Bill Text: TX HB3318 | 2021-2022 | 87th Legislature | Introduced

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Bill Title: Relating to guardianships, alternatives to guardianship, and supports and services for incapacitated persons.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2021-04-21 - Left pending in committee [HB3318 Detail]

Download: Texas-2021-HB3318-Introduced.html

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By: Neave H.B. No. 3318

A BILL TO BE ENTITLED
AN ACT
relating to guardianships, alternatives to guardianship, and
supports and services for incapacitated persons.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1023.005, Estates Code, is amended to
read as follows:
Sec. 1023.005. COURT ACTION. (a) On hearing an application
or motion under Section 1023.003, if [good cause is not shown to
deny the transfer and] it appears that transfer of the guardianship
is in the best interests of the ward and either the ward has resided
in the county to which the guardianship is to be transferred for at
least six months or good cause is not otherwise shown to deny the
transfer, the court shall enter an order:
(1) authorizing the transfer on payment on behalf of
the estate of all accrued costs; [and]
(2) requiring that any existing bond of the guardian
must remain in effect until a new bond has been given or a rider has
been filed in accordance with Section 1023.010; and
(3) certifying that the guardianship is in compliance
with this code at the time of transfer.
(b) In making a determination that the transfer is in the
best interests of the ward under Subsection (a), the court may
consider:
(1) the interests of justice;
(2) the convenience of the parties; and
(3) the preference of the ward, if the ward is 12 years
of age or older.
(c) On receipt of an order described by Subsection (a), the
county shall accept the transfer of the guardianship.
SECTION 2. Section 1023.008, Estates Code, is amended to
read as follows:
Sec. 1023.008. CONTINUATION OF GUARDIANSHIP. (a) When a
guardianship is transferred from one county to another in
accordance with this chapter:
(1) [,] the guardianship proceeds in the court to
which it was transferred as if it had been originally commenced in
that court;
(2) the court to which the guardianship is transferred
becomes the court of continuing, exclusive jurisdiction;
(3) a proceeding relating to the guardianship that is
commenced in the court ordering the transfer continues in the court
to which the guardianship is transferred as if the proceeding
commenced in the receiving court;
(4) a judgment or order entered in the guardianship
before the transfer has the same effect and must be enforced as a
judgment or order entered by the court to which the guardianship is
transferred; and
(5) the court ordering the transfer does not retain:
(A) jurisdiction of the ward who is the subject
of the guardianship; and
(B) the authority to enforce an order entered for
a violation of this title that occurred before or after the
transfer.
(b) It is not necessary to record in the receiving court any
of the papers in the case that were recorded in the court from which
the case was transferred.
SECTION 3. Chapter 1023, Estates Code, is amended by adding
Section 1023.011 to read as follows:
Sec. 1023.011. NO LIABILITY OF JUDGE. (a) When a
guardianship is transferred from one county to another in
accordance with this chapter, a judge of the court from which the
guardianship is transferred may not be held civilly liable for any
injury, damage, or loss to the ward or the ward's estate that occurs
after the transfer.
(b) A judge of the court to which a guardianship is
transferred as described by Subsection (a) may not be held civilly
liable for any injury, damage, or loss to the ward or the ward's
estate that occurred before the transfer.
SECTION 4. Subchapter D, Chapter 1055, Estates Code, is
amended to read as follows:
SUBCHAPTER D. MEDIATION
Sec. 1055.151. MEDIATION OF CONTESTED GUARDIANSHIP
PROCEEDING. (a) Subject to Subsection (b), on [On] the written
agreement of the parties or on the court's own motion, the court may
refer a contested guardianship proceeding to mediation.
(b) If the court refers to mediation a proceeding under
Subsection (a) regarding the appointment of a guardian for a
proposed ward:
(1) a determination of incapacity of the proposed ward
may be an issue to be mediated, but the applicant for guardianship
must still prove to the court that the proposed ward is an
incapacitated person in accordance with the requirements of Chapter
1101; and
(2) all parties to the proceeding shall evaluate
during the mediation alternatives to guardianship and supports and
services available to the proposed ward, including whether the
supports and services and alternatives to guardianship would be
feasible to avoid the need for appointment of a guardian.
(c) The cost of mediation shall be paid by the parties to the
proceeding unless otherwise ordered by the court. If the parties
are unable to pay the cost of mediation, the court may refer the
parties to a local alternative dispute resolution center providing
services as part of a system for resolution of disputes established
under Section 152.002, Civil Practice and Remedies Code, if a
system has been established in the county, and the local center may
waive mediation costs as appropriate.
Sec. 1055.152. MEDIATED SETTLEMENT AGREEMENTS. (a) A
mediated settlement agreement is binding on the parties if the
agreement:
(1) provides, in a prominently displayed statement
that is in boldfaced type, in capital letters, or underlined, that
the agreement is not subject to revocation by the parties;
(2) is signed by each party to the agreement; and
(3) is signed by the party's attorney, if any, who is
present at the time the agreement is signed.
(b) [(c)] If a mediated settlement agreement meets the
requirements of this section, a party is entitled to judgment on the
mediated settlement agreement notwithstanding Rule 11, Texas Rules
of Civil Procedure, or another rule or law.
(c) [(d)] Notwithstanding Subsections (a) and (b) [and
(c)], a court may decline to enter a judgment on a mediated
settlement agreement if the court finds that the agreement is not in
the ward's or proposed ward's best interests.
SECTION 5. Section 1202.001, Estates Code, is amended by
adding Subsection (b-1) to read as follows:
(b-1) A guardianship of the person shall be settled and
closed when the court finds that the ward's incapacity needs can be
managed without the necessity for that continued guardianship by an
alternative to guardianship or with supports and services as
provided by Subchapter F.
SECTION 6. Chapter 1202, Estates Code, is amended by adding
Subchapter F to read as follows:
SUBCHAPTER F. TERMINATION OF GUARDIANSHIP OF THE PERSON ON FINDING
THAT THE WARD'S INCAPACITY NEEDS CAN BE MANAGED WITHOUT
GUARDIANSHIP
Sec. 1202.231. TERMINATION OF GUARDIANSHIP OF THE PERSON ON
FINDING THAT WARD'S INCAPACITY NEEDS CAN BE MANAGED WITHOUT
GUARDIANSHIP. (a) In addition to a court's possible termination of
a guardianship under Section 1202.001(b), on application by the
guardian of the person of a ward, a court investigator or guardian
ad litem appointed by the court, or another person interested in the
ward's welfare who has been granted permission by the court to
intervene under Section 1055.003, or on the court's own motion and
subject to Section 1202.232, the court may order that the
guardianship of the person of the ward terminate and be settled and
closed if the court makes the findings required under Section
1202.233.
Sec. 1202.232. PHYSICIAN'S LETTER OR CERTIFICATE REQUIRED.
(a) The court may not grant an order terminating a guardianship of
the person under Section 1202.231 unless the applicant presents to
the court or the court secures 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 the date the court enters the court's
motion; or
(2) any time after the date the application was filed
or the date the court's motion was entered 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 of
the ward, including the ward's medical history if reasonably
available;
(2) provide a medical prognosis for the ward
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 the ward 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;
(6) describe feasible alternatives to guardianship
available to the ward that would avoid the need for the continued
appointment of a guardian of the person and state whether, in the
physician's opinion, those alternatives to guardianship meet the
following needs of the ward without the necessity for a continued
guardianship of the person:
(A) provision of food, clothing, and shelter for
the ward's own self;
(B) care for the ward's own physical health; and
(C) management of the ward's financial affairs;
(7) describe feasible supports and services available
to the ward that would avoid the need for the continued appointment
of a guardian of the person for the ward and state whether, in the
physician's opinion, the supports and services meet the following
needs of the ward without the necessity for a continued
guardianship of the person:
(A) provision of food, clothing, and shelter for
the ward's own self;
(B) care for the ward's own physical health; and
(C) management of the ward's financial affairs;
and
(8) 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.
Sec. 1202.233. FINDINGS REQUIRED. Before ordering the
termination of a guardianship of the person under Section 1202.231,
the court must find by a preponderance of the evidence that:
(1) the ward remains a partially or completely
incapacitated person;
(2) the current nature and degree of the ward's
incapacity and the ward's needs can be managed without the
necessity of a continued guardianship of the person by:
(A) alternatives to guardianship that are
available to the ward and that are determined to be feasible; or
(B) supports and services that are available to
the ward and that are determined to be feasible; and
(3) termination of the guardianship of the person:
(A) is in the ward's best interest; and
(B) will encourage the development or
maintenance of maximum self-reliance and independence in the ward.
Sec. 1202.234. GENERAL REQUIREMENTS FOR ORDER. A court
order that terminates a guardianship of the person under this
subchapter must:
(1) contain the findings required under Section
1202.232;
(2) state the guardian's name;
(3) state the ward's name;
(4) specify:
(A) the supports and services that:
(i) will meet the ward's needs without the
continued necessity for guardianship of the person; and
(ii) justify the termination of that
guardianship; or
(B) the alternatives to guardianship that:
(i) will meet the ward's needs without the
continued necessity for guardianship of the person; and
(ii) justify the termination of that
guardianship;
(5) identify the persons or entities providing or that
will provide:
(A) the supports and services described by
Subdivision (4)(A); or
(B) alternatives to guardianship described by
Subdivision (4)(B);
(6) state that the guardian is required to:
(A) immediately settle the guardianship in
accordance with this title; and
(B) deliver all of the ward's remaining personal
effects and assets, if any, to the persons or entities identified
under Subdivision (5)(A) or (B), as applicable; and
(7) state that the clerk shall revoke letters of
guardianship of the person when the guardianship is finally settled
and closed.
Sec. 1202.235. APPOINTMENT OF ATTORNEY AD LITEM OR GUARDIAN
AD LITEM. A court may enter additional orders in the best interest
of the ward, including:
(1) requiring notice to interested persons;
(2) appointing a court investigator; or
(3) appointing an attorney ad litem or guardian ad
litem, or both, for the ward.
SECTION 7. Chapter 155, Government Code, is amended by
adding Subchapter G to read as follows:
SUBCHAPTER G. GUARDIANSHIP MEDIATION TRAINING
Sec. 155.301. TRAINING. (a) The office by rule shall
establish a training course with at least 24 hours of training for
persons facilitating mediations under Title 3, Estates Code, that
may be provided by a mediation training provider approved by the
office. A mediation training provider shall adhere to the
established curriculum in providing the training course.
(b) This section does not require a mediator facilitating a
mediation under Title 3, Estates Code, to attend or be certified
under a training course established under Subsection (a).
SECTION 8. The changes in law made by this Act apply to a
guardianship created before, on, or after the effective date of
this Act.
SECTION 9. The Office of Court Administration of the Texas
Judicial System is required to implement a provision of this Act
only if the legislature appropriates money specifically for that
purpose. If the legislature does not appropriate money specifically
for that purpose, the office may, but is not required to, implement
a provision of this Act using other appropriations available for
that purpose.
SECTION 10. This Act takes effect September 1, 2021.