate of the ward; | ||
(3) if the ward's incapacity resulted from a mental | ||
condition, that the ward's mental capacity is completely restored; | ||
(4) that the guardian is required to: | ||
(A) immediately settle the guardianship in | ||
accordance with this title; and | ||
(B) deliver all of the remaining guardianship | ||
estate to the ward; and | ||
(5) that the clerk shall revoke letters of | ||
guardianship when the guardianship is finally settled and closed. | ||
(Tex. Prob. Code, Sec. 694G.) | ||
GUARDIANSHIP | ||
should be expanded or limited, the order modifying the guardianship | ||
must contain findings of fact and specify, in addition to the | ||
information required by Section 1202.154: | ||
(1) the specific powers, limitations, or duties of the | ||
guardian with respect to the care of the ward or the management of | ||
the ward's property, as appropriate; | ||
(2) the specific areas of protection and assistance to | ||
be provided to the ward; | ||
(3) any limitation of the ward's rights; | ||
(4) if the ward's incapacity resulted from a mental | ||
condition, whether the ward retains the right to vote; and | ||
(5) that the clerk shall modify the letters of | ||
guardianship to the extent applicable to conform to the order. | ||
(Tex. Prob. Code, Sec. 694H.) | ||
DISMISSING APPLICATION | ||
the ward's guardianship is not necessary or that the ward's capacity | ||
has not been restored, the court shall dismiss the application and | ||
enter an order that contains findings of fact and specifies, in | ||
addition to the information required by Section 1202.154, that the | ||
guardian's powers, limitations, or duties with respect to the | ||
ward's care or the management of the ward's property remain unchanged. (Tex. Prob. Code, Sec. 694I.) | ||
RESIGNATION, REMOVAL, OR DEATH OF GUARDIAN; APPOINTMENT OF SUCCESSOR | ||
CHAPTER 1203. | RESIGNATION, REMOVAL, OR DEATH OF GUARDIAN; APPOINTMENT OF SUCCESSOR | |
APPOINTMENT OF SUCCESSOR | ||
SUBCHAPTER A. RESIGNATION OF GUARDIAN | ||
Sec. 1203.001. RESIGNATION APPLICATION | ||
Sec. | 1203.002. IMMEDIATE ACCEPTANCE OF RESIGNATION; | |
DISCHARGE AND RELEASE | ||
Sec. | 1203.003. DELIVERY OF ESTATE PROPERTY TO | |
RESIGNATION | ||
Sec. 1203.004. HEARING DATE; CITATION | ||
Sec. 1203.005. HEARING | ||
Sec. 1203.006. REQUIREMENTS FOR DISCHARGE | ||
[Sections 1203.007-1203.050 reserved for expansion] | ||
SUBCHAPTER B. | REMOVAL AND REINSTATEMENT OF GUARDIAN | |
Sec. 1203.051. REMOVAL WITHOUT NOTICE | ||
Sec. 1203.052. REMOVAL WITH NOTICE | ||
Sec. 1203.053. REMOVAL ORDER | ||
Sec. 1203.054. DISCHARGE AND RELEASE FOLLOWING REMOVAL | ||
Sec. | 1203.055. DELIVERY OF ESTATE PROPERTY TO | |
SUCCESSOR GUARDIAN FOLLOWING REMOVAL | ||
Sec. | 1203.056. REMOVAL AND REINSTATEMENT OF GUARDIAN | |
UNDER CERTAIN CIRCUMSTANCES | ||
Sec. 1203.057. REMOVAL OF JOINT GUARDIAN | ||
[Sections 1203.058-1203.100 reserved for expansion] | ||
SUBCHAPTER C. | APPOINTMENT OF SUCCESSOR GUARDIAN; REVOCATION OF LETTERS | |
LETTERS | ||
Sec. 1203.101. REQUIREMENTS FOR REVOCATION OF LETTERS | ||
Sec. | 1203.102. APPOINTMENT BECAUSE OF RESIGNATION, | |
REMOVAL, OR DEATH | ||
Sec. | 1203.103. APPOINTMENT BECAUSE OF EXISTENCE OF | |
PRIOR RIGHT | ||
Sec. | 1203.104. APPOINTMENT WHEN GUARDIAN NAMED IN WILL | |
BECOMES AN ADULT | ||
Sec. | 1203.105. APPOINTMENT OF FORMERLY ILL OR ABSENT | |
GUARDIAN NAMED IN WILL | ||
Sec. | 1203.106. APPOINTMENT WHEN WILL DISCOVERED AFTER | |
GRANT OF LETTERS | ||
Sec. | 1203.107. APPOINTMENT ON REMOVAL OF LITIGATION | |
CONFLICT | ||
Sec. | 1203.108. APPOINTMENT OF DEPARTMENT OF AGING AND | |
GUARDIAN | ||
[Sections 1203.109-1203.150 reserved for expansion] | ||
SUBCHAPTER D. | SUCCESSOR GUARDIANS FOR WARDS OF GUARDIANSHIP PROGRAMS OR GOVERNMENTAL ENTITIES | |
PROGRAMS OR GOVERNMENTAL ENTITIES | ||
Sec. | 1203.151. NOTICE OF AVAILABILITY OF SUCCESSOR | |
GUARDIAN | ||
Sec. | 1203.152. DETERMINATION OF PROPOSED SUCCESSOR | |
GUARDIAN'S QUALIFICATION TO SERVE | ||
Sec. | 1203.153. APPLICATION TO APPOINT SUCCESSOR | |
GUARDIAN | ||
[Sections 1203.154-1203.200 reserved for expansion] | ||
SUBCHAPTER E. | PROCEDURES AFTER RESIGNATION, REMOVAL, OR DEATH OF GUARDIAN | |
GUARDIAN | ||
Sec. | 1203.201. PAYMENT TO WARD WHILE OFFICE OF | |
GUARDIAN IS VACANT | ||
Sec. | 1203.202. RIGHTS, POWERS, AND DUTIES OF SUCCESSOR | |
GUARDIAN | ||
Sec. | 1203.203. SUCCESSOR GUARDIAN TO RETURN INVENTORY, | |
APPRAISEMENT, AND LIST OF CLAIMS | ||
CHAPTER 1203. RESIGNATION, REMOVAL, OR DEATH OF GUARDIAN; | ||
APPOINTMENT OF SUCCESSOR | ||
SUBCHAPTER A. RESIGNATION OF GUARDIAN | ||
. A guardian of the | ||
estate or guardian of the person who wishes to resign the guardian's | ||
trust shall file a written application with the court clerk, | ||
accompanied by: | ||
(1) in the case of a guardian of the estate, a complete | ||
and verified exhibit and final account showing the true condition | ||
of the guardianship estate entrusted to the guardian's care; or | ||
(2) in the case of a guardian of the person, a verified | ||
report containing the information required in the annual report | ||
required under Subchapter C, Chapter 1163, showing the condition of | ||
the ward entrusted to the guardian's care. (Tex. Prob. Code, Sec. | ||
760(a).) | ||
DISCHARGE AND RELEASE | ||
immediately accept the resignation of a guardian and appoint a | ||
successor guardian as provided by Section 1203.102(b). | ||
(b) The court may not discharge a person resigning as | ||
guardian of the estate whose resignation is accepted under | ||
Subsection (a), or release the person or the sureties on the | ||
person's bond, until a final order has been issued, or a final | ||
judgment has been rendered, on the final account required under | ||
Section 1203.001. (Tex. Prob. Code, Sec. 760(b) (part).) | ||
GUARDIAN FOLLOWING RESIGNATION | ||
resigning guardian who has any part of a ward's estate to deliver | ||
any part of the estate to a person who has been appointed and has | ||
qualified as successor guardian. (Tex. Prob. Code, Sec. 760(g).) | ||
. (a) When an | ||
application to resign as guardian is filed under Section 1203.001, | ||
supported by the exhibit and final account or report required under | ||
that section, the court clerk shall bring the application to the | ||
judge's attention and the judge shall set a date for a hearing on | ||
the matter. | ||
(b) After a hearing is set under Subsection (a), the clerk | ||
shall issue a citation to all interested persons, showing: | ||
(1) that an application that complies with Section | ||
1203.001 has been filed; and | ||
(2) the time and place set for the hearing at which the | ||
interested persons may appear and contest the exhibit and final | ||
account or report supporting the application. | ||
(c) Unless the court directs that the citation under | ||
Subsection (b) be published, the citation must be posted. (Tex. | ||
Prob. Code, Sec. 760(c).) | ||
. (a) At the time set for the | ||
hearing under Section 1203.004, unless the court continues the | ||
hearing, and if the court finds that the citation required under | ||
that section has been properly issued and served, the court shall: | ||
(1) examine the exhibit and final account or report | ||
required by Section 1203.001; | ||
(2) hear all evidence for and against the exhibit, | ||
final account, or report; and | ||
(3) if necessary, restate and audit and settle the | ||
exhibit, final account, or report. | ||
(b) If the court is satisfied that the matters entrusted to | ||
the guardian applying to resign have been handled and accounted for | ||
in accordance with the law, the court shall: | ||
(1) enter an order approving the exhibit and final | ||
account or report; and | ||
(2) require that any estate property remaining in the | ||
applicant's possession be delivered to the person entitled by law | ||
to receive the property. | ||
(c) A guardian of the person shall comply with all court | ||
orders concerning the guardian's ward. (Tex. Prob. Code, Sec. | ||
760(d).) | ||
. (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 applicant has satisfied the court that the | ||
applicant has: | ||
(A) delivered any estate property remaining in | ||
the applicant's possession; or | ||
(B) complied with all court orders relating to | ||
the applicant's trust as guardian. | ||
(b) When a guardian applying to resign has fully complied | ||
with the court orders, the court shall enter an order: | ||
(1) accepting the resignation; and | ||
(2) discharging the applicant and, if the applicant is | ||
under bond, the applicant's sureties. (Tex. Prob. Code, Secs. | ||
760(e), (f).) | ||
[Sections 1203.007-1203.050 reserved for expansion] | ||
SUBCHAPTER B. REMOVAL AND REINSTATEMENT OF GUARDIAN | ||
. The court, on the | ||
court's own motion or on the motion of an interested person, | ||
including the ward, and without notice, may remove a guardian | ||
appointed under this title who: | ||
(1) neglects to qualify in the manner and time | ||
required by law; | ||
(2) fails to return, not later than the 30th day after | ||
the date the guardian qualifies, an inventory of the guardianship | ||
estate property and a list of claims that have come to the | ||
guardian's knowledge, unless that deadline is extended by court | ||
order; | ||
(3) if required, fails to give a new bond within the | ||
period prescribed; | ||
(4) is absent from the state for a consecutive period | ||
of three or more months without the court's permission, or removes | ||
from the state; | ||
(5) cannot be served with notices or other processes | ||
because: | ||
(A) the guardian's whereabouts are unknown; | ||
(B) the guardian is eluding service; or | ||
(C) the guardian is a nonresident of this state | ||
who does not have a resident agent to accept service of process in | ||
any guardianship proceeding or other matter relating to the | ||
guardianship; | ||
(6) subject to Section 1203.056(a): | ||
(A) has misapplied, embezzled, or removed from | ||
the state, or is about to misapply, embezzle, or remove from the | ||
state, any of the property entrusted to the guardian's care; or | ||
(B) has neglected or cruelly treated a ward; or | ||
(7) has neglected to educate or maintain the ward as | ||
liberally as the means of the ward and the condition of the ward's | ||
estate permit. (Tex. Prob. Code, Sec. 761(a).) | ||
. (a) The court may | ||
remove a guardian on the court's own motion, or on the complaint of | ||
an interested person, after the guardian has been cited by personal | ||
service to answer at a time and place set in the notice, if: | ||
(1) sufficient grounds appear to support a belief that | ||
the guardian has misapplied, embezzled, or removed from the state, | ||
or is about to misapply, embezzle, or remove from the state, any of | ||
the property entrusted to the guardian's care; | ||
(2) the guardian fails to return any account or report | ||
that is required by law to be made; | ||
(3) the guardian fails to obey a proper order of the | ||
court that has jurisdiction with respect to the performance of the | ||
guardian's duties; | ||
(4) the guardian is proved to have been guilty of gross | ||
misconduct or mismanagement in the performance of the guardian's | ||
duties; | ||
(5) the guardian: | ||
(A) becomes incapacitated; | ||
(B) is sentenced to the penitentiary; or | ||
(C) from any other cause, becomes incapable of | ||
properly performing the duties of the guardian's trust; | ||
(6) the guardian neglects or cruelly treats the ward; | ||
(7) the guardian neglects to educate or maintain the | ||
ward as liberally as the means of the ward's estate and the ward's | ||
ability or condition permit; | ||
(8) the guardian interferes with the ward's progress | ||
or participation in programs in the community; | ||
(9) the guardian fails to comply with the requirements | ||
of Subchapter G, Chapter 1104; | ||
(10) the court determines that, because of the | ||
dissolution of the joint guardians' marriage, the termination of | ||
the guardians' joint appointment and the continuation of only one | ||
of the joint guardians as the sole guardian is in the best interest | ||
of the ward; or | ||
(11) the guardian would be ineligible for appointment | ||
as a guardian under Subchapter H, Chapter 1104. | ||
(b) In addition to the authority granted to the court under | ||
Subsection (a), the court may, on the complaint of the Guardianship | ||
Certification Board, remove a guardian who would be ineligible for | ||
appointment under Subchapter H, Chapter 1104, because of the | ||
guardian's failure to maintain the certification required under | ||
Subchapter F, Chapter 1104. The guardian shall be cited to appear | ||
and contest the request for removal under this subsection in the | ||
manner provided by Subsection (a). (Tex. Prob. Code, Secs. 761(c), | ||
(c-1).) | ||
. An order removing a guardian | ||
shall: | ||
(1) state the cause of the removal; | ||
(2) require that, if the removed guardian has been | ||
personally served with citation, any letters of guardianship issued | ||
to the removed guardian be surrendered and that, regardless of | ||
whether the letters have been delivered, all the letters be | ||
canceled of record; and | ||
(3) require the removed guardian to: | ||
(A) deliver any estate property in the guardian's | ||
possession to the persons entitled to the property or to one who has | ||
been appointed and has qualified as successor guardian; and | ||
(B) relinquish control of the ward's person as | ||
required in the order. (Tex. Prob. Code, Sec. 761(d).) | ||
. | ||
With respect to a person who is removed as guardian of the estate | ||
and whose successor is appointed without citation or notice as | ||
provided by Section 1203.102(b), the court may not discharge the | ||
person or release the person or the sureties on the person's bond | ||
until a final order has been issued or final judgment has been | ||
rendered on the guardian's final account. (Tex. Prob. Code, Sec. | ||
761(f) (part).) | ||
GUARDIAN FOLLOWING REMOVAL | ||
person removed as guardian under this subchapter who has any part of | ||
a ward's estate to deliver any part of the estate to a person who has | ||
been appointed and has qualified as successor guardian. (Tex. | ||
Prob. Code, Sec. 761(g).) | ||
CERTAIN CIRCUMSTANCES | ||
Section 1203.051(6)(A) or (B) only on the presentation of clear and | ||
convincing evidence given under oath. | ||
(b) Not later than the 10th day after the date the court | ||
signs the order of removal, a guardian who is removed under Section | ||
1203.051(6)(A) or (B) may file an application with the court for a | ||
hearing to determine whether the guardian should be reinstated. | ||
(c) On the filing of an application under Subsection (b), | ||
the court clerk shall issue to the applicant, the ward, a person | ||
interested in the ward's welfare or estate, and, if applicable, a | ||
person who has control of the care and custody of the ward a notice | ||
stating: | ||
(1) that an application for reinstatement has been | ||
filed; | ||
(2) the name of the ward; and | ||
(3) the name of the applicant for reinstatement. | ||
(d) The notice required by Subsection (c) must cite all | ||
persons interested in the ward's welfare or estate to appear at the | ||
time and place stated in the notice if the persons wish to contest | ||
the application. | ||
(e) If, at the conclusion of a hearing under this section, | ||
the court is satisfied by a preponderance of the evidence that the | ||
applicant did not engage in the conduct that directly led to the | ||
applicant's removal, the court shall: | ||
(1) set aside any order appointing a successor | ||
guardian; and | ||
(2) enter an order reinstating the applicant as | ||
guardian of the ward or estate. | ||
(f) If the court sets aside the appointment of a successor | ||
guardian under this section, the court may require the successor | ||
guardian to prepare and file, under oath, an accounting of the | ||
estate and to detail the disposition the successor has made of the | ||
estate property. (Tex. Prob. Code, Secs. 761(b), 762.) | ||
. If a joint | ||
guardian is removed under Section 1203.052(a)(10), the other joint | ||
guardian is entitled to continue to serve as the sole guardian | ||
unless removed for a reason other than the dissolution of the joint | ||
guardians' marriage. (Tex. Prob. Code, Sec. 761(e).) | ||
[Sections 1203.058-1203.100 reserved for expansion] | ||
SUBCHAPTER C. APPOINTMENT OF SUCCESSOR GUARDIAN; REVOCATION OF | ||
LETTERS | ||
. | ||
Except as otherwise expressly provided by this title, letters of | ||
guardianship may be revoked only: | ||
(1) on application; and | ||
(2) after personal service of citation on the person | ||
whose letters are sought to be revoked requiring the person to | ||
appear and show cause why the application should not be granted. | ||
(Tex. Prob. Code, Sec. 759(f).) | ||
REMOVAL, OR DEATH | ||
the court may appoint a successor guardian on application and on | ||
service of notice as directed by the court, except as provided by | ||
Subsection (b). In the event the guardian of the person or of the | ||
estate of a ward dies, a personal representative of the deceased | ||
guardian, at the time and in the manner ordered by the court, shall | ||
account for, pay, and deliver all guardianship property entrusted | ||
to the representative's care to a person legally entitled to | ||
receive the property. | ||
(b) The court may appoint a successor guardian under this | ||
section without citation or notice if the court finds that a | ||
necessity exists for the immediate appointment. (Tex. Prob. Code, | ||
Secs. 695(a), 759(a), 760(b) (part), 761(f) (part).) | ||
RIGHT | ||
another person applies for letters, the previously issued letters | ||
shall be revoked, and letters shall be granted to the subsequent | ||
applicant if that applicant: | ||
(1) is qualified; | ||
(2) has a prior right to be appointed successor | ||
guardian; and | ||
(3) has not waived that prior right. (Tex. Prob. Code, | ||
Sec. 759(b).) | ||
BECOMES AN ADULT | ||
not an adult when the will was probated is entitled to have letters | ||
of guardianship that were granted to another person revoked and | ||
appropriate letters granted to the named guardian on proof that the | ||
named guardian has become an adult and is not otherwise | ||
disqualified from serving as a guardian. | ||
(b) This subsection applies only if a will names two or more | ||
persons as guardian. A person named as a guardian in the will who | ||
was a minor when the will was probated may, on becoming an adult, | ||
qualify and receive letters of guardianship if: | ||
(1) letters have been issued to the named guardians in | ||
the will who are adults; and | ||
(2) the person is not otherwise disqualified from | ||
receiving letters. (Tex. Prob. Code, Sec. 759(c).) | ||
GUARDIAN NAMED IN WILL | ||
named as guardian in a will who was ill or absent from the state when | ||
the testator died or the will was proved and, as a result, could | ||
not: | ||
(1) present the will for probate not later than the | ||
30th day after the testator's death; or | ||
(2) accept and qualify as guardian not later than the | ||
20th day after the date the will was probated. | ||
(b) A person to whom this section applies may accept and | ||
qualify as guardian not later than the 60th day after the date the | ||
person recovers from illness or returns to the state if proof is | ||
presented to the court that the person was ill or absent. | ||
(c) If a person accepts and qualifies as guardian under | ||
Subsection (b) and letters of guardianship have been issued to | ||
another person, the other person's letters shall be revoked. (Tex. | ||
Prob. Code, Sec. 759(d).) | ||
OF LETTERS | ||
is discovered that the decedent left a lawful will, the letters | ||
shall be revoked and proper letters shall be issued to a person | ||
entitled to the letters. (Tex. Prob. Code, Sec. 759(e).) | ||
CONFLICT | ||
parent, or child of a proposed ward who was disqualified from | ||
serving as guardian because of a litigation conflict under Section | ||
1104.354(1) on the removal of the conflict that caused the | ||
disqualification if the spouse, parent, or child is otherwise | ||
qualified to serve as a guardian. (Tex. Prob. Code, Sec. 759(h).) | ||
DISABILITY SERVICES AS SUCCESSOR GUARDIAN | ||
"department" means the Department of Aging and Disability Services. | ||
(b) The court may appoint the department as a successor | ||
guardian of the person or estate, or both, of a ward who has been | ||
adjudicated as totally incapacitated if: | ||
(1) there is no less-restrictive alternative to | ||
continuation of the guardianship; | ||
(2) there is no family member or other suitable | ||
person, including a guardianship program, willing and able to serve | ||
as the ward's successor guardian; | ||
(3) the ward is located more than 100 miles from the | ||
court that created the guardianship; | ||
(4) the ward has private assets or access to | ||
government benefits to pay for the ward's needs; | ||
(5) the department is served with citation and a | ||
hearing is held regarding the department's appointment as proposed | ||
successor guardian; and | ||
(6) the appointment of the department does not violate | ||
a limitation imposed by Subsection (c). | ||
(c) The number of appointments under Subsection (b) is | ||
subject to an annual limit of 55. The appointments must be | ||
distributed equally or as equally as possible among the health and | ||
human services regions of this state. The department, at the | ||
department's discretion, may establish a different distribution | ||
scheme to promote the efficient use and administration of | ||
resources. | ||
(d) If the department is named as a proposed successor | ||
guardian in an application in which the department is not the | ||
applicant, citation must be issued and served on the department as | ||
provided by Section 1051.103(5). (Tex. Prob. Code, Secs. 695(c), | ||
(d), (e).) | ||
[Sections 1203.109-1203.150 reserved for expansion] | ||
SUBCHAPTER D. SUCCESSOR GUARDIANS FOR WARDS OF GUARDIANSHIP | ||
PROGRAMS OR GOVERNMENTAL ENTITIES | ||
GUARDIAN | ||
serving as a guardian for a ward under this title becomes aware of a | ||
family member or friend of the ward, or any other interested person, | ||
who is willing and able to serve as the ward's successor guardian, | ||
the program or entity shall notify the court in which the | ||
guardianship is pending of the individual's willingness and ability | ||
to serve. | ||
(b) If, while serving as a guardian for a ward under this | ||
title, the Department of Aging and Disability Services becomes | ||
aware of a guardianship program or private professional guardian | ||
willing and able to serve as the ward's successor guardian, and the | ||
department is not aware of a family member or friend of the ward, or | ||
any other interested person, who is willing and able to serve in | ||
that capacity, the department shall notify the court in which the | ||
guardianship is pending of the guardianship program's or private | ||
professional guardian's willingness and ability to serve. (Tex. | ||
Prob. Code, Secs. 695A(a), (a-1).) | ||
GUARDIAN'S QUALIFICATION TO SERVE | ||
the existence of a proposed successor guardian under Section | ||
1203.151(a), or the court otherwise becomes aware of a family | ||
member, a friend, or any other interested person who is willing and | ||
able to serve as a successor guardian for a ward of a guardianship | ||
program or governmental entity, the court shall determine whether | ||
the proposed successor guardian is qualified to serve under this | ||
title as the ward's successor guardian. (Tex. Prob. Code, Sec. | ||
695A(b).) | ||
. | ||
(a) If the court finds under Section 1203.152 that the proposed | ||
successor guardian for a ward is not disqualified from being | ||
appointed as the ward's successor guardian under Subchapter H, | ||
Chapter 1104, and that the appointment is in the ward's best | ||
interests, the guardianship program or governmental entity serving | ||
as the ward's guardian or the court, on the court's own motion, may | ||
file an application to appoint the individual as the ward's | ||
successor guardian. | ||
(b) Service of notice on an application filed under this | ||
section shall be made as directed by the court. (Tex. Prob. Code, | ||
Sec. 695A(c).) | ||
[Sections 1203.154-1203.200 reserved for expansion] | ||
SUBCHAPTER E. PROCEDURES AFTER RESIGNATION, REMOVAL, OR DEATH OF | ||
GUARDIAN | ||
VACANT | ||
another thing of value falling due to a ward while the office of | ||
guardian is vacant to the court clerk for the credit of the ward. | ||
(b) Payment or tender under Subsection (a) discharges the | ||
debtor, obligor, or payor of the obligation for all purposes to the | ||
extent and purpose of the payment or tender. | ||
(c) The court clerk shall issue a receipt for any payment or | ||
tender accepted under this section. (Tex. Prob. Code, Sec. | ||
759(g).) | ||
GUARDIAN | ||
is subject to all the duties of the predecessor. | ||
(b) A guardian who accepts appointment and qualifies after | ||
letters of guardianship have been granted on the estate shall: | ||
(1) succeed in like manner to the predecessor; and | ||
(2) administer the estate in like manner as if the | ||
guardian's administration were a continuation of the former | ||
administration. | ||
(c) A successor guardian may: | ||
(1) make himself or herself, and be made, a party to a | ||
suit prosecuted by or against the successor's predecessor; | ||
(2) settle with the predecessor and receive and give a | ||
receipt for any portion of the estate property that remains in the | ||
successor's possession; or | ||
(3) commence a suit on the bond or bonds of the | ||
predecessor, in the successor's own name and capacity, for all the | ||
estate property that: | ||
(A) came into the predecessor's possession; and | ||
(B) has not been accounted for by the | ||
predecessor. (Tex. Prob. Code, Secs. 695(b), 763, 764.) | ||
APPRAISEMENT, AND LIST OF CLAIMS | ||
qualified to succeed a former guardian shall, in the manner | ||
required of an original appointee: | ||
(1) make and return to the court an inventory, | ||
appraisement, and list of claims of the estate not later than the | ||
30th day after the date the successor qualifies; and | ||
(2) return additional inventories, appraisements, and | ||
lists of claims. | ||
(b) On the application of any person interested in the | ||
estate, the court shall, in an order appointing a successor | ||
guardian, appoint an appraiser as in an original appointment of a guardian. (Tex. Prob. Code, Sec. 765.) | ||
CHAPTER 1204. FINAL SETTLEMENT, ACCOUNTING, AND DISCHARGE | ||
SUBCHAPTER A. TIME FOR SETTLEMENT OF GUARDIANSHIP | ||
Sec. 1204.001. SETTLEMENT OF GUARDIANSHIP | ||
Sec. | 1204.002. APPOINTMENT OF ATTORNEY AD LITEM TO | |
UNDER CERTAIN CIRCUMSTANCES | ||
[Sections 1204.003-1204.050 reserved for expansion] | ||
SUBCHAPTER B. PAYMENT OF CERTAIN EXPENSES AND DEBTS | ||
Sec. | 1204.051. FUNERAL ARRANGEMENTS AND OTHER DEBTS; | |
COMPLAINT OF PERSONAL REPRESENTATIVE | ||
Sec. | 1204.052. TAXES AND EXPENSES OF ADMINISTRATION; | |
SALE OF ESTATE PROPERTY | ||
Sec. | 1204.053. INHERITANCE TAXES; LIMITATION ON | |
CLOSING ESTATE | ||
[Sections 1204.054-1204.100 reserved for expansion] | ||
SUBCHAPTER C. ACCOUNT FOR FINAL SETTLEMENT | ||
Sec. 1204.101. VERIFIED ACCOUNT REQUIRED | ||
Sec. 1204.102. CONTENTS OF ACCOUNT | ||
Sec. | 1204.103. CERTAIN DEBTS EXCLUDED FROM SETTLEMENT | |
COMPUTATION | ||
Sec. | 1204.104. GUARDIAN TO ACCOUNT FOR WARD'S LABOR OR | |
SERVICES | ||
Sec. | 1204.105. CITATION AND NOTICE ON PRESENTATION OF | |
ACCOUNT | ||
Sec. 1204.106. EXAMINATION OF AND HEARING ON ACCOUNT | ||
Sec. | 1204.107. ASSETS BECOMING DUE PENDING FINAL | |
SETTLEMENT; RECEIPT AND DISCHARGE | ||
Sec. | 1204.108. DELIVERY OF WARD'S PROPERTY IN | |
ESTATE | ||
Sec. 1204.109. DELIVERY OF REMAINING ESTATE PROPERTY | ||
[Sections 1204.110-1204.150 reserved for expansion] | ||
SUBCHAPTER D. CLOSING OF GUARDIANSHIP AND DISCHARGE OF GUARDIAN | ||
Sec. | 1204.151. DISCHARGE OF GUARDIAN WHEN NO ESTATE | |
PROPERTY REMAINS | ||
Sec. | 1204.152. DISCHARGE OF GUARDIAN WHEN ESTATE FULLY | |
ADMINISTERED | ||
[Sections 1204.153-1204.200 reserved for expansion] | ||
SUBCHAPTER E. FAILURE OF GUARDIAN TO ACT | ||
Sec. | 1204.201. FAILURE TO PRESENT FINAL ACCOUNT OR | |
REPORT | ||
Sec. | 1204.202. LIABILITY FOR FAILURE TO DELIVER ESTATE | |
PROPERTY | ||
CHAPTER 1204. FINAL SETTLEMENT, ACCOUNTING, AND DISCHARGE | ||
SUBCHAPTER A. TIME FOR SETTLEMENT OF GUARDIANSHIP | ||
. (a) A | ||
guardianship shall be settled and closed as provided by this | ||
section and Section 1202.001. | ||
(b) A guardianship of the estate of a ward shall be settled | ||
when: | ||
(1) the ward dies; | ||
(2) a minor ward becomes an adult by: | ||
(A) becoming 18 years of age; | ||
(B) removal of disabilities of minority | ||
according to the law of this state; or | ||
(C) marriage; | ||
(3) an incapacitated ward is decreed as provided by | ||
law to have been restored to full legal capacity; | ||
(4) the spouse of a married ward has qualified as | ||
survivor in community and the ward does not own separate property; | ||
(5) the ward's estate is exhausted; | ||
(6) the foreseeable income accruing to the ward or to | ||
the ward's estate is so negligible that maintaining the | ||
guardianship in force would be burdensome; | ||
(7) all of the assets of the estate have been placed in | ||
a management trust under Chapter 1301 and the court determines that | ||
a guardianship for the ward is no longer necessary; or | ||
(8) the court determines for any other reason that a | ||
guardianship for the ward is no longer necessary. | ||
(c) In a case arising under Subsection (b)(6), the court may | ||
authorize the income to be paid to a parent, or other person who has | ||
acted as guardian of the ward, to assist in the maintenance of the | ||
ward and without liability to account to the court for the income. | ||
(d) If the estate of a minor ward consists only of cash or | ||
cash equivalents in an amount of $100,000 or less, the guardianship | ||
of the estate may be terminated and the assets paid to the county | ||
clerk of the county in which the guardianship proceeding is | ||
pending, and the clerk shall manage the funds as provided by Chapter | ||
1355. | ||
(e) In the settlement of a guardianship of the estate, the | ||
court may appoint an attorney ad litem to represent the ward's | ||
interests and may allow the attorney reasonable compensation for | ||
services provided by the attorney out of the ward's estate. (Tex. | ||
Prob. Code, Sec. 745; New.) | ||
REPRESENT WARD IN FINAL SETTLEMENT UNDER CERTAIN CIRCUMSTANCES | ||
(a) The court may appoint an attorney ad litem to represent the | ||
ward's interest in the final settlement with the guardian if: | ||
(1) the ward is deceased and there is no executor or | ||
administrator of the ward's estate; | ||
(2) the ward is a nonresident; or | ||
(3) the ward's residence is unknown. | ||
(b) The court shall allow the attorney ad litem appointed | ||
under this section reasonable compensation out of the ward's estate | ||
for any services provided by the attorney. (Tex. Prob. Code, Sec. | ||
755.) | ||
[Sections 1204.003-1204.050 reserved for expansion] | ||
SUBCHAPTER B. PAYMENT OF CERTAIN EXPENSES AND DEBTS | ||
ACCOUNT FOR FINAL SETTLEMENT ON COMPLAINT OF PERSONAL | ||
REPRESENTATIVE | ||
ward is closed on the ward's death, the guardian may, subject to the | ||
court's approval, make all funeral arrangements and pay the funeral | ||
expenses and all other debts out of the deceased ward's estate. If | ||
a personal representative of the estate of a deceased ward is | ||
appointed, the court shall on the written complaint of the personal | ||
representative have the guardian of the deceased ward cited to | ||
appear and present an account for final settlement as provided by | ||
Section 1204.101. (Tex. Prob. Code, Sec. 746.) | ||
OF ESTATE PROPERTY | ||
title, a probate court in which proceedings to declare heirship are | ||
maintained may order: | ||
(1) the guardian to pay any taxes or expenses of | ||
administering the estate; and | ||
(2) the sale of property in the ward's estate, when | ||
necessary, to: | ||
(A) pay the taxes or expenses of administering | ||
the estate; or | ||
(B) distribute the estate among the heirs. (Tex. | ||
Prob. Code, Sec. 748.) | ||
ESTATE | ||
under this code, a deceased ward's estate may not be closed unless | ||
the account for final settlement shows and the court finds that all | ||
inheritance taxes due and owing to this state with respect to all | ||
interests and property passing through the guardian's possession | ||
have been paid. (Tex. Prob. Code, Sec. 754.) | ||
[Sections 1204.054-1204.100 reserved for expansion] | ||
SUBCHAPTER C. ACCOUNT FOR FINAL SETTLEMENT | ||
. A guardian of | ||
the estate shall present to the court the guardian's verified | ||
account for final settlement when the guardianship of the estate is | ||
required to be settled. (Tex. Prob. Code, Sec. 749 (part).) | ||
. (a) Except as provided | ||
by Subsection (b), it is sufficient for an account for final | ||
settlement to: | ||
(1) refer to the inventory without describing each | ||
item of property in detail; and | ||
(2) refer to and adopt any guardianship proceeding | ||
concerning sales, renting, leasing for mineral development, or any | ||
other transaction on behalf of the guardianship estate, including | ||
an exhibit, account, or voucher previously filed and approved, | ||
without restating the particular items. | ||
(b) An account for final settlement shall be accompanied by | ||
proper vouchers supporting each item included in the account for | ||
which the guardian has not already accounted and, either by | ||
reference to any proceeding described by Subsection (a) or by a | ||
statement of the facts, must show: | ||
(1) the property, rents, revenues, and profits | ||
received by the guardian, and belonging to the ward, during the term | ||
of the guardianship; | ||
(2) the disposition made of the property, rents, | ||
revenues, and profits; | ||
(3) any expenses and debts against the estate that | ||
remain unpaid; | ||
(4) any estate property that remains in the guardian's | ||
possession; | ||
(5) that the guardian has paid all required bond | ||
premiums; | ||
(6) the tax returns the guardian has filed during the | ||
guardianship; | ||
(7) the amount of taxes the ward owed during the | ||
guardianship that the guardian has paid; | ||
(8) a complete account of the taxes the guardian has | ||
paid during the guardianship, including: | ||
(A) the amount of the taxes; | ||
(B) the date the guardian paid the taxes; and | ||
(C) the name of the governmental entity to which | ||
the guardian paid the taxes; | ||
(9) a description of all current delinquencies in the | ||
filing of tax returns and the payment of taxes, including a reason | ||
for each delinquency; and | ||
(10) other facts as appear necessary to a full and | ||
definite understanding of the exact condition of the guardianship. | ||
(Tex. Prob. Code, Sec. 749 (part).) | ||
COMPUTATION | ||
guardian of the estate, all debts due the estate that the court is | ||
satisfied could not have been collected by due diligence and that | ||
have not been collected shall be excluded from the computation. | ||
(Tex. Prob. Code, Sec. 756.) | ||
SERVICES | ||
shall account for: | ||
(1) the reasonable value of labor or services provided | ||
by the ward; or | ||
(2) the proceeds of labor or services provided by the | ||
ward. | ||
(b) The guardian is entitled to reasonable credits for the | ||
board, clothing, and maintenance of the ward. (Tex. Prob. Code, | ||
Sec. 757.) | ||
ACCOUNT | ||
a guardian of the estate of a ward, the county clerk shall issue | ||
citation to the persons and in the manner provided by this section. | ||
(b) Citation issued under Subsection (a) must contain: | ||
(1) a statement that an account for final settlement | ||
has been presented; | ||
(2) the time and place the court will consider the | ||
account; and | ||
(3) a statement requiring the person cited to appear | ||
and contest the account, if the person determines contesting the | ||
account is proper. | ||
(c) Except as provided by Subsection (d) or (e), the county | ||
clerk shall: | ||
(1) issue a citation to be personally served on a ward | ||
if: | ||
(A) the ward is 14 years of age or older; | ||
(B) the ward is a living resident of this state; | ||
and | ||
(C) the ward's residence is known; | ||
(2) issue a citation to be personally served on the | ||
executor or administrator of a deceased ward's estate, if one has | ||
been appointed; and | ||
(3) issue a citation to a ward or the ward's estate by | ||
publication, or by posting if directed by written court order, if: | ||
(A) the ward's residence is unknown; | ||
(B) the ward is not a resident of this state; or | ||
(C) the ward is deceased and no representative of | ||
the ward's estate has been appointed and has qualified in this | ||
state. | ||
(d) The ward, in person or by attorney, may waive by writing | ||
filed with the county clerk the issuance and personal service of | ||
citation required by Subsection (c)(1). | ||
(e) Service of citation is not required under Subsection | ||
(c)(2) if the executor or administrator is the same person as the | ||
guardian. | ||
(f) The court may allow the waiver of notice of an account | ||
for final settlement in a guardianship proceeding. | ||
(g) The court by written order shall require additional | ||
notice if the court considers the additional notice necessary. | ||
(Tex. Prob. Code, Sec. 751.) | ||
. (a) | ||
On the court's satisfaction that citation has been properly served | ||
on all persons interested in the guardianship estate, the court | ||
shall examine the account for final settlement and the accompanying | ||
vouchers. | ||
(b) After hearing all exceptions or objections to the | ||
account and evidence in support of or against the account, the court | ||
shall audit and settle the account and, if necessary, restate the | ||
account. (Tex. Prob. Code, Sec. 752(a).) | ||
SETTLEMENT; RECEIPT AND DISCHARGE | ||
to money or another thing of value held under Section 1105.153. | ||
(b) Until the order of final discharge of the guardian is | ||
entered in the judge's guardianship docket, money or another thing | ||
of value falling due to the ward or the ward's estate while the | ||
account for final settlement is pending may be paid or tendered to | ||
the emancipated ward, the guardian, or the personal representative | ||
of the deceased ward's estate. The ward, guardian, or personal | ||
representative to whom the money or other thing of value is paid or | ||
tendered shall issue a receipt for the money or other thing of | ||
value, and the obligor or payor is discharged of the obligation for | ||
all purposes. (Tex. Prob. Code, Sec. 753.) | ||
GUARDIAN OF THE PERSON ON SETTLEMENT OF GUARDIANSHIP OF THE ESTATE | ||
(a) If the guardianship of a ward is required to be settled as | ||
provided by Section 1204.001, the guardian of the person shall | ||
deliver all of the ward's property in the guardian's possession or | ||
control to the emancipated ward or other person entitled to the | ||
property. If the ward is deceased, the guardian shall deliver the | ||
property to the personal representative of the deceased ward's | ||
estate or other person entitled to the property. | ||
(b) If none of the ward's property is in the guardian of the | ||
person's possession or control, the guardian shall, not later than | ||
the 60th day after the date the guardianship is required to be | ||
settled, file with the court a sworn affidavit that states: | ||
(1) the reason the guardianship was terminated; and | ||
(2) to whom the ward's property in the guardian's | ||
possession was delivered. | ||
(c) The judge may issue orders as necessary for the best | ||
interests of the ward or the deceased ward's estate. | ||
(d) This section does not discharge a guardian of the person | ||
from liability for breach of the guardian's fiduciary duties. | ||
(Tex. Prob. Code, Sec. 747.) | ||
. On | ||
final settlement of a guardianship estate, the court shall order | ||
that any part of the estate that remains in the guardian's | ||
possession be delivered to: | ||
(1) the ward; | ||
(2) the personal representative of the ward's estate, | ||
if the ward is deceased and a personal representative has been | ||
appointed; or | ||
(3) any other person legally entitled to the estate. | ||
(Tex. Prob. Code, Sec. 752(b).) | ||
[Sections 1204.110-1204.150 reserved for expansion] | ||
SUBCHAPTER D. CLOSING OF GUARDIANSHIP AND DISCHARGE OF GUARDIAN | ||
PROPERTY REMAINS | ||
guardian from the guardian's trust and closing the guardianship | ||
estate if, on final settlement of the estate, none of the estate | ||
remains in the guardian's possession. (Tex. Prob. Code, Sec. | ||
752(c).) | ||
ADMINISTERED | ||
guardian of the estate from the guardian's trust 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. (Tex. Prob. Code, Sec. 752(d).) | ||
[Sections 1204.153-1204.200 reserved for expansion] | ||
SUBCHAPTER E. FAILURE OF GUARDIAN TO ACT | ||
. | ||
(a) The court may, on the court's own motion, and shall, on the | ||
written complaint of the emancipated ward or anyone interested in | ||
the ward or the ward's estate, have the guardian who is charged with | ||
the duty of presenting a final account or report cited to appear and | ||
present the account or report within the time specified in the | ||
citation if the guardian failed or neglected to present the account | ||
or report at the proper time. | ||
(b) If a written complaint has not been filed by anyone | ||
interested in the guardianship of the person or estate of a minor or | ||
deceased ward, on or after the third anniversary of the date the | ||
minor ward reaches the age of majority or the date the ward dies, as | ||
applicable, the court may remove the estate from the court's active | ||
docket without a final accounting and without appointing a | ||
successor personal representative. | ||
(c) If a complaint has not been filed by anyone interested | ||
in the estate of a ward whose whereabouts are unknown to the court, | ||
on or after the fourth anniversary of the date the ward's | ||
whereabouts became unknown to the court, the court may remove the | ||
estate from the court's active docket without a final accounting | ||
and without appointing a successor personal representative. (Tex. | ||
Prob. Code, Sec. 750.) | ||
PROPERTY | ||
guardianship of the estate, if the guardian neglects when legally | ||
demanded to deliver a portion of the estate or any funds or money in | ||
the guardian's possession ordered to be delivered to a person | ||
entitled to that property, the person may file with the court clerk | ||
a written complaint alleging: | ||
(1) the fact of the neglect; | ||
(2) the date of the person's demand; and | ||
(3) other relevant facts. | ||
(b) After the filing of a complaint under Subsection (a), | ||
the court clerk shall issue a citation to be served personally on | ||
the guardian. The citation must: | ||
(1) apprise the guardian of the complaint; and | ||
(2) cite the guardian to appear before the court and | ||
answer, if the guardian desires, at a time designated in the | ||
citation. | ||
(c) If at the hearing the court finds that the citation was | ||
properly served and returned, and that the guardian is guilty of the | ||
neglect charged, the court shall enter an order to that effect. | ||
(d) If the court enters an order under Subsection (c), the | ||
guardian is liable to the person who filed the complaint under | ||
Subsection (a) for damages at the rate of 10 percent of the amount | ||
or appraised value of the money or estate withheld, per month, for | ||
each month or fraction of a month that the estate or money of a | ||
guardianship of the estate, or on termination of guardianship of | ||
the person, or funds is or has been withheld by the guardian after | ||
the date of demand. Damages under this subsection may be recovered | ||
in any court of competent jurisdiction. (Tex. Prob. Code, Sec. | ||
758.) | ||
SUBTITLE G. SPECIAL TYPES OF GUARDIANSHIPS | ||
CHAPTER 1251. TEMPORARY GUARDIANSHIPS | ||
SUBCHAPTER A. APPOINTMENT OF TEMPORARY GUARDIAN GENERALLY | ||
Sec. 1251.001. APPOINTMENT OF TEMPORARY GUARDIAN | ||
Sec. 1251.002. NO PRESUMPTION OF INCAPACITY | ||
Sec. 1251.003. APPLICATION | ||
Sec. 1251.004. APPOINTMENT OF ATTORNEY | ||
Sec. 1251.005. NOTICE OF APPLICATION | ||
Sec. 1251.006. SCHEDULING OF HEARING | ||
Sec. 1251.007. MOTION FOR DISMISSAL OF APPLICATION | ||
Sec. 1251.008. RIGHTS OF PROPOSED WARD AT HEARING | ||
Sec. | 1251.009. APPEARANCE BY PROPOSED TEMPORARY | |
GUARDIAN IN CERTAIN CIRCUMSTANCES | ||
Sec. 1251.010. ORDER APPOINTING TEMPORARY GUARDIAN | ||
Sec. 1251.011. CERTAIN AGENCY AS TEMPORARY GUARDIAN | ||
Sec. 1251.012. TEMPORARY GUARDIAN'S BOND | ||
Sec. 1251.013. COURT COSTS | ||
[Sections 1251.014-1251.050 reserved for expansion] | ||
SUBCHAPTER B. TEMPORARY GUARDIANSHIP PENDING CHALLENGE OR CONTEST | OF CERTAIN GUARDIANSHIP APPLICATIONS | |
OF CERTAIN GUARDIANSHIP APPLICATIONS | ||
Sec. | 1251.051. AUTHORITY TO APPOINT TEMPORARY GUARDIAN | |
OR GRANT RESTRAINING ORDER | ||
Sec. | 1251.052. QUALIFICATION AND DURATION OF CERTAIN | |
TEMPORARY GUARDIANSHIPS | ||
[Sections 1251.053-1251.100 reserved for expansion] | ||
SUBCHAPTER C. POWERS AND DUTIES OF TEMPORARY GUARDIANS | ||
Sec. 1251.101. AUTHORITY OF TEMPORARY GUARDIAN | ||
Sec. | 1251.102. APPLICABILITY OF GUARDIANSHIP | |
PROVISIONS | ||
[Sections 1251.103-1251.150 reserved for expansion] | ||
SUBCHAPTER D. EXPIRATION AND CLOSING OF TEMPORARY GUARDIANSHIP | ||
Sec. 1251.151. DURATION OF TEMPORARY GUARDIANSHIP | ||
Sec. 1251.152. ACCOUNTING | ||
Sec. | 1251.153. DELIVERY OF ESTATE; DISCHARGE OF | |
TEMPORARY GUARDIAN | ||
CHAPTER 1251. TEMPORARY GUARDIANSHIPS | ||
SUBCHAPTER A. APPOINTMENT OF TEMPORARY GUARDIAN GENERALLY | ||
. (a) A | ||
court shall appoint a temporary guardian, with limited powers as | ||
the circumstances of the case require, 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 person, the | ||
person's estate, or both require the immediate appointment of a | ||
guardian. | ||
(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. (Tex. Prob. Code, Secs. 875(a), (b).) | ||
. A person for | ||
whom a temporary guardian is appointed under this chapter may not be | ||
presumed to be incapacitated. (Tex. Prob. Code, Sec. 874.) | ||
. (a) A sworn, written | ||
application for the appointment of a temporary guardian shall be | ||
filed before the court appoints a temporary guardian. | ||
(b) The application must state: | ||
(1) the name and address of the person who is the | ||
subject of the guardianship proceeding; | ||
(2) the danger to the person or property alleged to be | ||
imminent; | ||
(3) the type of appointment and the particular | ||
protection and assistance being requested; | ||
(4) the facts and reasons supporting the allegations | ||
and requests; | ||
(5) the proposed temporary guardian's name, address, | ||
and qualification; | ||
(6) the applicant's name, address, and interest; and | ||
(7) if applicable, that the proposed temporary | ||
guardian is a private professional guardian who is certified under | ||
Subchapter C, Chapter 111, Government Code, and has complied with | ||
the requirements of Subchapter G, Chapter 1104. (Tex. Prob. Code, | ||
Sec. 875(c).) | ||
. On the filing of an | ||
application for temporary guardianship, the court shall appoint an | ||
attorney to represent the proposed ward in all guardianship | ||
proceedings in which independent counsel has not been retained by | ||
or on behalf of the proposed ward. (Tex. Prob. Code, Sec. 875(d).) | ||
. (a) On the filing of | ||
an application for temporary guardianship, the clerk shall issue | ||
notice to be served on: | ||
(1) the proposed ward; | ||
(2) the proposed ward's appointed attorney; and | ||
(3) 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. (Tex. Prob. Code, Sec. 875(e).) | ||
. (a) Immediately | ||
after an application for a temporary guardianship is filed, 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 the 10th day after the date the | ||
application for temporary guardianship is filed. | ||
(c) The proposed ward or the proposed ward's attorney may | ||
consent to postpone the hearing on the application for temporary | ||
guardianship for a period not to exceed 30 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. (Tex. Prob. Code, Secs. 875(f)(1) (part), (2), (3), | ||
(4).) | ||
. (a) | ||
Subject to Subsection (b), the proposed ward or the proposed ward's | ||
attorney may appear and move for the dismissal of the application | ||
for temporary guardianship. | ||
(b) At least one day before making a motion under Subsection | ||
(a), the proposed ward or the proposed ward's attorney 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. (Tex. Prob. Code, | ||
Sec. 875(f)(5).) | ||
. 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 | ||
or the proposed ward's attorney. (Tex. Prob. Code, Sec. 875(f)(1) | ||
(part).) | ||
CERTAIN CIRCUMSTANCES | ||
guardianship is not the proposed temporary guardian, a temporary | ||
guardianship may not be granted before a hearing on the application | ||
required by Section 1251.006(b) unless the proposed temporary | ||
guardian appears in court. (Tex. Prob. Code, Sec. 875(f)(6).) | ||
. (a) | ||
The court shall appoint a temporary guardian by written order if, at | ||
the conclusion of the hearing required by Section 1251.006(b), the | ||
court determines that the applicant has established that there is | ||
substantial evidence that the proposed ward is an incapacitated | ||
person, that there is imminent danger that the proposed ward's | ||
physical health or safety will be seriously impaired, or that the | ||
proposed ward's estate will be seriously damaged or dissipated | ||
unless immediate action is taken. | ||
(b) The court shall assign to the temporary guardian only | ||
those powers and duties that are necessary to protect the proposed | ||
ward against the imminent danger shown. | ||
(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. | ||
(Tex. Prob. Code, Sec. 875(g) (part).) | ||
. A | ||
court may not ordinarily appoint the Department of Aging and | ||
Disability Services as a temporary guardian under this chapter. | ||
The appointment of the department as a temporary guardian under | ||
this chapter should be made only as a last resort. (Tex. Prob. | ||
Code, Sec. 875(j).) | ||
. The court shall | ||
set bond for a temporary guardian according to Chapter 1105. (Tex. | ||
Prob. Code, Sec. 875(g) (part).) | ||
. 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 1155.051, 1155.151, and 665B. | ||
(Tex. Prob. Code, Sec. 875(i).) | ||
[Sections 1251.014-1251.050 reserved for expansion] | ||
SUBCHAPTER B. TEMPORARY GUARDIANSHIP PENDING CHALLENGE OR CONTEST | ||
OF CERTAIN GUARDIANSHIP APPLICATIONS | ||
GRANT RESTRAINING ORDER | ||
the motion of any interested party, may appoint a temporary | ||
guardian or grant a temporary restraining order under Rule 680, | ||
Texas Rules of Civil Procedure, or both, without issuing additional | ||
citation if: | ||
(1) an application for a temporary guardianship, for | ||
the conversion of a temporary guardianship to a permanent | ||
guardianship, or for a permanent guardianship is challenged or | ||
contested; and | ||
(2) the court finds that the appointment or the | ||
issuance of the order is necessary to protect the proposed ward or | ||
the proposed ward's estate. (Tex. Prob. Code, Sec. 875(k).) | ||
TEMPORARY GUARDIANSHIPS | ||
Section 1251.051 must qualify in the same form and manner required | ||
of a guardian under this title. | ||
(b) The term of a temporary guardian appointed under Section | ||
1251.051 expires: | ||
(1) at the conclusion of the hearing challenging or | ||
contesting the application; or | ||
(2) on the date a permanent guardian appointed by the | ||
court for the proposed ward qualifies to serve as the ward's | ||
guardian. (Tex. Prob. Code, Sec. 875(l).) | ||
[Sections 1251.053-1251.100 reserved for expansion] | ||
SUBCHAPTER C. POWERS AND DUTIES OF TEMPORARY GUARDIANS | ||
. (a) When | ||
the temporary guardian files the oath and 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 and bond | ||
requirements 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 and bond requirements are satisfied. (Tex. Prob. | ||
Code, Sec. 876.) | ||
. | ||
The provisions of this title relating to the guardianship of the | ||
persons and estates of incapacitated persons apply to the temporary | ||
guardianship of the persons and estates of incapacitated persons, | ||
to the extent the provisions may be made applicable. (Tex. Prob. | ||
Code, Sec. 877.) | ||
[Sections 1251.103-1251.150 reserved for expansion] | ||
SUBCHAPTER D. EXPIRATION AND CLOSING OF TEMPORARY GUARDIANSHIP | ||
. Except | ||
as provided by Section 1251.052, a temporary guardianship may not | ||
remain in effect for more than 60 days. (Tex. Prob. Code, Sec. | ||
875(h).) | ||
. (a) At the expiration of a | ||
temporary guardianship, 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; | ||
(2) a return of all sales made by the temporary | ||
guardian; and | ||
(3) a full exhibit and account of all the temporary | ||
guardian's acts as temporary guardian. | ||
(b) The court shall act on the list, return, exhibit, and | ||
account filed under Subsection (a). (Tex. Prob. Code, Secs. 878, | ||
879 (part).) | ||
GUARDIAN | ||
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): | ||
(1) the temporary guardian shall be discharged; and | ||
(2) the sureties on the temporary guardian's bond | ||
shall be released as to future liability. (Tex. Prob. Code, Sec. 879 (part).) | ||
CHAPTER 1252. GUARDIANSHIPS FOR NONRESIDENT WARDS | ||
SUBCHAPTER A. | RESIDENT GUARDIAN OF NONRESIDENT WARD'S ESTATE | |
Sec. | 1252.001. GRANTING OF GUARDIANSHIP OF ESTATE FOR | |
NONRESIDENT | ||
Sec. | 1252.002. COURT ACTIONS AND ORDERS CONCERNING | |
ESTATE | ||
Sec. 1252.003. CLOSING RESIDENT GUARDIANSHIP | ||
[Sections 1252.004-1252.050 reserved for expansion] | ||
SUBCHAPTER B. NONRESIDENT GUARDIAN OF NONRESIDENT WARD'S ESTATE | ||
Sec. | 1252.051. APPOINTMENT AND QUALIFICATION OF | |
NONRESIDENT GUARDIAN | ||
Sec. | 1252.052. APPOINTMENT; ISSUANCE OF LETTERS OF | |
GUARDIANSHIP | ||
Sec. | 1252.053. INVENTORY AND APPRAISEMENT; | |
ADMINISTRATION OF ESTATE | ||
Sec. 1252.054. DELIVERY OF ESTATE TO CERTAIN GUARDIANS | ||
Sec. | 1252.055. REMOVAL OF WARD'S PROPERTY FROM STATE | |
BY NONRESIDENT GUARDIAN | ||
CHAPTER 1252. GUARDIANSHIPS FOR NONRESIDENT WARDS | ||
SUBCHAPTER A. RESIDENT GUARDIAN OF NONRESIDENT WARD'S ESTATE | ||
NONRESIDENT | ||
incapacitated person who owns property in this state may be | ||
granted, if necessary, in the same manner as for the property of a | ||
resident of this state. | ||
(b) A court in the county in which the principal estate of | ||
the nonresident incapacitated person is located has jurisdiction to | ||
appoint the guardian. (Tex. Prob. Code, Sec. 882 (part).) | ||
. | ||
The court shall take all actions and make all necessary orders with | ||
respect to the estate described by Section 1252.001 of a | ||
nonresident ward for the maintenance, support, care, or education | ||
of the ward out of the proceeds of the estate, in the same manner as | ||
if the ward were a resident of this state sent abroad by the court | ||
for education or treatment. (Tex. Prob. Code, Sec. 882 (part).) | ||
. The court | ||
shall close a resident guardianship of an estate granted under this | ||
subchapter if a qualified nonresident guardian of the estate later | ||
qualifies in this state under Section 1252.051 as a nonresident | ||
guardian. (Tex. Prob. Code, Sec. 882 (part).) | ||
[Sections 1252.004-1252.050 reserved for expansion] | ||
SUBCHAPTER B. NONRESIDENT GUARDIAN OF NONRESIDENT WARD'S ESTATE | ||
NONRESIDENT GUARDIAN | ||
appointed and qualified as guardian or coguardian of a nonresident | ||
ward's estate located in this state in the same manner provided by | ||
this title for the appointment and qualification of a resident | ||
guardian of the estate of an incapacitated person if: | ||
(1) a court of competent jurisdiction in the | ||
geographical jurisdiction in which the nonresident resides | ||
appointed the nonresident guardian; | ||
(2) the nonresident is qualified as guardian or as a | ||
fiduciary legal representative by any name known in the foreign | ||
jurisdiction of the property or estate of the ward located in the | ||
jurisdiction of the foreign court; and | ||
(3) the nonresident, with the written application for | ||
appointment, files in the county court of a county of this state in | ||
which all or part of the nonresident ward's estate is located a | ||
complete transcript of the proceedings from the records of the | ||
court in which the nonresident applicant was appointed. | ||
(b) The transcript required by Subsection (a)(3) must: | ||
(1) show the applicant's appointment and qualification | ||
as guardian or other fiduciary legal representative of the ward's | ||
property or estate; | ||
(2) be certified to and attested by the clerk of the | ||
foreign court or the court officer charged by law with custody of | ||
the court records, under the court seal, if any; and | ||
(3) have attached a certificate of the judge, chief | ||
justice, or presiding magistrate of the foreign court certifying | ||
that the attestation of the clerk or legal custodian of the court | ||
records is in correct form. (Tex. Prob. Code, Secs. 881(a), (b).) | ||
GUARDIANSHIP | ||
requirements of Section 1252.051, without the necessity of notice | ||
or citation, the court shall enter an order appointing the | ||
nonresident as guardian or coguardian of a nonresident ward's | ||
estate located in this state. | ||
(b) After the nonresident applicant qualifies in the manner | ||
required of resident guardians and files with the court a power of | ||
attorney appointing a resident agent to accept service of process | ||
in all actions or proceedings with respect to the estate, the clerk | ||
shall issue the letters of guardianship to the nonresident | ||
guardian. (Tex. Prob. Code, Sec. 881(c).) | ||
OF ESTATE | ||
(1) shall file an inventory and appraisement of the | ||
ward's estate in this state subject to the court's jurisdiction, as | ||
in ordinary cases; and | ||
(2) is subject to the applicable provisions of this | ||
code governing the handling and settlement of an estate by a | ||
resident guardian. (Tex. Prob. Code, Sec. 881(d).) | ||
. | ||
The court may order a resident guardian who has any of the ward's | ||
estate to deliver the estate to a qualified and acting guardian of | ||
the ward. (Tex. Prob. Code, Sec. 881(e).) | ||
NONRESIDENT GUARDIAN | ||
title, a nonresident guardian may remove personal property of the | ||
ward from this state if: | ||
(1) the removal does not conflict with the tenure of | ||
the property or the terms of the guardianship under which the | ||
property is held; and | ||
(2) all known debts against the estate in this state | ||
are paid or secured by a bond payable to and approved by the judge of | ||
the court in which guardianship proceedings are pending in this state. (Tex. Prob. Code, Sec. 881A.) | ||
CHAPTER 1253. INTERSTATE GUARDIANSHIPS | ||
SUBCHAPTER A. TRANSFER OF GUARDIANSHIP TO FOREIGN JURISDICTION | ||
Sec. | 1253.001. APPLICATION TO TRANSFER GUARDIANSHIP TO | |
FOREIGN JURISDICTION | ||
Sec. 1253.002. NOTICE OF APPLICATION | ||
Sec. | 1253.003. DETERMINATION REGARDING TRANSFER OF | |
GUARDIANSHIP | ||
[Sections 1253.004-1253.050 reserved for expansion] | ||
SUBCHAPTER B. RECEIPT AND ACCEPTANCE OF FOREIGN GUARDIANSHIP | ||
Sec. | 1253.051. APPLICATION FOR RECEIPT AND ACCEPTANCE | |
OF FOREIGN GUARDIANSHIP | ||
Sec. 1253.052. NOTICE OF APPLICATION | ||
Sec. | 1253.053. DETERMINATION REGARDING RECEIPT AND | |
ACCEPTANCE OF FOREIGN GUARDIANSHIP | ||
Sec. 1253.054. HEARING TO CONSIDER MODIFICATION | ||
Sec. | 1253.055. GUARDIANSHIP TRANSFER PROCEEDINGS FILED | |
IN TWO OR MORE COURTS | ||
Sec. 1253.056. CONSTRUCTION WITH OTHER LAW | ||
[Sections 1253.057-1253.100 reserved for expansion] | ||
SUBCHAPTER C. | GUARDIANSHIP PROCEEDINGS FILED IN THIS STATE AND IN FOREIGN JURISDICTION | |
FOREIGN JURISDICTION | ||
Sec. | 1253.101. DELAY OF CERTAIN GUARDIANSHIP | |
PROCEEDINGS | ||
Sec. | 1253.102. DETERMINATION OF VENUE; ACTION | |
FOLLOWING DETERMINATION | ||
Sec. 1253.103. NECESSARY ORDERS | ||
CHAPTER 1253. INTERSTATE GUARDIANSHIPS | ||
SUBCHAPTER A. TRANSFER OF GUARDIANSHIP TO FOREIGN JURISDICTION | ||
FOREIGN JURISDICTION | ||
to the court that has jurisdiction over the guardianship to | ||
transfer the guardianship to a court in a foreign jurisdiction to | ||
which the ward has permanently moved. (Tex. Prob. Code, Sec. | ||
891(a).) | ||
. Notice of an | ||
application to transfer a guardianship under this subchapter shall | ||
be: | ||
(1) served personally on the ward; and | ||
(2) given to the foreign court to which the | ||
guardianship is to be transferred. (Tex. Prob. Code, Sec. 891(b).) | ||
GUARDIANSHIP | ||
ward or any interested person, the court shall hold a hearing to | ||
consider an application to transfer a guardianship under this | ||
subchapter. | ||
(b) The court shall transfer a guardianship to a foreign | ||
court if the court determines the transfer is in the best interests | ||
of the ward. The transfer of the guardianship must be made | ||
contingent on the acceptance of the guardianship in the foreign | ||
jurisdiction. | ||
(c) The court shall coordinate efforts with the appropriate | ||
foreign court to facilitate the orderly transfer of the | ||
guardianship. (Tex. Prob. Code, Secs. 891(c), (d).) | ||
[Sections 1253.004-1253.050 reserved for expansion] | ||
SUBCHAPTER B. RECEIPT AND ACCEPTANCE OF FOREIGN GUARDIANSHIP | ||
FOREIGN GUARDIANSHIP | ||
represent an incapacitated person who is residing in this state or | ||
intends to move to this state may file an application with a court | ||
in which the ward resides or intends to reside to have the | ||
guardianship transferred to the court. (Tex. Prob. Code, Sec. | ||
892(a).) | ||
. Notice of an | ||
application for receipt and acceptance of a foreign guardianship | ||
under this subchapter shall be: | ||
(1) served personally on the ward; and | ||
(2) given to the foreign court from which the | ||
guardianship is to be transferred. (Tex. Prob. Code, Sec. 892(b).) | ||
ACCEPTANCE OF FOREIGN GUARDIANSHIP | ||
or on the motion of the ward or any interested person, the court | ||
shall hold a hearing to consider an application for receipt and | ||
acceptance of a foreign guardianship under this subchapter. | ||
(b) In reviewing the application, the court should | ||
determine: | ||
(1) that the proposed guardianship is not a collateral | ||
attack on an existing or proposed guardianship in another | ||
jurisdiction in this or another state; and | ||
(2) for a guardianship in which a court in one or more | ||
states may have jurisdiction, that the application has been filed | ||
in the court that is best suited to consider the matter. | ||
(c) The court shall grant the application if the transfer of | ||
the guardianship from the foreign jurisdiction is in the best | ||
interests of the ward. | ||
(d) In granting the application, the court shall give full | ||
faith and credit to the provisions of the foreign guardianship | ||
order concerning the determination of the ward's incapacity and the | ||
rights, powers, and duties of the guardian. | ||
(e) The court shall coordinate efforts with the appropriate | ||
foreign court to facilitate the orderly transfer of the | ||
guardianship. (Tex. Prob. Code, Secs. 892(d), (e), (f), (g).) | ||
. Not later | ||
than the 90th day after the date a court grants an application for | ||
receipt and acceptance of a foreign guardianship under this | ||
subchapter, the court shall hold a hearing to consider modifying | ||
the administrative procedures or requirements of the transferred | ||
guardianship in accordance with local and state law. (Tex. Prob. | ||
Code, Sec. 893.) | ||
TWO OR MORE COURTS | ||
a foreign guardianship under this subchapter is filed in two or more | ||
courts with jurisdiction, the proceeding shall be heard in the | ||
court with jurisdiction over the application filed on the earliest | ||
date, if venue is otherwise proper in that court. A court that does | ||
not have venue to hear the application shall transfer the | ||
proceeding to the proper court. (Tex. Prob. Code, Sec. 892(c).) | ||
. The denial of | ||
an application for receipt and acceptance of a guardianship under | ||
this subchapter does not affect the right of a guardian appointed by | ||
a foreign court to file an application to be appointed guardian of | ||
the incapacitated person under Section 1101.001. (Tex. Prob. Code, | ||
Sec. 892(h).) | ||
[Sections 1253.057-1253.100 reserved for expansion] | ||
SUBCHAPTER C. GUARDIANSHIP PROCEEDINGS FILED IN THIS STATE AND IN | ||
FOREIGN JURISDICTION | ||
. | ||
A court in which a guardianship proceeding is filed and in which | ||
venue of the proceeding is proper may delay further action in the | ||
proceeding in that court if: | ||
(1) another guardianship proceeding involving a | ||
matter at issue in the proceeding filed in the court is subsequently | ||
filed in a court in a foreign jurisdiction; and | ||
(2) venue of the proceeding in the foreign court is | ||
proper. (Tex. Prob. Code, Sec. 894(a).) | ||
DETERMINATION | ||
guardianship proceeding under Section 1253.101 shall determine | ||
whether venue of the proceeding is more suitable in that court or in | ||
the foreign court. | ||
(b) In making a determination under Subsection (a), the | ||
court may consider: | ||
(1) the interests of justice; | ||
(2) the best interests of the ward or proposed ward; | ||
and | ||
(3) the convenience of the parties. | ||
(c) The court shall resume the guardianship proceeding | ||
delayed under Section 1253.101 if the court determines under this | ||
section that venue is more suitable in that court. If the court | ||
determines that venue is more suitable in the foreign court, the | ||
court shall, with the consent of the foreign court, transfer the | ||
proceeding to that foreign court. (Tex. Prob. Code, Secs. 894(b), | ||
(d).) | ||
. A court that delays | ||
further action in a guardianship proceeding under Section 1253.101 | ||
may issue any order the court considers necessary to protect the | ||
proposed ward or the proposed ward's estate. (Tex. Prob. Code, Sec. | ||
894(c).) | ||
[Chapters 1254-1300 reserved for expansion] | ||
MANAGEMENT TRUSTS | ||
CHAPTER 1301. | MANAGEMENT TRUSTS | |
SUBCHAPTER A. | GENERAL PROVISIONS | |
Sec. 1301.001. DEFINITION | ||
Sec. 1301.002. APPLICABILITY OF TEXAS TRUST CODE | ||
[Sections 1301.003-1301.050 reserved for expansion] | ||
SUBCHAPTER B. CREATION OF MANAGEMENT TRUSTS | ||
Sec. | 1301.051. ELIGIBILITY TO APPLY FOR CREATION OF | |
TRUST | ||
Sec. | 1301.052. VENUE FOR PROCEEDING INVOLVING ALLEGED | |
INCAPACITATED PERSON | ||
Sec. 1301.053. CREATION OF TRUST FOR WARD | ||
Sec. | 1301.054. CREATION OF TRUST FOR INCAPACITATED | |
PERSON WITHOUT GUARDIAN | ||
Sec. | 1301.055. AUTHORITY OF COURT TO APPOINT GUARDIAN | |
INSTEAD OF CREATING TRUST | ||
Sec. 1301.056. CONTENTS OF ORDER CREATING TRUST | ||
Sec. 1301.057. APPOINTMENT OF TRUSTEE | ||
Sec. 1301.058. BOND REQUIREMENTS FOR TRUSTEES | ||
[Sections 1301.059-1301.100 reserved for expansion] | ||
SUBCHAPTER C. TERMS OF MANAGEMENT TRUST | ||
Sec. 1301.101. REQUIRED TERMS | ||
Sec. 1301.102. OPTIONAL TERMS | ||
Sec. 1301.103. ENFORCEABILITY OF CERTAIN TERMS | ||
[Sections 1301.104-1301.150 reserved for expansion] | ||
SUBCHAPTER D. | ADMINISTRATION OF MANAGEMENT TRUSTS | |
Sec. 1301.151. JURISDICTION OVER TRUST MATTERS | ||
Sec. | 1301.152. COURT'S AUTHORITY TO DISCHARGE GUARDIAN | |
OF ESTATE | ||
Sec. 1301.153. INVESTMENT IN TEXAS TOMORROW FUND | ||
Sec. 1301.154. ANNUAL ACCOUNTING | ||
Sec. 1301.155. APPOINTMENT OF SUCCESSOR TRUSTEE | ||
Sec. | 1301.156. LIABILITY OF CERTAIN PERSONS FOR | |
CONDUCT OF TRUSTEE | ||
[Sections 1301.157-1301.200 reserved for expansion] | ||
SUBCHAPTER E. MODIFICATION, REVOCATION, OR TERMINATION OF | MANAGEMENT TRUSTS | |
MANAGEMENT TRUSTS | ||
Sec. 1301.201. MODIFICATION OR REVOCATION OF TRUST | ||
Sec. 1301.202. TRANSFER TO POOLED TRUST SUBACCOUNT | ||
Sec. 1301.203. TERMINATION OF TRUST | ||
Sec. 1301.204. DISTRIBUTION OF TRUST PROPERTY | ||
CHAPTER 1301. MANAGEMENT TRUSTS | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
. In this chapter, "management | ||
trust" means a trust created under Section 1301.053 or 1301.054. | ||
(New.) | ||
. (a) A | ||
management trust is subject to Subtitle B, Title 9, Property Code. | ||
(b) To the extent of a conflict between Subtitle B, Title 9, | ||
Property Code, and a provision of this chapter or of a management | ||
trust, the provision of this chapter or of the trust controls. | ||
(Tex. Prob. Code, Sec. 869B.) | ||
[Sections 1301.003-1301.050 reserved for expansion] | ||
SUBCHAPTER B. CREATION OF MANAGEMENT TRUSTS | ||
. | ||
The following persons may apply for the creation of a trust under | ||
this subchapter: | ||
(1) the guardian of a ward; | ||
(2) an attorney ad litem or guardian ad litem | ||
appointed to represent a ward or the ward's interests; | ||
(3) a person interested in the welfare of an alleged | ||
incapacitated person who does not have a guardian of the estate; or | ||
(4) an attorney ad litem or guardian ad litem | ||
appointed to represent: | ||
(A) an alleged incapacitated person who does not | ||
have a guardian; or | ||
(B) the interests of a person described by | ||
Paragraph (A). (Tex. Prob. Code, Sec. 867(a-1).) | ||
INCAPACITATED PERSON | ||
trust under Section 1301.054 for an alleged incapacitated person | ||
must be filed in the same court in which a proceeding for the | ||
appointment of a guardian for the person is pending, if any. | ||
(b) If a proceeding for the appointment of a guardian for an | ||
alleged incapacitated person is not pending on the date an | ||
application is filed for the creation of a trust under Section | ||
1301.054 for the person, venue for a proceeding to create a trust | ||
must be determined in the same manner as venue for a proceeding for | ||
the appointment of a guardian is determined under Section 610. | ||
(Tex. Prob. Code, Secs. 867(b-2), 867A.) | ||
. (a) On | ||
application by an appropriate person as provided by Section | ||
1301.051, the court with jurisdiction over a guardianship may enter | ||
an order that creates for the ward's benefit a trust for the | ||
management of guardianship funds if the court finds that the | ||
creation of the trust is in the ward's best interests. | ||
(b) The court shall maintain a trust created under this | ||
section under the same cause number as the guardianship proceeding. | ||
(Tex. Prob. Code, Secs. 867(b), (f) (part).) | ||
WITHOUT GUARDIAN | ||
provided by Section 1301.051 and regardless of whether an | ||
application for guardianship has been filed on the alleged | ||
incapacitated person's behalf, a proper court exercising probate | ||
jurisdiction may enter an order that creates a trust for the | ||
management of the estate of an alleged incapacitated person who | ||
does not have a guardian if the court, after a hearing, finds that: | ||
(1) the person is an incapacitated person; and | ||
(2) the creation of the trust is in the incapacitated | ||
person's best interests. | ||
(b) The court shall conduct the hearing to determine | ||
incapacity under Subsection (a) using the same procedures and | ||
evidentiary standards as are required in a hearing for the | ||
appointment of a guardian for a proposed ward. | ||
(c) The court 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). | ||
(d) The court shall maintain a trust created under this | ||
section under the same cause number as the guardianship proceeding, | ||
if applicable. (Tex. Prob. Code, Secs. 867(b-1), (b-3), (f) | ||
(part).) | ||
INSTEAD OF CREATING TRUST | ||
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 | ||
person's best interests for the court to create a trust under this | ||
subchapter for the 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. | ||
(Tex. Prob. Code, Sec. 867(b-4).) | ||
. An order | ||
creating a management trust must: | ||
(1) direct a person holding property that belongs to | ||
the ward or incapacitated person, as applicable, for whom the trust | ||
is created or to which the ward or incapacitated person is entitled, | ||
to deliver all or part of that property to the corporate fiduciary | ||
or other person appointed as trustee of the trust; and | ||
(2) include terms and limitations placed on the trust. | ||
(Tex. Prob. Code, Sec. 867(f) (part).) | ||
. (a) In this | ||
section, "financial institution" means a financial institution, as | ||
defined by Section 201.101, Finance Code, that has trust powers and | ||
exists and does business under the laws of this state, another | ||
state, or the United States. | ||
(b) Except as provided by Subsection (c), the court shall | ||
appoint a financial institution to serve as trustee of a management | ||
trust. | ||
(c) The court may appoint a person or entity described by | ||
Subsection (d) to serve as trustee of a management trust 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 | ||
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. (Tex. Prob. Code, Secs. | ||
867(a), (b-5), (c), (d), (e).) | ||
. (a) A | ||
trustee of a management trust that is a corporate fiduciary serves | ||
without giving a bond in accordance with the trust terms required by | ||
Section 1301.101(a)(4). | ||
(b) The court shall require a person, other than a corporate | ||
fiduciary, serving 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. (Tex. Prob. Code, Secs. 868(a) (part), 868B.) | ||
[Sections 1301.059-1301.100 reserved for expansion] | ||
SUBCHAPTER C. TERMS OF MANAGEMENT TRUST | ||
. (a) Except as provided by | ||
Subsection (c), a management trust must provide that: | ||
(1) the ward or incapacitated person for whom the | ||
trust is created 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 ward or | ||
incapacitated person; | ||
(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), the trustee is entitled to receive reasonable compensation for | ||
services the trustee provides to the ward or incapacitated person | ||
as 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 of an estate under | ||
Subchapter A, Chapter 1155. | ||
(c) The court creating or modifying a management trust may | ||
omit or modify terms required by Subsection (a)(1) or (2) only if | ||
the court determines that the omission or modification: | ||
(1) is necessary and appropriate for the ward or | ||
incapacitated person to be eligible to receive public benefits or | ||
assistance under a state or federal program that is not otherwise | ||
available to the ward or incapacitated person; and | ||
(2) is in the ward's or incapacitated person's best | ||
interests. (Tex. Prob. Code, Secs. 868(a), (d).) | ||
. (a) A management trust may | ||
provide that the trustee make a distribution, payment, use, or | ||
application of trust funds for the health, education, maintenance, | ||
or support of the ward or incapacitated person for whom the trust is | ||
created or of another person whom the ward or incapacitated person | ||
is legally 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 ward | ||
or incapacitated person or of another person whom the ward or | ||
incapacitated person is legally obligated to support; or | ||
(C) a person providing a good or service to the | ||
ward or incapacitated person or to another person whom the ward or | ||
incapacitated person is legally obligated to support. | ||
(b) The court may include additional provisions in a | ||
management trust on the trust's creation or modification under this | ||
chapter if the court determines the addition does not conflict with | ||
Section 1301.101. (Tex. Prob. Code, Secs. 868(b), (e).) | ||
. A | ||
provision in a management trust 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. (Tex. Prob. Code, Sec. 868(c).) | ||
[Sections 1301.104-1301.150 reserved for expansion] | ||
SUBCHAPTER D. ADMINISTRATION OF MANAGEMENT TRUSTS | ||
. A court | ||
that creates a management trust has the same jurisdiction to hear | ||
matters relating to the trust as the court has with respect to | ||
guardianship and other matters covered by this title. (Tex. Prob. | ||
Code, Sec. 869C.) | ||
ESTATE | ||
the court may discharge the guardian of the ward's estate if the | ||
court determines that the discharge is in the ward's best | ||
interests. (Tex. Prob. Code, Sec. 868A.) | ||
. The | ||
trustee of a management trust may invest trust funds in the Texas | ||
tomorrow fund established by Subchapter F, Chapter 54, Education | ||
Code, if the trustee determines that investment is in the best | ||
interest of the ward or incapacitated person for whom the trust is | ||
created. (Tex. Prob. Code, Sec. 868(f).) | ||
. (a) The trustee of a | ||
management trust 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 under this title. | ||
(b) The trustee of a management trust created for a ward | ||
shall provide a copy of the annual account to the guardian of the | ||
ward's estate or person. | ||
(c) The annual account is subject to court review and | ||
approval in the same manner that is required of an annual account | ||
prepared by a guardian under this title. (Tex. Prob. Code, Sec. | ||
871.) | ||
. The court | ||
may appoint a successor trustee if the trustee of a management trust | ||
resigns, becomes ineligible, or is removed. (Tex. Prob. Code, Sec. | ||
869A.) | ||
TRUSTEE | ||
whom a management trust is created or the surety on the guardian's | ||
bond is not liable for an act or omission of the trustee of the | ||
trust. (Tex. Prob. Code, Sec. 872.) | ||
[Sections 1301.157-1301.200 reserved for expansion] | ||
SUBCHAPTER E. MODIFICATION, REVOCATION, OR TERMINATION OF | ||
MANAGEMENT TRUSTS | ||
. (a) | ||
The court may modify or revoke a management trust at any time before | ||
the date of the trust's termination. | ||
(b) The following may not revoke a management trust: | ||
(1) the ward for whom the trust is created or the | ||
guardian of the ward's estate; or | ||
(2) the incapacitated person for whom the trust is | ||
created. (Tex. Prob. Code, Sec. 869.) | ||
. (a) If | ||
the court determines that it is in the best interests of a ward or | ||
incapacitated person for whom a management trust is created, the | ||
court may order the transfer of all property in the management trust | ||
to a pooled trust subaccount established in accordance with Chapter | ||
1302. | ||
(b) The transfer of property from the management trust to | ||
the pooled trust subaccount shall be treated as a continuation of | ||
the management trust and may not be treated as the establishment of | ||
a new trust for purposes of 42 U.S.C. Section 1396p(d)(4)(A) or (C) | ||
or otherwise for purposes of the ward's or incapacitated person's | ||
eligibility for medical assistance under Chapter 32, Human | ||
Resources Code. | ||
(c) The court may not allow termination of the management | ||
trust from which property is transferred under this section until | ||
all of the property in the management trust has been transferred to | ||
the pooled trust subaccount. (Tex. Prob. Code, Sec. 868C.) | ||
. (a) If the ward or | ||
incapacitated person for whom a management trust is created is a | ||
minor, the trust terminates on: | ||
(1) the earlier of: | ||
(A) the ward's or incapacitated person's death; | ||
or | ||
(B) the ward's or incapacitated person's 18th | ||
birthday; or | ||
(2) the date provided by court order, which may not be | ||
later than the ward's or incapacitated person's 25th birthday. | ||
(b) If the ward or incapacitated person for whom a | ||
management trust is created is not a minor, the trust terminates on: | ||
(1) the date the court determines that continuing the | ||
trust is no longer in the ward's or incapacitated person's best | ||
interests, subject to Section 1301.202(c); or | ||
(2) the ward's or incapacitated person's death. (Tex. | ||
Prob. Code, Sec. 870.) | ||
. Unless | ||
otherwise provided by the court, the trustee of a management trust | ||
shall: | ||
(1) prepare a final account in the same form and manner | ||
that is required of a guardian under Sections 1204.101 and | ||
1204.102; and | ||
(2) on court approval, distribute the principal or any | ||
undistributed income of the trust to: | ||
(A) the ward or incapacitated person when the | ||
trust terminates on the trust's own terms; | ||
(B) the successor trustee on appointment of a | ||
successor trustee; or | ||
(C) the representative of the deceased ward's or | ||
incapacitated person's estate on the ward's or incapacitated person's death. (Tex. Prob. Code, Sec. 873.) | ||
CHAPTER 1302. POOLED TRUST SUBACCOUNTS | ||
Sec. 1302.001. DEFINITIONS | ||
Sec. 1302.002. APPLICATION TO ESTABLISH SUBACCOUNT | ||
Sec. 1302.003. APPOINTMENT OF ATTORNEY AD LITEM | ||
Sec. 1302.004. ESTABLISHMENT OF SUBACCOUNT | ||
Sec. 1302.005. TERMS OF SUBACCOUNT | ||
Sec. 1302.006. FEES AND REPORTING | ||
Sec. 1302.007. JURISDICTION EXCLUSIVE | ||
CHAPTER 1302. POOLED TRUST SUBACCOUNTS | ||
. In this chapter: | ||
(1) "Beneficiary" means a person for whom a subaccount | ||
is established. | ||
(2) "Medical assistance" means benefits and services | ||
under the medical assistance program administered under Chapter 32, | ||
Human Resources Code. | ||
(3) "Pooled trust" means a trust that meets the | ||
requirements of 42 U.S.C. Section 1396p(d)(4)(C) for purposes of | ||
exempting the trust from the applicability of 42 U.S.C. Section | ||
1396p(d) in determining the eligibility of a person who is disabled | ||
for medical assistance. | ||
(4) "Subaccount" means an account in a pooled trust | ||
established solely for the benefit of a beneficiary. (Tex. Prob. | ||
Code, Sec. 910.) | ||
. A | ||
person interested in the welfare of a minor, a disabled person, or | ||
any other incapacitated person may apply to the court for the | ||
establishment of a subaccount for the benefit of the minor, | ||
disabled person, or other incapacitated person as the beneficiary. | ||
(Tex. Prob. Code, Sec. 911.) | ||
. (a) The | ||
court shall appoint an attorney ad litem for a person who is a minor | ||
or has a mental disability and who is the subject of an application | ||
under Section 1302.002. | ||
(b) The attorney ad litem is entitled to a reasonable fee | ||
and reimbursement of expenses to be paid from the person's | ||
property. (Tex. Prob. Code, Sec. 912.) | ||
. If the court | ||
finds that it is in the best interests of a person who is the subject | ||
of an application under Section 1302.002, the court may order: | ||
(1) the establishment of a subaccount of which the | ||
person is the beneficiary; and | ||
(2) the transfer to the subaccount of any of the | ||
person's property on hand or accruing to the person. (Tex. Prob. | ||
Code, Sec. 913.) | ||
. Unless the court | ||
orders otherwise, the terms governing the subaccount must provide | ||
that: | ||
(1) the subaccount terminates on the earliest of the | ||
date of: | ||
(A) the beneficiary's 18th birthday, if the | ||
beneficiary is not disabled on that date and was a minor at the time | ||
the subaccount was established; | ||
(B) the beneficiary's death; or | ||
(C) a court order terminating the subaccount; | ||
and | ||
(2) on termination, any property remaining in the | ||
beneficiary's subaccount after making any required payments to | ||
satisfy the amounts of medical assistance reimbursement claims for | ||
medical assistance provided to the beneficiary under this state's | ||
medical assistance program and other states' medical assistance | ||
programs shall be distributed to: | ||
(A) the beneficiary, if on the date of | ||
termination the beneficiary is living and is not incapacitated; | ||
(B) the beneficiary's guardian, if on the date of | ||
termination the beneficiary is living and is incapacitated; or | ||
(C) the personal representative of the | ||
beneficiary's estate, if on the date of termination the beneficiary | ||
is deceased. (Tex. Prob. Code, Sec. 914.) | ||
. (a) The manager or | ||
trustee of a pooled trust may: | ||
(1) assess fees against a subaccount of that pooled | ||
trust that is established under this chapter, in accordance with | ||
the manager's or trustee's standard fee structure; and | ||
(2) pay fees assessed under Subdivision (1) from the | ||
subaccount. | ||
(b) If required by the court, the manager or trustee of the | ||
pooled trust shall file a copy of the annual report of account with | ||
the court clerk. (Tex. Prob. Code, Sec. 916.) | ||
. Notwithstanding | ||
any other law, the court that orders the establishment of a | ||
subaccount for a beneficiary has exclusive jurisdiction of a | ||
subsequent proceeding or action that relates to both the | ||
beneficiary and the subaccount, and the proceeding or action may be | ||
brought only in that court. (Tex. Prob. Code, Sec. 915.) | ||
[Chapters 1303-1350 reserved for expansion] | ||
SUBTITLE I. OTHER SPECIAL PROCEEDINGS AND ALTERNATIVES TO | GUARDIANSHIP | |
GUARDIANSHIP | ||
CHAPTER 1351. SALE OF PROPERTY OF CERTAIN INCAPACITATED PERSONS | ||
SUBCHAPTER A. SALE OF MINOR'S INTEREST IN PROPERTY WITHOUT | GUARDIANSHIP | |
GUARDIANSHIP | ||
Sec. | 1351.001. AUTHORITY TO SELL MINOR'S INTEREST IN | |
PROPERTY WITHOUT GUARDIANSHIP | ||
Sec. 1351.002. APPLICATION; VENUE | ||
Sec. 1351.003. HEARING; REQUIREMENTS FOR SALE | ||
Sec. | 1351.004. PAYMENT OF SALE PROCEEDS INTO COURT | |
REGISTRY | ||
Sec. | 1351.005. WITHDRAWAL OF SALE PROCEEDS FROM | |
REGISTRY NOT PROHIBITED | ||
Sec. 1351.006. DISAFFIRMATION OF SALE PROHIBITED | ||
[Sections 1351.007-1351.050 reserved for expansion] | ||
SUBCHAPTER B. SALE OF WARD'S PROPERTY WITHOUT GUARDIANSHIP OF THE | ESTATE | |
ESTATE | ||
Sec. 1351.051. APPLICABILITY OF SUBCHAPTER | ||
Sec. | 1351.052. AUTHORITY TO SELL WARD'S INTEREST IN | |
GUARDIAN OF THE ESTATE | ||
Sec. 1351.053. APPLICATION; VENUE | ||
Sec. 1351.054. HEARING | ||
Sec. | 1351.055. PAYMENT OF SALE PROCEEDS INTO COURT | |
REGISTRY | ||
Sec. | 1351.056. WITHDRAWAL OF SALE PROCEEDS FROM | |
REGISTRY NOT PROHIBITED | ||
Sec. 1351.057. DISAFFIRMATION OF SALE PROHIBITED | ||
CHAPTER 1351. SALE OF PROPERTY OF CERTAIN INCAPACITATED PERSONS | ||
SUBCHAPTER A. SALE OF MINOR'S INTEREST IN PROPERTY WITHOUT | ||
GUARDIANSHIP | ||
PROPERTY WITHOUT GUARDIANSHIP | ||
a minor who is not a ward may apply to the court under this | ||
subchapter for an order to sell an interest of the minor in property | ||
without being appointed guardian if the net value of the interest | ||
does not exceed $100,000. (Tex. Prob. Code, Sec. 889(a) (part).) | ||
. (a) A parent or | ||
managing conservator shall apply to the court under oath for the | ||
sale of property under this subchapter. | ||
(b) An application must contain: | ||
(1) the minor's name; | ||
(2) a legal description of the real property or a | ||
description that identifies the personal property, as applicable; | ||
(3) the minor's interest in the property; | ||
(4) the purchaser's name; | ||
(5) a statement that the sale of the minor's interest | ||
in the property is for cash; and | ||
(6) a statement that all money received by the parent | ||
or managing conservator shall be used for the minor's use and | ||
benefit. | ||
(c) Venue for the application is the same as venue for an | ||
application for the appointment of a guardian for a minor. (Tex. | ||
Prob. Code, Sec. 889(b).) | ||
. (a) On | ||
receipt of an application under this subchapter, the court shall | ||
set the application for hearing on a date not earlier than five days | ||
from the date the application was filed. | ||
(b) The court may cause citation to be issued if the court | ||
considers citation necessary. | ||
(c) At the time of the hearing, the court shall order the | ||
sale of the property if the court is satisfied from the evidence | ||
that the sale is in the minor's best interests. The court may | ||
require an independent appraisal of the property to be sold to | ||
establish the minimum sale price. (Tex. Prob. Code, Secs. 889(c), | ||
(d).) | ||
REGISTRY | ||
provided by this subchapter, the purchaser of the property shall | ||
pay the proceeds of the sale belonging to the minor into the court | ||
registry. (Tex. Prob. Code, Sec. 889(e).) | ||
NOT PROHIBITED | ||
deposited into the court registry under Section 1351.004 from being | ||
withdrawn from the court registry under Chapter 1355. (Tex. Prob. | ||
Code, Sec. 889(f).) | ||
. A minor | ||
may not disaffirm a sale of property made in accordance with a court | ||
order under this subchapter. (Tex. Prob. Code, Sec. 889(a) | ||
(part).) | ||
[Sections 1351.007-1351.050 reserved for expansion] | ||
SUBCHAPTER B. SALE OF WARD'S PROPERTY WITHOUT GUARDIANSHIP OF THE | ||
ESTATE | ||
. This | ||
subchapter applies only to a ward who has a guardian of the person | ||
but does not have a guardian of the estate. (Tex. Prob. Code, Sec. | ||
890(a).) | ||
PROPERTY WITHOUT APPOINTMENT AS GUARDIAN OF THE ESTATE | ||
of the person of a ward may apply to the court under this subchapter | ||
for an order to sell an interest in property in the ward's estate | ||
without being appointed guardian of the ward's estate if the net | ||
value of the interest does not exceed $100,000. (Tex. Prob. Code, | ||
Sec. 890(b) (part).) | ||
. (a) An application | ||
under this subchapter must: | ||
(1) be under oath; and | ||
(2) contain the information required by Section | ||
1351.002(b). | ||
(b) For purposes of Subsection (a)(2), references in | ||
Section 1351.002(b) to: | ||
(1) "minor" are replaced with references to "ward"; | ||
and | ||
(2) "parent or managing conservator" are replaced with | ||
references to "guardian of the person." | ||
(c) Venue for the application is the same as venue for an | ||
application for the appointment of a guardian for the ward. (Tex. | ||
Prob. Code, Secs. 890(b) (part), (c); New.) | ||
. (a) On receipt of an application | ||
under this subchapter, the court shall set the application for | ||
hearing on a date not earlier than five days from the date the | ||
application was filed. | ||
(b) The court may cause citation to be issued if the court | ||
considers citation necessary. | ||
(c) The procedures and evidentiary requirements for the | ||
hearing are the same as the procedures and evidentiary requirements | ||
for a hearing of an application filed under Subchapter A. (Tex. | ||
Prob. Code, Secs. 890(d), (e).) | ||
REGISTRY | ||
provided by this subchapter, the purchaser of the property shall | ||
pay the proceeds of the sale belonging to the ward into the court | ||
registry. (Tex. Prob. Code, Sec. 890(f).) | ||
NOT PROHIBITED | ||
deposited into the court registry under Section 1351.055 from being | ||
withdrawn from the court registry under Chapter 1355. (Tex. Prob. | ||
Code, Sec. 890(g).) | ||
. A ward | ||
may not disaffirm a sale of property made in accordance with a court | ||
order under this subchapter. (Tex. Prob. Code, Sec. 890(b) (part).) | ||
CHAPTER 1352. MORTGAGE OF MINOR'S INTEREST IN RESIDENCE HOMESTEAD | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Sec. 1352.001. DEFINITIONS | ||
[Sections 1352.002-1352.050 reserved for expansion] | ||
SUBCHAPTER B. MORTGAGE OF MINOR'S INTEREST WITHOUT GUARDIANSHIP | ||
Sec. 1352.051. APPLICABILITY OF SUBCHAPTER | ||
Sec. | 1352.052. AUTHORITY TO MORTGAGE MINOR'S INTEREST | |
WITHOUT GUARDIANSHIP | ||
Sec. 1352.053. APPLICATION; VENUE | ||
Sec. | 1352.054. HEARING; REQUIREMENTS TO MORTGAGE | |
MINOR'S INTEREST | ||
Sec. 1352.055. SURETY BOND; DISCHARGE OF SURETIES | ||
Sec. 1352.056. USE OF PROCEEDS | ||
Sec. 1352.057. ANNUAL REPORT | ||
Sec. 1352.058. SWORN REPORT OF EXPENDITURES | ||
Sec. | 1352.059. DISAFFIRMATION OF HOME EQUITY LOAN | |
PROHIBITED | ||
[Sections 1352.060-1352.100 reserved for expansion] | ||
SUBCHAPTER C. | MORTGAGE OF MINOR WARD'S INTEREST WITHOUT GUARDIANSHIP OF THE ESTATE | |
GUARDIANSHIP OF THE ESTATE | ||
Sec. 1352.101. APPLICABILITY OF SUBCHAPTER | ||
Sec. | 1352.102. AUTHORITY TO MORTGAGE MINOR WARD'S | |
ESTATE | ||
Sec. 1352.103. APPLICATION; VENUE | ||
Sec. | 1352.104. HEARING; REQUIREMENTS TO MORTGAGE MINOR | |
WARD'S INTEREST | ||
Sec. 1352.105. SURETY BOND; DISCHARGE OF SURETIES | ||
Sec. 1352.106. USE OF PROCEEDS | ||
Sec. 1352.107. ANNUAL ACCOUNTING | ||
Sec. | 1352.108. DISAFFIRMATION OF HOME EQUITY LOAN | |
PROHIBITED | ||
CHAPTER 1352. MORTGAGE OF MINOR'S INTEREST IN RESIDENCE HOMESTEAD | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
. In this chapter: | ||
(1) "Home equity loan" means a loan made under Section | ||
50(a)(6), Article XVI, Texas Constitution. | ||
(2) "Residence homestead" has the meaning assigned by | ||
Section 11.13, Tax Code. (Tex. Prob. Code, Secs. 889A(a), | ||
890A(a).) | ||
[Sections 1352.002-1352.050 reserved for expansion] | ||
SUBCHAPTER B. MORTGAGE OF MINOR'S INTEREST WITHOUT GUARDIANSHIP | ||
. This | ||
subchapter applies only to a minor who: | ||
(1) is not a ward; and | ||
(2) has an interest in a residence homestead. (Tex. | ||
Prob. Code, Sec. 889A(b) (part).) | ||
WITHOUT GUARDIANSHIP | ||
in a residence homestead does not exceed $100,000, a parent, | ||
subject to Subsection (b), or managing conservator of the minor may | ||
apply to the court under this subchapter for an order authorizing | ||
the parent or managing conservator to receive on the minor's | ||
behalf, without being appointed guardian, an extension of credit | ||
that is secured wholly or partly by a lien on the homestead. | ||
(b) A parent of a minor may file an application under this | ||
subchapter only if the parent has a homestead interest in the | ||
property that is the subject of the application. (Tex. Prob. Code, | ||
Secs. 889A(b) (part), (j).) | ||
. (a) A parent or | ||
managing conservator shall apply to the court under oath for the | ||
authority to encumber the residence homestead as provided by this | ||
subchapter. | ||
(b) The application must contain: | ||
(1) the minor's name and address; | ||
(2) a legal description of the property constituting | ||
the homestead; | ||
(3) a description of the minor's ownership interest in | ||
the property constituting the homestead; | ||
(4) the fair market value of the property constituting | ||
the homestead; | ||
(5) the amount of the home equity loan; | ||
(6) the purpose or purposes for which the home equity | ||
loan is being sought; | ||
(7) a detailed description of the proposed expenditure | ||
of the loan proceeds to be received by the parent or managing | ||
conservator on the minor's behalf; and | ||
(8) a statement that all loan proceeds received by the | ||
parent or managing conservator on the minor's behalf through a home | ||
equity loan authorized under this subchapter shall be used in a | ||
manner that is for the minor's benefit. | ||
(c) Venue for the application is the same as venue for an | ||
application for the appointment of a guardian for a minor. (Tex. | ||
Prob. Code, Sec. 889A(c).) | ||
INTEREST | ||
the court shall set the application for hearing on a date not | ||
earlier than the fifth day after the date the application is filed. | ||
(b) The court may cause citation to be issued if the court | ||
considers citation necessary. | ||
(c) At the time of the hearing, the court, on approval of the | ||
surety bond required by Section 1352.055, shall authorize the | ||
parent or managing conservator to receive the extension of credit | ||
sought in the application if the court is satisfied from a | ||
preponderance of the evidence that the encumbrance is: | ||
(1) for a purpose described by Section 1352.056(1) or | ||
(2); and | ||
(2) in the minor's best interests. (Tex. Prob. Code, | ||
Secs. 889A(d), (f).) | ||
. (a) | ||
Before a hearing under Section 1352.054 is held, the parent or | ||
managing conservator shall file with the county clerk a surety | ||
bond. The bond must be: | ||
(1) in an amount at least equal to two times the amount | ||
of the proposed home equity loan; | ||
(2) payable to and approved by the court; and | ||
(3) conditioned on the parent or managing conservator: | ||
(A) using the proceeds of the home equity loan | ||
attributable to the minor's interest solely for the purposes | ||
authorized by Section 1352.056; and | ||
(B) making payments on the minor's behalf toward | ||
the outstanding balance of the home equity loan. | ||
(b) After the first anniversary of the date a parent or | ||
managing conservator executes a home equity loan authorized under | ||
this subchapter, the court may, on motion of the borrower, reduce | ||
the amount of the surety bond required under this section to an | ||
amount that is not less than the loan's outstanding balance. | ||
(c) The court may not discharge the person's sureties from | ||
all further liability under a surety bond until the court: | ||
(1) approves the filing of the parent's or managing | ||
conservator's reports required under Sections 1352.057 and | ||
1352.058; | ||
(2) finds that the parent or managing conservator used | ||
loan proceeds resulting from the minor's interest solely for the | ||
purposes authorized by Section 1352.056; and | ||
(3) is presented with satisfactory evidence that the | ||
home equity loan has been repaid and is no longer considered an | ||
outstanding obligation. (Tex. Prob. Code, Secs. 889A(e), (h), | ||
(i).) | ||
. Proceeds of a home equity | ||
loan that is the subject of an application under Section 1352.053 | ||
that are attributable to the minor's interest may be spent only to: | ||
(1) make improvements to the homestead; | ||
(2) pay for the minor's education or medical expenses; | ||
or | ||
(3) pay the loan's outstanding balance. (Tex. Prob. | ||
Code, Sec. 889A(b) (part).) | ||
. A parent or managing | ||
conservator executing a home equity loan on a minor's behalf under | ||
this subchapter shall file an annual report with the court | ||
regarding the transaction. (Tex. Prob. Code, Sec. 889A(g) (part).) | ||
. When the | ||
parent or managing conservator has spent the proceeds of a home | ||
equity loan authorized under this subchapter, the parent or | ||
managing conservator shall file with the county clerk a sworn | ||
report accounting for the proceeds. (Tex. Prob. Code, Sec. 889A(g) | ||
(part).) | ||
PROHIBITED | ||
by the court under this subchapter. (Tex. Prob. Code, Sec. | ||
889A(k).) | ||
[Sections 1352.060-1352.100 reserved for expansion] | ||
SUBCHAPTER C. MORTGAGE OF MINOR WARD'S INTEREST WITHOUT | ||
GUARDIANSHIP OF THE ESTATE | ||
. This | ||
subchapter applies only to a minor ward who: | ||
(1) has a guardian of the person but does not have a | ||
guardian of the estate; and | ||
(2) has an interest in a residence homestead. (Tex. | ||
Prob. Code, Secs. 890A(b), (c) (part).) | ||
WITHOUT GUARDIANSHIP OF THE ESTATE | ||
ward's interest in a residence homestead does not exceed $100,000, | ||
the guardian of the person of the ward may apply to the court under | ||
this subchapter for an order authorizing the guardian to receive on | ||
the ward's behalf an extension of credit that is secured wholly or | ||
partly by a lien on the homestead. (Tex. Prob. Code, Sec. 890A(c) | ||
(part).) | ||
. (a) An application | ||
under this subchapter must contain the information required by | ||
Section 1352.053(b). | ||
(b) For purposes of Subsection (a), references in Section | ||
1352.053(b) to "parent or managing conservator" are replaced with | ||
references to "guardian of the person." | ||
(c) Venue for the application is the same as venue for an | ||
application for the appointment of a guardian for a ward. (Tex. | ||
Prob. Code, Sec. 890A(d); New.) | ||
WARD'S INTEREST | ||
subchapter, the court shall set the application for hearing on a | ||
date not earlier than the fifth day after the date the application | ||
is filed. | ||
(b) The court may cause citation to be issued if the court | ||
considers citation necessary. | ||
(c) The procedures and evidentiary requirements for a | ||
hearing of an application filed under this subchapter are the same | ||
as the procedures and evidentiary requirements for a hearing of an | ||
application filed under Subchapter B. | ||
(d) At the time of the hearing, the court, on approval of the | ||
surety bond required by Section 1352.105, shall authorize the | ||
guardian to receive the extension of credit sought in the | ||
application if the court is satisfied from a preponderance of the | ||
evidence that the encumbrance is: | ||
(1) for a purpose described by Section 1352.106(1) or | ||
(2); and | ||
(2) in the minor ward's best interests. (Tex. Prob. | ||
Code, Secs. 890A(e), (g), (h).) | ||
. (a) | ||
Before a hearing under Section 1352.104 is held, the guardian of the | ||
person shall file a surety bond with the county clerk to the same | ||
extent and in the same manner as a parent or managing conservator of | ||
a minor is required to file a surety bond under Section 1352.055. | ||
(b) The court may not discharge the guardian's sureties from | ||
all further liability under a bond required by this section or | ||
another provision of this title until the court: | ||
(1) finds that the guardian used loan proceeds | ||
resulting from the minor ward's interest solely for the purposes | ||
authorized by Section 1352.106; and | ||
(2) is presented with satisfactory evidence that the | ||
home equity loan has been repaid and is no longer considered an | ||
outstanding obligation. (Tex. Prob. Code, Secs. 890A(f), (j).) | ||
. Proceeds of a home equity | ||
loan that is the subject of an application under Section 1352.102 | ||
that are attributable to the minor ward's interest may be spent only | ||
to: | ||
(1) make improvements to the homestead; | ||
(2) pay for the ward's education or maintenance | ||
expenses; or | ||
(3) pay the loan's outstanding balance. (Tex. Prob. | ||
Code, Sec. 890A(c) (part).) | ||
. A guardian of the person | ||
executing a home equity loan on a minor ward's behalf must account | ||
for the transaction, including the expenditure of the loan | ||
proceeds, in the annual account required by Subchapter A, Chapter | ||
1163. (Tex. Prob. Code, Sec. 890A(i).) | ||
PROHIBITED | ||
authorized by the court under this subchapter. (Tex. Prob. Code, Sec. 890A(k).) | ||
PROPERTY | ||
CHAPTER 1353. MANAGEMENT AND CONTROL OF INCAPACITATED SPOUSE'S | PROPERTY | |
PROPERTY | ||
SUBCHAPTER A. APPOINTMENT OF COMMUNITY ADMINISTRATOR OR GUARDIAN | OF THE ESTATE | |
OF THE ESTATE | ||
Sec. 1353.001. EFFECT OF SUBCHAPTER | ||
Sec. 1353.002. SPOUSE AS COMMUNITY ADMINISTRATOR | ||
Sec. | 1353.003. APPOINTMENT OF GUARDIAN OF THE ESTATE | |
TO ADMINISTER SEPARATE PROPERTY | ||
Sec. | 1353.004. APPOINTMENT OF GUARDIAN OF THE ESTATE | |
UNDER CERTAIN CIRCUMSTANCES | ||
Sec. | 1353.005. ADMINISTRATION OF CERTAIN PROPERTY BY | |
NON-INCAPACITATED SPOUSE | ||
Sec. | 1353.006. EFFECT OF COURT ORDER ON CREDITORS' | |
CLAIMS | ||
[Sections 1353.007-1353.050 reserved for expansion] | ||
SUBCHAPTER B. DUTIES OF COMMUNITY ADMINISTRATORS AND GUARDIANS OF | THE ESTATE | |
THE ESTATE | ||
Sec. | 1353.051. INVENTORY AND APPRAISEMENT BY COMMUNITY | |
ADMINISTRATOR | ||
Sec. 1353.052. ACCOUNT BY COMMUNITY ADMINISTRATOR | ||
Sec. | 1353.053. DISCLOSURE OF CERTAIN LAWSUITS TO THE | |
COURT BY COMMUNITY ADMINISTRATOR | ||
Sec. | 1353.054. DELIVERY OF COMMUNITY PROPERTY BY | |
ADMINISTRATOR | ||
[Sections 1353.055-1353.100 reserved for expansion] | ||
SUBCHAPTER C. REMOVAL OR TERMINATION OF POWERS OF COMMUNITY | ADMINISTRATOR | |
ADMINISTRATOR | ||
Sec. | 1353.101. GROUNDS FOR REMOVAL OF COMMUNITY | |
ADMINISTRATOR | ||
Sec. | 1353.102. PROCEDURE FOR REMOVAL OF COMMUNITY | |
ADMINISTRATOR | ||
Sec. | 1353.103. TERMINATION OF COMMUNITY | |
CAPACITY | ||
[Sections 1353.104-1353.150 reserved for expansion] | ||
SUBCHAPTER D. APPOINTMENT OF ATTORNEY AD LITEM | ||
Sec. | 1353.151. APPOINTMENT OF ATTORNEY AD LITEM FOR | |
INCAPACITATED SPOUSE | ||
CHAPTER 1353. MANAGEMENT AND CONTROL OF INCAPACITATED SPOUSE'S | ||
PROPERTY | ||
SUBCHAPTER A. APPOINTMENT OF COMMUNITY ADMINISTRATOR OR GUARDIAN | ||
OF THE ESTATE | ||
. (a) The manner in | ||
which community property is administered under this subchapter does | ||
not affect: | ||
(1) the duties and obligations between spouses, | ||
including the duty to support the other spouse; and | ||
(2) the rights of any creditor of either spouse. | ||
(b) This subchapter does not partition community property | ||
between an incapacitated spouse and a spouse who is not | ||
incapacitated. (Tex. Prob. Code, Secs. 883(e), (f).) | ||
. (a) | ||
Except as provided by Section 1353.004, when a spouse is judicially | ||
declared to be incapacitated, the other spouse, in the capacity of | ||
surviving partner of the marital partnership, acquires full power | ||
to manage, control, and dispose of the entire community estate, | ||
including the part of the community estate that the incapacitated | ||
spouse legally has the power to manage in the absence of the | ||
incapacity, as community administrator without an administration. | ||
(b) The spouse who is not incapacitated is presumed to be | ||
suitable and qualified to serve as community administrator. (Tex. | ||
Prob. Code, Secs. 883(a) (part), (b) (part).) | ||
ADMINISTER SEPARATE PROPERTY | ||
1353.004, when a spouse who owns separate property is judicially | ||
declared to be incapacitated, the court shall appoint the other | ||
spouse or another person or entity, in the order of precedence | ||
established under Subchapter C, Chapter 1104, as guardian of the | ||
estate to administer only the separate property of the | ||
incapacitated spouse. | ||
(b) The qualification of a guardian of the estate of the | ||
separate property of an incapacitated spouse under Subsection (a) | ||
does not deprive the spouse who is not incapacitated of the right to | ||
manage, control, and dispose of the entire community estate as | ||
provided by this title. (Tex. Prob. Code, Secs. 883(a) (part), (b) | ||
(part).) | ||
CERTAIN CIRCUMSTANCES | ||
(1) a spouse who is not incapacitated is removed as | ||
community administrator; or | ||
(2) the court finds that the spouse who is not | ||
incapacitated: | ||
(A) would be disqualified to serve as guardian | ||
under Subchapter H, Chapter 1104; or | ||
(B) is not suitable to serve as the community | ||
administrator for any other reason. | ||
(b) The court shall appoint a guardian of the estate for the | ||
incapacitated spouse if the court: | ||
(1) has not appointed a guardian of the estate under | ||
Section 1353.003(a); or | ||
(2) has appointed the spouse who is not incapacitated | ||
as the guardian of the estate under Section 1353.003(a). | ||
(c) After considering the financial circumstances of the | ||
spouses and any other relevant factors, the court may order the | ||
spouse who is not incapacitated to deliver to the guardian of the | ||
estate of the incapacitated spouse not more than one-half of the | ||
community property that is subject to the spouses' joint | ||
management, control, and disposition under Section 3.102, Family | ||
Code. | ||
(d) The court shall authorize the guardian of the estate of | ||
the incapacitated spouse to administer: | ||
(1) any separate property of the incapacitated spouse; | ||
(2) any community property that is subject to the | ||
incapacitated spouse's sole management, control, and disposition | ||
under Section 3.102, Family Code; | ||
(3) any community property delivered to the guardian | ||
of the estate under Subsection (c); and | ||
(4) any income earned on property described by this | ||
section. | ||
(e) Community property administered by a guardian of the | ||
estate under Subsection (d) is considered the incapacitated | ||
spouse's community property, subject to the incapacitated spouse's | ||
sole management, control, and disposition under Section 3.102, | ||
Family Code. (Tex. Prob. Code, Secs. 883(c), (g) (part).) | ||
NON-INCAPACITATED SPOUSE | ||
administrator or on qualification of a guardian of the estate of the | ||
person's incapacitated spouse under Section 1353.004, as | ||
appropriate, a spouse who is not incapacitated shall continue to | ||
administer: | ||
(1) the person's own separate property; | ||
(2) any community property that is subject to the | ||
person's sole management, control, and disposition under Section | ||
3.102, Family Code; | ||
(3) either: | ||
(A) any community property subject to the | ||
spouses' joint management, control, and disposition under Section | ||
3.102, Family Code; or | ||
(B) if the person is required to deliver a | ||
portion of that community property described by Paragraph (A) to | ||
the guardian of the estate of the person's incapacitated spouse | ||
under Section 1353.004(c), only the portion of the community | ||
property remaining after delivery; and | ||
(4) any income earned on property described by this | ||
section the person is authorized to administer. | ||
(b) Community property administered under this section by a | ||
spouse who is not incapacitated is considered that spouse's | ||
community property, subject to that spouse's sole management, | ||
control, and disposition under Section 3.102, Family Code. (Tex. | ||
Prob. Code, Secs. 883(d), (g) (part).) | ||
. | ||
A court order that directs the administration of community property | ||
under Section 1353.004 or 1353.005 does not affect the | ||
enforceability of a creditor's claim existing on the date the court | ||
renders the order. (Tex. Prob. Code, Sec. 883(h).) | ||
[Sections 1353.007-1353.050 reserved for expansion] | ||
SUBCHAPTER B. DUTIES OF COMMUNITY ADMINISTRATORS AND GUARDIANS OF | ||
THE ESTATE | ||
ADMINISTRATOR | ||
interested person for good cause shown, the court may order a | ||
community administrator to file a verified, full, and detailed | ||
inventory and appraisement of: | ||
(1) any community property that is subject to the | ||
incapacitated spouse's sole management, control, and disposition | ||
under Section 3.102, Family Code; | ||
(2) any community property subject to the spouses' | ||
joint management, control, and disposition under Section 3.102, | ||
Family Code; and | ||
(3) any income earned on property described by this | ||
subsection. | ||
(b) An inventory and appraisement ordered under this | ||
section must be: | ||
(1) prepared in the same form and manner that is | ||
required of a guardian under Section 1154.051; and | ||
(2) filed not later than the 90th day after the date | ||
the order is issued. (Tex. Prob. Code, Secs. 883B(a), (c).) | ||
. (a) At | ||
any time after the expiration of 15 months after the date a | ||
community administrator's spouse is judicially declared to be | ||
incapacitated, the court, on its own motion or on the motion of an | ||
interested person for good cause shown, may order the community | ||
administrator to prepare and file an account of: | ||
(1) any community property that is subject to the | ||
incapacitated spouse's sole management, control, and disposition | ||
under Section 3.102, Family Code; | ||
(2) any community property subject to the spouses' | ||
joint management, control, and disposition under Section 3.102, | ||
Family Code; and | ||
(3) any income earned on property described by this | ||
subsection. | ||
(b) An account ordered under Subsection (a) must be: | ||
(1) prepared in the same form and manner that is | ||
required of a guardian under Subchapter A, Chapter 1163, except | ||
that the community administrator is not required to file the | ||
account annually with the county clerk; and | ||
(2) filed not later than the 60th day after the date | ||
the order is issued. | ||
(c) After an initial account has been filed by a community | ||
administrator under this section, the court, on the motion of an | ||
interested person for good cause shown, may order the community | ||
administrator to file subsequent periodic accounts at intervals of | ||
not less than 12 months. (Tex. Prob. Code, Secs. 883B(b), (d), | ||
(e).) | ||
BY COMMUNITY ADMINISTRATOR | ||
declared to be incapacitated and who acquires the power to manage, | ||
control, and dispose of the entire community estate under Section | ||
1353.002(a) shall inform the court in writing of any suit filed by | ||
or on behalf of the person that: | ||
(1) is a suit for dissolution of the marriage of the | ||
person and the person's incapacitated spouse; or | ||
(2) names the incapacitated spouse as a defendant. | ||
(Tex. Prob. Code, Sec. 884A.) | ||
OF THE ESTATE TO COMMUNITY ADMINISTRATOR | ||
of an incapacitated married person who, as guardian, is | ||
administering community property as part of the ward's estate, | ||
shall deliver on demand the community property to the spouse who is | ||
not incapacitated if the spouse becomes community administrator | ||
under Section 1353.002(a). (Tex. Prob. Code, Sec. 884.) | ||
[Sections 1353.055-1353.100 reserved for expansion] | ||
SUBCHAPTER C. REMOVAL OR TERMINATION OF POWERS OF COMMUNITY | ||
ADMINISTRATOR | ||
ADMINISTRATOR | ||
(1) the community administrator fails to comply with a | ||
court order for: | ||
(A) an inventory and appraisement under Section | ||
1353.051; or | ||
(B) an account or subsequent account under | ||
Section 1353.052; | ||
(2) sufficient grounds appear to support belief that | ||
the community administrator has misapplied or embezzled, or is | ||
about to misapply or embezzle, all or part of the property committed | ||
to the community administrator's care; | ||
(3) the community administrator is proved to have been | ||
guilty of gross misconduct or gross mismanagement in the | ||
performance of duties as community administrator; or | ||
(4) the community administrator: | ||
(A) becomes an incapacitated person; | ||
(B) is sentenced to the penitentiary; or | ||
(C) for any other reason becomes legally | ||
incapacitated from properly performing the community | ||
administrator's fiduciary duties. (Tex. Prob. Code, Sec. 883C(a) | ||
(part).) | ||
ADMINISTRATOR | ||
the court's own motion or on the motion of an interested person, | ||
after the community administrator has been cited by personal | ||
service to answer at a time and place specified in the notice. | ||
(b) The removal order must: | ||
(1) state the cause of removal; and | ||
(2) direct the disposition of the assets remaining in | ||
the name or under the control of the removed community | ||
administrator. | ||
(c) A community administrator who defends an action for the | ||
removal of the community administrator in good faith, regardless of | ||
whether successful, is entitled to recover from the incapacitated | ||
spouse's part of the community estate the community administrator's | ||
necessary expenses and disbursements in the removal proceedings, | ||
including reasonable attorney's fees. (Tex. Prob. Code, Secs. | ||
883C(a) (part), (b), (c).) | ||
POWERS ON RECOVERY OF CAPACITY | ||
control, and disposition vested in the community administrator by | ||
this title terminate when a court of competent jurisdiction by | ||
decree finds that the mental capacity of the incapacitated spouse | ||
has been recovered. (Tex. Prob. Code, Sec. 883A.) | ||
[Sections 1353.104-1353.150 reserved for expansion] | ||
SUBCHAPTER D. APPOINTMENT OF ATTORNEY AD LITEM | ||
INCAPACITATED SPOUSE | ||
litem to represent the interests of an incapacitated spouse in a | ||
proceeding to remove a community administrator or other proceeding | ||
brought under this chapter. | ||
(b) The attorney ad litem may demand from the community | ||
administrator an account or inventory and appraisement of the | ||
incapacitated spouse's part of the community estate being managed | ||
by the community administrator. | ||
(c) A community administrator shall comply with a demand | ||
made under this section not later than the 60th day after the date | ||
the community administrator receives the demand. | ||
(d) An account or inventory and appraisement returned under | ||
this section must be prepared in the form and manner required by the | ||
attorney ad litem. The attorney ad litem may require the community | ||
administrator to file the account or inventory and appraisement with the court. (Tex. Prob. Code, Sec. 883D.) | ||
CHAPTER 1354. RECEIVERSHIP FOR ESTATES OF | ||
CERTAIN INCAPACITATED PERSONS | ||
Sec. 1354.001. APPOINTMENT OF RECEIVER | ||
Sec. 1354.002. BOND | ||
Sec. 1354.003. POWERS AND DUTIES OF RECEIVER | ||
Sec. 1354.004. EXPENDITURES BY RECEIVER | ||
Sec. 1354.005. USE OF EXCESS ESTATE ASSETS | ||
Sec. | 1354.006. RECEIVER'S EXPENSES, ACCOUNT, AND | |
COMPENSATION | ||
Sec. 1354.007. CLOSING RECEIVERSHIP; NOTICE | ||
Sec. 1354.008. DISCHARGE OF RECEIVER | ||
Sec. 1354.009. RECORD | ||
CHAPTER 1354. RECEIVERSHIP FOR ESTATES OF | ||
CERTAIN INCAPACITATED PERSONS | ||
. (a) A judge of a | ||
probate court in the county in which an incapacitated person | ||
resides or in which the incapacitated person's endangered estate is | ||
located shall, with or without application, enter an order | ||
appointing a suitable person as receiver to take charge of the | ||
estate if: | ||
(1) it appears that all or part of the estate of the | ||
incapacitated person is in danger of injury, loss, or waste and in | ||
need of a guardianship or other representative; | ||
(2) there is no guardian of the estate who is qualified | ||
in this state; and | ||
(3) a guardian is not needed. | ||
(b) The court order must specify the duties and powers of | ||
the receiver the judge considers necessary for the protection, | ||
conservation, and preservation of the estate. | ||
(c) The clerk shall enter an order issued under this section | ||
in the judge's guardianship docket. (Tex. Prob. Code, Sec. 885(a) | ||
(part).) | ||
. (a) A court order issued under | ||
Section 1354.001 shall require a receiver appointed under that | ||
section to give a bond, as in ordinary receiverships, in an amount | ||
the judge considers necessary to protect the estate. | ||
(b) The person appointed as receiver shall: | ||
(1) make and submit a bond for the judge's approval; | ||
and | ||
(2) file the bond, when approved, with the clerk. | ||
(Tex. Prob. Code, Sec. 885(a) (part).) | ||
. The person | ||
appointed as receiver shall take charge of the endangered estate as | ||
provided by the powers and duties vested in the person by the order | ||
of appointment and subsequent orders of the judge. (Tex. Prob. | ||
Code, Sec. 885(a) (part).) | ||
. (a) If, while the | ||
receivership is pending, the needs of the incapacitated person | ||
require the use of the income or corpus of the estate for the | ||
education, clothing, or subsistence of the person, the judge shall, | ||
with or without application, enter an order in the judge's | ||
guardianship docket that appropriates an amount of income or corpus | ||
sufficient for that purpose. | ||
(b) The receiver shall use the amount appropriated by the | ||
court to pay a claim for the education, clothing, or subsistence of | ||
the incapacitated person that is presented to the judge for | ||
approval and ordered by the judge to be paid. (Tex. Prob. Code, | ||
Sec. 885(b).) | ||
. (a) A receiver | ||
who, while the receivership is pending, has possession of an amount | ||
of money belonging to the incapacitated person in excess of the | ||
amount needed for current necessities and expenses may, under | ||
direction of the judge, invest, lend, or contribute all or part of | ||
the excess money in the manner, for the security, and on the terms | ||
provided by this title for investments, loans, or contributions by | ||
guardians. | ||
(b) The receiver shall report to the judge all transactions | ||
made under this section in the same manner that a report is required | ||
of a guardian under this title. (Tex. Prob. Code, Sec. 885(c).) | ||
COMPENSATION | ||
administering the estate may be reported monthly to the judge in the | ||
form of a sworn statement of account that includes a report of: | ||
(1) the receiver's acts; | ||
(2) the condition of the estate; | ||
(3) the status of the threatened danger to the estate; | ||
and | ||
(4) the progress made toward abatement of the danger. | ||
(b) If the judge is satisfied that the statement is correct | ||
and reasonable in all respects, the judge shall promptly enter an | ||
order approving the expenses and authorizing reimbursement of the | ||
receiver from the estate funds in the receiver's possession. | ||
(c) A receiver shall be compensated for services provided in | ||
the receiver's official capacity in the same manner and amount | ||
provided by this title for similar services provided by a guardian | ||
of an estate. (Tex. Prob. Code, Sec. 885(d).) | ||
. (a) When the | ||
threatened danger has abated and the estate is no longer liable to | ||
injury, loss, or waste because there is no guardian or other | ||
representative of the estate, the receiver shall: | ||
(1) report to the judge; and | ||
(2) file with the clerk a full and final sworn account | ||
of: | ||
(A) all property of the estate received by the | ||
receiver; | ||
(B) all property of the estate in the receiver's | ||
possession while the receivership was pending; | ||
(C) all sums paid out; | ||
(D) all acts performed by the receiver with | ||
respect to the estate; and | ||
(E) all property of the estate remaining in the | ||
receiver's possession on the date of the report. | ||
(b) On the filing of the report, the clerk shall: | ||
(1) issue and cause to be posted a notice to all | ||
persons interested in the welfare of the incapacitated person; and | ||
(2) give personal notice to the person who has custody | ||
of the incapacitated person to appear before the judge at a time and | ||
place specified in the notice and contest the report and account if | ||
the person desires. (Tex. Prob. Code, Sec. 885(e).) | ||
. (a) If, on hearing | ||
the receiver's report and account, the judge is satisfied that the | ||
danger of injury, loss, or waste to the estate has abated and that | ||
the report and account are correct, the judge shall: | ||
(1) enter an order finding that the danger of injury, | ||
loss, or waste to the estate has abated; and | ||
(2) direct the receiver to deliver the estate to: | ||
(A) the person from whom the receiver took | ||
possession as receiver; | ||
(B) the person who has custody of the | ||
incapacitated person; or | ||
(C) another person the judge finds is entitled to | ||
possession of the estate. | ||
(b) A person who receives the estate under Subsection (a) | ||
shall execute and file with the clerk an appropriate receipt for the | ||
estate that is delivered to the person. | ||
(c) The judge's order shall discharge the receivership and | ||
the sureties on the receiver's bond. | ||
(d) If the judge is not satisfied that the danger has | ||
abated, or is not satisfied with the receiver's report and account, | ||
the judge shall enter an order continuing the receivership in | ||
effect until the judge is satisfied that the danger has abated or is | ||
satisfied with the report and account. (Tex. Prob. Code, Sec. | ||
885(f).) | ||
. An order, bond, report, account, or | ||
notice in a receivership proceeding must be recorded in the judge's guardianship docket. (Tex. Prob. Code, Sec. 885(g).) | ||
CHAPTER 1355. PAYMENT OF CERTAIN CLAIMS WITHOUT GUARDIANSHIP | ||
SUBCHAPTER A. | PAYMENT OF CLAIMS TO CERTAIN INCAPACITATED | |
PERSONS AND FORMER WARDS | ||
Sec. 1355.001. PAYMENT OF CLAIMS TO RESIDENT CREDITOR | ||
Sec. | 1355.002. PAYMENT OF CLAIMS TO NONRESIDENT | |
CREDITOR | ||
[Sections 1355.003-1355.050 reserved for expansion] | ||
SUBCHAPTER B. ADMINISTRATION OF MONEY | ||
Sec. 1355.051. INVESTMENT OF MONEY BY CLERK | ||
Sec. 1355.052. ANNUAL REPORT | ||
[Sections 1355.053-1355.100 reserved for expansion] | ||
SUBCHAPTER C. WITHDRAWAL OF MONEY | ||
Sec. 1355.101. APPLICABILITY OF SUBCHAPTER | ||
Sec. 1355.102. CUSTODIAN OF RESIDENT CREDITOR | ||
Sec. 1355.103. WITHDRAWAL OF MONEY BY CUSTODIAN; BOND | ||
Sec. 1355.104. CUSTODIAN'S REPORT | ||
Sec. | 1355.105. WITHDRAWAL OF MONEY BY CREDITOR OR | |
CREDITOR'S HEIR OR REPRESENTATIVE | ||
[Sections 1355.106-1355.150 reserved for expansion] | ||
SUBCHAPTER D. USE OF MONEY BY ELEEMOSYNARY INSTITUTION | ||
FOR BENEFIT OF RESIDENT | ||
Sec. 1355.151. APPLICABILITY OF SUBCHAPTER | ||
Sec. 1355.152. PAYMENT OF MONEY TO INSTITUTION | ||
Sec. 1355.153. DEPOSIT OF MONEY IN TRUST | ||
Sec. 1355.154. DEATH OF RESIDENT OR DEPLETION OF MONEY | ||
CHAPTER 1355. PAYMENT OF CERTAIN CLAIMS WITHOUT GUARDIANSHIP | ||
SUBCHAPTER A. PAYMENT OF CLAIMS TO CERTAIN INCAPACITATED | ||
PERSONS AND FORMER WARDS | ||
. (a) | ||
In this section, "resident creditor" means a person who: | ||
(1) is a resident of this state; and | ||
(2) is entitled to money in an amount that is $100,000 | ||
or less, the right to which is liquidated and is uncontested in any | ||
pending lawsuit. | ||
(b) This section applies only to a resident creditor who: | ||
(1) is an incapacitated person or the former ward of a | ||
guardianship terminated under Chapter 1204; and | ||
(2) does not have a legal guardian of the creditor's | ||
estate. | ||
(c) A debtor who owes money to a resident creditor to whom | ||
this section applies may pay the money to the county clerk of the | ||
county in which the creditor resides to the account of the creditor. | ||
When making a payment under this subsection, a debtor shall give to | ||
the clerk: | ||
(1) the creditor's name; | ||
(2) the creditor's social security identification | ||
number; | ||
(3) the nature of the creditor's disability; | ||
(4) the creditor's post office address; and | ||
(5) if the creditor is a minor, the creditor's age. | ||
(d) The receipt for the money signed by the county clerk is | ||
binding on the resident creditor as of the date of receipt and to | ||
the extent of the payment. | ||
(e) The county clerk shall: | ||
(1) by letter mailed to the address given under | ||
Subsection (c)(4), apprise the resident creditor that the deposit | ||
was made; and | ||
(2) on receipt of the payment, bring the payment to the | ||
court's attention. (Tex. Prob. Code, Sec. 887(a) (part).) | ||
. | ||
(a) In this section, "creditor" means a person who is entitled to | ||
money in an amount that is not more than $100,000 owing as a result | ||
of transactions in this state, the right to which is liquidated and | ||
is uncontested in any pending lawsuit in this state. | ||
(b) This section applies only to a creditor who is a | ||
nonresident minor, a nonresident person who is adjudged by a court | ||
of competent jurisdiction to be incapacitated, or the 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 creditor to | ||
whom this section applies may pay the money: | ||
(1) to the creditor's guardian 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 creditor's | ||
account and for the creditor's use and benefit. | ||
(e) A receipt for payment signed by the county clerk is | ||
binding on the 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) 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 creditor to whom this section applies. | ||
(Tex. Prob. Code, Sec. 887(e).) | ||
[Sections 1355.003-1355.050 reserved for expansion] | ||
SUBCHAPTER B. ADMINISTRATION OF MONEY | ||
. (a) On | ||
receipt of a payment under Section 1355.001, the county clerk shall | ||
invest the money as authorized under this title under court order in | ||
the name and for the account of the minor or other person entitled | ||
to the money. | ||
(b) The county clerk shall credit any increase, dividend, or | ||
income from an investment made under this chapter to the account of | ||
the minor or other person entitled to the investment. (Tex. Prob. | ||
Code, Sec. 887(a) (part).) | ||
. Not later than March 1 of | ||
each year, the court clerk shall make a written report to the court | ||
of the status of an investment made by the county clerk under | ||
Section 1355.051. The report must contain: | ||
(1) the amount of the original investment or the value | ||
of the investment at the last annual report, whichever is later; | ||
(2) any increase, dividend, or income from the | ||
investment since the last annual report; | ||
(3) the total amount of the investment and all | ||
increases, dividends, or income at the date of the report; and | ||
(4) the name of the depository or the type of | ||
investment. (Tex. Prob. Code, Sec. 887(b).) | ||
[Sections 1355.053-1355.100 reserved for expansion] | ||
SUBCHAPTER C. WITHDRAWAL OF MONEY | ||
. Except as | ||
provided by Section 1355.105, this subchapter applies only to a | ||
resident creditor to whom Section 1355.001 applies. (New.) | ||
. (a) The | ||
following may serve as custodian of a resident creditor under this | ||
section: | ||
(1) a parent of the creditor; | ||
(2) the unestranged spouse of the creditor; or | ||
(3) if there is no spouse and both of the creditor's | ||
parents are dead or nonresidents of this state, the person who: | ||
(A) resides in this state; and | ||
(B) has actual custody of the creditor. | ||
(b) An unestranged spouse residing in this state shall be | ||
given priority over a creditor's parent to serve as custodian under | ||
this subchapter. (Tex. Prob. Code, Sec. 887(c) (part).) | ||
. (a) | ||
A resident creditor's custodian may withdraw the money from the | ||
court clerk for the creditor's use and benefit if the custodian | ||
files with the clerk: | ||
(1) a written application; and | ||
(2) a bond approved by the county judge. | ||
(b) A custodian's bond must be: | ||
(1) twice the amount of the money to be withdrawn by | ||
the custodian; | ||
(2) payable to the judge or the judge's successors in | ||
office; and | ||
(3) conditioned that the custodian will: | ||
(A) use the money for the resident creditor's | ||
benefit under the court's direction; and | ||
(B) when legally required, faithfully account to | ||
the resident creditor and the creditor's heirs or legal | ||
representatives for the money and any increase to the money on: | ||
(i) the removal of the creditor's | ||
disability; | ||
(ii) the creditor's death; or | ||
(iii) the appointment of a guardian for the | ||
creditor. | ||
(c) A custodian may not receive a fee or commission for | ||
taking care of, handling, or spending money withdrawn by the | ||
custodian. (Tex. Prob. Code, Sec. 887(c) (part).) | ||
. (a) The custodian | ||
shall file with the county clerk a sworn report of the custodian's | ||
accounting when the custodian has: | ||
(1) spent the money in accordance with the court's | ||
directions; or | ||
(2) otherwise complied with the terms of the | ||
custodian's bond by accounting for the money and any increase in the | ||
money. | ||
(b) The filing of a custodian's report, when approved by the | ||
court, operates as a discharge of the person as custodian and of the | ||
person's sureties from all further liability under the bond. | ||
(c) The court shall satisfy itself that the custodian's | ||
report is true and correct and may require proof as in other cases. | ||
(Tex. Prob. Code, Sec. 887(d).) | ||
CREDITOR'S HEIR OR REPRESENTATIVE | ||
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; or | ||
(3) the creditor's heirs. | ||
(b) A withdrawal under Subsection (a) may be made at any | ||
time and without a special bond for that purpose. | ||
(c) The order presented under Subsection (a) must direct the | ||
court clerk to deliver the money to the creditor, the creditor's | ||
personal representative, or the creditor's heirs named in the | ||
order. | ||
(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. (Tex. Prob. Code, Sec. 887(f).) | ||
[Sections 1355.106-1355.150 reserved for expansion] | ||
SUBCHAPTER D. USE OF MONEY BY ELEEMOSYNARY INSTITUTION | ||
FOR BENEFIT OF RESIDENT | ||
. This | ||
subchapter applies only to money of a resident of an eleemosynary | ||
institution of this state that is on deposit in a court registry and | ||
does not exceed $10,000. (Tex. Prob. Code, Sec. 887(g) (part).) | ||
. (a) The | ||
judge of a county court, district court, or other court of this | ||
state may by order direct the court clerk to pay money to an | ||
eleemosynary institution of this state for the use and benefit of a | ||
resident of the institution if the court receives satisfactory | ||
proof by affidavit or otherwise that the resident: | ||
(1) is a person who has a mental disability, an | ||
incapacitated person, or a person whose mental illness or mental | ||
incapacity renders the person incapable of caring for himself or | ||
herself and of managing the person's property and financial | ||
affairs; and | ||
(2) has no known legal guardian appointed for the | ||
resident's estate. | ||
(b) The affidavit under Subsection (a) may be executed by | ||
the superintendent, business manager, or field representative of | ||
the institution of which the person is a resident. | ||
(c) The institution to which the payment is made under | ||
Subsection (a) may not be required to give bond or security for | ||
receiving the money from the court registry. | ||
(d) The receipt from the institution for a payment, or the | ||
canceled check or warrant by which the payment was made: | ||
(1) is sufficient evidence of the disposition of the | ||
payment; and | ||
(2) relieves the court clerk from further | ||
responsibility for the disposition. (Tex. Prob. Code, Sec. 887(g) | ||
(part).) | ||
. (a) On receipt of | ||
money under this subchapter, an eleemosynary institution shall | ||
deposit all of the money received to the resident's trust account. | ||
(b) Money deposited in a trust account may be used only: | ||
(1) by or for the personal use of the owner of the | ||
trust account, under the rules or custom of the institution in the | ||
expenditure of money by a resident; or | ||
(2) by the responsible officer of the institution, for | ||
the resident's use and benefit. (Tex. Prob. Code, Sec. 887(g) | ||
(part).) | ||
. (a) | ||
After the expenditure of all money in a resident's trust account, or | ||
after the resident's death, the responsible officer of the | ||
eleemosynary institution shall furnish a statement of expenditures | ||
of the money to the resident's nearest relative who is entitled to | ||
receive the statement. | ||
(b) A copy of the statement described by Subsection (a) | ||
shall be filed with the court that first granted the order to | ||
dispose of the money in accordance with this title. | ||
(c) The balance of a trust account of a resident of an | ||
eleemosynary institution who dies may be applied to: | ||
(1) the resident's burial expenses; or | ||
(2) the care, support, and treatment account of the | ||
resident at the institution. (Tex. Prob. Code, Sec. 887(g) (part).) | ||
CHAPTER 1356. COURT APPROVAL OF CERTAIN ARTS AND | ||
ENTERTAINMENT, ADVERTISEMENT, AND SPORTS CONTRACTS | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Sec. 1356.001. DEFINITIONS | ||
Sec. 1356.002. DURATION OF CONTRACT OF A MINOR | ||
[Sections 1356.003-1356.050 reserved for expansion] | ||
SUBCHAPTER B. COURT ACTION REGARDING CERTAIN CONTRACTS | ||
Sec. | 1356.051. APPROVAL OF CERTAIN CONTRACTS OF A | |
MINOR | ||
Sec. 1356.052. NOTICE REQUIRED | ||
Sec. 1356.053. NECESSARY PARTIES TO PROCEEDING | ||
Sec. | 1356.054. SET-ASIDE AND PRESERVATION OF PORTION | |
OF NET EARNINGS | ||
Sec. 1356.055. VALID CONTRACT NOT VOIDABLE | ||
Sec. 1356.056. GUARDIAN AD LITEM | ||
CHAPTER 1356. COURT APPROVAL OF CERTAIN ARTS AND | ||
ENTERTAINMENT, ADVERTISEMENT, AND SPORTS CONTRACTS | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
. In this chapter: | ||
(1) "Advertise" means to solicit or induce the | ||
purchase of consumer goods or services through electronic or print | ||
media, including: | ||
(A) radio; | ||
(B) television; | ||
(C) computer; or | ||
(D) direct mail. | ||
(2) "Advertisement contract" means a contract under | ||
which a person is employed or agrees to advertise consumer goods or | ||
services. | ||
(3) "Artist" means: | ||
(A) an actor who performs in a motion picture, | ||
theatrical, radio, television, or other entertainment production; | ||
(B) a musician or musical director; | ||
(C) a director or producer of a motion picture, | ||
theatrical, radio, television, or other entertainment production; | ||
(D) a writer; | ||
(E) a cinematographer; | ||
(F) a composer, lyricist, or arranger of musical | ||
compositions; | ||
(G) a dancer or choreographer of musical | ||
productions; | ||
(H) a model; or | ||
(I) any other individual who provides similar | ||
professional services in a motion picture, theatrical, radio, | ||
television, or other entertainment production. | ||
(4) "Arts and entertainment contract" means a contract | ||
under which: | ||
(A) an artist is employed or agrees to provide | ||
services in a motion picture, theatrical, radio, television, or | ||
other entertainment production; or | ||
(B) a person agrees to purchase, secure, sell, | ||
lease, license, or otherwise dispose of literary, musical, or | ||
dramatic tangible or intangible property or any rights in that | ||
property for use in the field of entertainment, including: | ||
(i) a motion picture; | ||
(ii) television; | ||
(iii) the production of phonograph records; | ||
or | ||
(iv) theater. | ||
(5) "Consumer goods" means goods used or bought for | ||
use primarily for personal, family, or household purposes. | ||
(6) "Net earnings," with respect to a minor, means the | ||
total amount to be received for the services of the minor under a | ||
contract less: | ||
(A) the amount required by law to be paid as taxes | ||
to any government or governmental agency; | ||
(B) a reasonable amount to be spent for the | ||
support, care, maintenance, education, and training of the minor; | ||
(C) fees and expenses paid in connection with | ||
procuring the contract or maintaining employment of the minor; and | ||
(D) attorney's fees for services provided in | ||
connection with the contract or any other business of the minor. | ||
(7) "Sports contract" means a contract under which an | ||
athlete is employed or agrees to participate, compete, or engage in | ||
a sports or athletic activity at a professional or amateur sports | ||
event or athletic event. (Tex. Prob. Code, Secs. 901, 904(a).) | ||
. This | ||
chapter may not be construed to authorize a contract that binds a | ||
minor after the seventh anniversary of the date of the contract. | ||
(Tex. Prob. Code, Sec. 902.) | ||
[Sections 1356.003-1356.050 reserved for expansion] | ||
SUBCHAPTER B. COURT ACTION REGARDING CERTAIN CONTRACTS | ||
. | ||
(a) On the petition of the guardian of the estate of a minor, a | ||
court may issue an order approving for purposes of this chapter an | ||
arts and entertainment contract, advertisement contract, or sports | ||
contract that is entered into by the minor. | ||
(b) Approval of a contract under this section extends to the | ||
contract as a whole and each term and provision of the contract, | ||
including any optional or conditional contract provision relating | ||
to the extension or termination of the contract's term. | ||
(c) A court may withhold approval of a contract in which | ||
part of the minor's net earnings will be set aside as provided by | ||
Section 1356.054 until the guardian of the minor's estate executes | ||
and files with the court written consent to the issuance of the | ||
order. (Tex. Prob. Code, Secs. 903(a) (part), (b), (c).) | ||
. Before the court may | ||
approve a contract under Section 1356.051, the guardian of the | ||
minor's estate must provide the other party to the contract notice | ||
of the petition and an opportunity to request a hearing in the | ||
manner provided by the court. (Tex. Prob. Code, Sec. 903(a) | ||
(part).) | ||
. Each | ||
parent of a minor for whom a proceeding is brought under Section | ||
1356.051 is a necessary party to the proceeding. (Tex. Prob. Code, | ||
Sec. 903(e).) | ||
EARNINGS | ||
under Section 1356.051, the court may require that a portion of the | ||
net earnings of the minor under the contract be set aside and | ||
preserved for the benefit of the minor in a trust created under | ||
Section 1301.053 or 1301.054 or a similar trust created under the | ||
laws of another state. | ||
(b) The amount to be set aside under this section must be | ||
reasonable as determined by the court. (Tex. Prob. Code, Sec. | ||
904(b).) | ||
. A contract | ||
approved under Section 1356.051 that is otherwise valid is not | ||
voidable solely on the ground that it was entered into by a person | ||
during the age of minority. (Tex. Prob. Code, Sec. 903(d).) | ||
. The court may appoint a | ||
guardian ad litem for a minor who has entered into an arts and | ||
entertainment contract, advertisement contract, or sports contract | ||
if the court finds that the appointment would be in the best | ||
interest of the minor. (Tex. Prob. Code, Sec. 905.) | ||
[Subtitles J-X reserved for expansion] | ||
SUBTITLE Y. TEXAS PROBATE CODE: SCOPE, JURISDICTION, AND VENUE | ||
PART 1. GENERAL PROVISIONS | ||
SUBPART A. PROCEEDINGS IN REM | ||
[Reserved for expansion] | ||
PART 2. GUARDIANSHIP PROCEEDINGS AND MATTERS | ||
SUBPART A. JURISDICTION | ||
[Reserved for expansion] | ||
SUBPART B. VENUE | ||
[Reserved for expansion] | ||
SUBPART C. DUTIES AND RECORDS OF CLERK | ||
[Reserved for expansion] | ||
SUBTITLE Z. TEXAS PROBATE CODE; ADDITIONAL GUARDIANSHIP PROVISIONS | ||
PART 2. GUARDIANSHIP PROCEEDINGS AND MATTERS | ||
SUBPART H. COMPENSATION, EXPENSES, AND COURT COSTS | ||
[Reserved for expansion] | ||
ARTICLE 2. CONFORMING AMENDMENTS | ||
SECTION 2.01. CONFORMING AMENDMENT. Section 21.001, | ||
Estates Code, as effective January 1, 2014, is amended to read as | ||
follows: | ||
Sec. 21.001. PURPOSE OF CODE. (a) This code is [ |
||
|
||
state's continuing statutory revision program, begun by the Texas | ||
Legislative Council in 1963 as directed by the legislature in the | ||
law codified as Section 323.007, Government Code. The program | ||
contemplates a topic-by-topic revision of the state's general and | ||
permanent statute law without substantive change. | ||
(b) Consistent with the objectives of the statutory | ||
revision program, the purpose of this code, except Subtitles X and | ||
Y, Title 2, and Subtitles Y and Z, Title 3 [ |
||
|
||
except Subtitles X and Y, Title 2, and Subtitles Y and Z, Title 3 | ||
[ |
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understandable by: | ||
(1) rearranging the statutes into a more logical | ||
order; | ||
(2) employing a format and numbering system designed | ||
to facilitate citation of the law and to accommodate future | ||
expansion of the law; | ||
(3) eliminating repealed, duplicative, | ||
unconstitutional, expired, executed, and other ineffective | ||
provisions; and | ||
(4) restating the law in modern American English to | ||
the greatest extent possible. | ||
(c) The provisions of Subtitles X and [ |
||
2, and Subtitles Y and Z, Title 3, [ |
||
Texas Probate Code and redesignated as part of this code, but are | ||
not revised as part of the state's continuing statutory revision | ||
program. | ||
SECTION 2.02. CONFORMING AMENDMENT. Section 21.002, | ||
Estates Code, as effective January 1, 2014, is amended to read as | ||
follows: | ||
Sec. 21.002. CONSTRUCTION. (a) Except as provided by this | ||
section, Section 22.027, or Section 1002.023, Chapter 311, | ||
Government Code (Code Construction Act), applies to the | ||
construction of a provision of this code [ |
||
|
||
(b) Chapter 311, Government Code (Code Construction Act), | ||
[ |
||
Subtitle X or [ |
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[ |
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SECTION 2.03. CONFORMING AMENDMENT. Section 21.003(b), | ||
Estates Code, as effective January 1, 2014, is amended to read as | ||
follows: | ||
(b) A reference in Subtitle X or [ |
||
Subtitle Y or Z, Title 3, [ |
||
section, or any portion of a section "of this code" is a reference | ||
to the chapter, part, subpart, section, or portion of a section as | ||
redesignated in the Estates Code, except that: | ||
(1) a reference in Subtitle X or [ |
||
2, or Subtitle Y or Z, Title 3, [ |
||
Chapter I, Estates Code, and to the revision of sections derived | ||
from Chapter I, Texas Probate Code, and any reenactments and | ||
amendments to those sections; and | ||
(2) a reference in Subtitle X or [ |
||
2, or Subtitle Y or Z, Title 3, [ |
||
section, or portion of a section that does not exist in the Estates | ||
Code is a reference to the revision or redesignation of the | ||
corresponding chapter, part, subpart, section, or portion of a | ||
section of the Texas Probate Code and any reenactments or | ||
amendments. | ||
SECTION 2.04. CONFORMING AMENDMENT. Section 21.005, | ||
Estates Code, as effective January 1, 2014, is amended to read as | ||
follows: | ||
Sec. 21.005. APPLICABILITY OF CERTAIN LAWS. | ||
Notwithstanding Section 21.002(b) [ |
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311.002, Government Code: | ||
(1) Section 311.032(c), Government Code, applies to | ||
Subtitles X and [ |
||
Title 3 [ |
||
(2) Sections 311.005(4) and 311.012(b) and (c), | ||
Government Code, apply to Subtitles X and [ |
||
and Subtitles Y and Z, Title 3. | ||
SECTION 2.05. CONFORMING AMENDMENT. The heading to Title | ||
2, Estates Code, as effective January 1, 2014, is amended to read as | ||
follows: | ||
TITLE 2. ESTATES OF DECEDENTS; DURABLE POWERS OF ATTORNEY | ||
ARTICLE 3. TRANSFER AND REDESIGNATION; REPEALER | ||
SECTION 3.01. TRANSFER AND REDESIGNATION. (a) Section | ||
604, Texas Probate Code, is transferred to Subpart A, Part 1, | ||
Subtitle Y, Title 3, Estates Code, as added by Section 1.02 of this | ||
Act, and redesignated as Section 604, Estates Code. | ||
(b) Sections 605, 606, 607, 608, and 609, Texas Probate | ||
Code, are transferred to Subpart A, Part 2, Subtitle Y, Title 3, | ||
Estates Code, as added by Section 1.02 of this Act, and redesignated | ||
as Sections 605, 606, 607, 608, and 609, Estates Code, | ||
respectively. | ||
(c) Sections 610, 611, 612, 613, 614, 615, 616, 617, and | ||
618, Texas Probate Code, are transferred to Subpart B, Part 2, | ||
Subtitle Y, Title 3, Estates Code, as added by Section 1.02 of this | ||
Act, and redesignated as Sections 610, 611, 612, 613, 614, 615, 616, | ||
617, and 618, Estates Code, respectively. | ||
(d) Section 631, Texas Probate Code, is transferred to | ||
Subpart C, Part 2, Subtitle Y, Title 3, Estates Code, as added by | ||
Section 1.02 of this Act, and redesignated as Section 631, Estates | ||
Code. | ||
(e) 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, is transferred to Subpart H, Part 2, | ||
Subtitle Z, Title 3, Estates Code, as added by Section 1.02 of this | ||
Act, and redesignated as Section 665B, Estates Code. | ||
SECTION 3.02. REPEALER. (a) Sections 481, 482, 483, 484, | ||
485, 485A, 486, 487, 487A, 488, 489, 489B, 490, 491, 492, 493, 494, | ||
495, 496, 497, 498, 499, 500, 501, 502, 503, 504, 505, 506, 601, | ||
602, 603, 621, 622, 623, 624, 625, 626, 627, 627A, 628, 629, 630, | ||
632, 633, 634, 635, 636, 641, 642, 643, 644, 645, 645A, 646, 647, | ||
647A, 648, 648A, 649, 650, 651, 653, 654, 655, 656, 657, 659, 660, | ||
661, 662, 663, 665, 665A, 665C, 665D, 666, 667, 668, 669, 670, 671, | ||
672, 673, 674, 675, 676, 677, 677A, 677B, 678, 679, 679A, 680, 681, | ||
682, 682A, 683, 683A, 684, 685, 686, 687, 689, 690, 692, 693, 694, | ||
694A, 694B, 694C, 694D, 694E, 694F, 694G, 694H, 694I, 694J, 694K, | ||
694L, 695, 695A, 696, 696A, 696B, 697, 697A, 697B, 698, 699, 700, | ||
701, 702, 702A, 703, 704, 705, 706, 707, 708, 708A, 709, 710, 711, | ||
712, 713, 714, 715, 716, 717, 718, 719, 720, 721, 722, 723, 724, | ||
725, 726, 727, 728, 729, 730, 731, 732, 733, 734, 735, 736, 737, | ||
738, 739, 741, 742, 743, 744, 745, 746, 747, 748, 749, 750, 751, | ||
752, 753, 754, 755, 756, 757, 758, 759, 760, 760A, 760B, 761, 762, | ||
763, 764, 765, 767, 768, 769, 770, 770A, 771, 772, 773, 774, 775, | ||
776, 776A, 777, 778, 779, 780, 781, 782, 783, 784, 785, 786, 787, | ||
788, 789, 790, 791, 792, 793, 794, 795, 796, 797, 798, 799, 800, | ||
801, 802, 803, 804, 805, 806, 807, 808, 809, 811, 812, 813, 814, | ||
815, 816, 817, 818, 819, 820, 821, 823, 824, 824A, 825, 826, 827, | ||
828, 829, 830, 831, 832, 833, 834, 835, 836, 837, 839, 840, 841, | ||
842, 843, 844, 845, 846, 847, 848, 849, 850, 851, 852, 853, 854, | ||
855, 855A, 855B, 857, 858, 860, 861, 862, 863, 865, 865A, 866, 867, | ||
867A, 868, 868A, 868B, 868C, 869, 869A, 869B, 869C, 870, 871, 872, | ||
873, 874, 875, 876, 877, 878, 879, 881, 881A, 882, 883, 883A, 883B, | ||
883C, 883D, 884, 884A, 885, 887, 889, 889A, 890, 890A, 891, 892, | ||
893, 894, 901, 902, 903, 904, 905, 910, 911, 912, 913, 914, 915, and | ||
916, Texas Probate Code, are repealed. | ||
(b) Subtitles M and Z, Title 2, and Title 25, Estates Code, | ||
as effective January 1, 2014, are repealed. | ||
(c) Sections 4 and 5, Chapter 680 (H.B. 2502), Acts of the | ||
81st Legislature, Regular Session, 2009, which transferred and | ||
redesignated Chapters XII and XIII, Texas Probate Code, are | ||
repealed. | ||
SECTION 3.03. LEGISLATIVE INTENT: TRANSFERS FROM TEXAS | ||
PROBATE CODE. It is the intent of the legislature that, with | ||
respect to any provision of the Texas Probate Code that is | ||
transferred by this Act to the Estates Code and redesignated as a | ||
provision of that code effective January 1, 2014, the transferred | ||
provision include all amendments to that provision enacted by the | ||
82nd and 83rd Legislatures and any reenactments of the provision by | ||
those legislatures. | ||
ARTICLE 4. GENERAL MATTERS | ||
SECTION 4.01. LEGISLATIVE INTENT. This Act is enacted | ||
under Section 43, Article III, Texas Constitution. This Act is | ||
intended as a recodification only, and no substantive change in law | ||
is intended by this Act. | ||
SECTION 4.02. SAVING PROVISION. (a) This section applies | ||
in addition to the saving provisions specified by Sections | ||
311.031(c) and (d), Government Code (Code Construction Act). | ||
(b) The repeal of a statute by this Act does not affect an | ||
amendment, revision, or reenactment of the statute by the 83rd | ||
Legislature. The amendment, revision, or reenactment made by the | ||
83rd Legislature is preserved and given effect as part of the code | ||
provision that revised the statute so amended, revised, or | ||
reenacted. | ||
(c) If any provision of Subtitle P, Title 2, or Subtitle A, | ||
C, D, E, F, G, H, or I, Title 3, Estates Code, as added by this Act | ||
effective January 1, 2014, conflicts with a statute enacted by the | ||
83rd Legislature, the statute controls. | ||
SECTION 4.03. EFFECTIVE DATE. This Act takes effect | ||
January 1, 2014. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I certify that H.B. No. 2759 was passed by the House on May | ||
10, 2011, by the following vote: Yeas 145, Nays 0, 2 present, not | ||
voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
I certify that H.B. No. 2759 was passed by the Senate on May | ||
19, 2011, by the following vote: Yeas 31, Nays 0. | ||
______________________________ | ||
Secretary of the Senate | ||
APPROVED: _____________________ | ||
Date | ||
_____________________ | ||
Governor |