Bill Text: TX HB3394 | 2021-2022 | 87th Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to determining the incapacity of a guardian.
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Passed) 2021-06-04 - Effective on 9/1/21 [HB3394 Detail]
Download: Texas-2021-HB3394-Introduced.html
Bill Title: Relating to determining the incapacity of a guardian.
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Passed) 2021-06-04 - Effective on 9/1/21 [HB3394 Detail]
Download: Texas-2021-HB3394-Introduced.html
87R8635 KFF-F | ||
By: Metcalf | H.B. No. 3394 |
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relating to determining the incapacity of a proposed guardian or | ||
guardian. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 1101.002, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1101.002. CONTENTS OF APPLICATION; CONFIDENTIALITY OF | ||
CERTAIN ADDRESSES. An application filed under Section 1101.001 or | ||
1203.0521 may omit the address of a person named in the application | ||
if: | ||
(1) the application states that the person is or was | ||
protected by a protective order issued under Chapter 85, Family | ||
Code; | ||
(2) a copy of the protective order is attached to the | ||
application as an exhibit; | ||
(3) the application states the county in which the | ||
person resides; | ||
(4) the application indicates the place where notice | ||
to or the issuance and service of citation on the person may be made | ||
or sent; and | ||
(5) the application is accompanied by a request for an | ||
order under Section 1051.201 specifying the manner of issuance, | ||
service, and return of citation or notice on the person. | ||
SECTION 2. Subchapter B, Chapter 1203, Estates Code, is | ||
amended by adding Section 1203.0521 to read as follows: | ||
Sec. 1203.0521. DETERMINATION REGARDING PROPOSED | ||
GUARDIAN'S OR GUARDIAN'S INCAPACITY. (a) The court on its own | ||
motion may or on the written application of an interested person | ||
shall order an investigation into whether a proposed guardian or | ||
guardian appointed by the court under this title is an | ||
incapacitated person for purposes of appointing a guardian or | ||
Section 1203.052(a)(5)(A), as applicable. | ||
(b) Subject to Section 1101.002, an application filed under | ||
this section must be sworn to by the applicant and state: | ||
(1) the proposed ward's or ward's name, sex, date of | ||
birth, and address; | ||
(2) the proposed guardian's or guardian's name, sex, | ||
date of birth, and address; | ||
(3) the nature and degree of the proposed guardian's or | ||
guardian's alleged incapacity; | ||
(4) the facts requiring an investigation into the | ||
proposed guardian's or guardian's capacity; and | ||
(5) the applicant's interest in the proposed ward or | ||
ward. | ||
(c) The court on its own motion may or on receipt of an | ||
application under this section shall appoint a guardian ad litem or | ||
court investigator to investigate the conditions and circumstances | ||
of the proposed guardian or guardian, including any facts alleged | ||
in the application that would give rise to a finding of incapacity, | ||
to determine whether there is probable cause to believe the | ||
proposed guardian or guardian is an incapacitated person. The | ||
court's order appointing the guardian ad litem or court | ||
investigator must include a statement that the proposed guardian or | ||
guardian has the right to petition the court to have the appointment | ||
set aside. | ||
(d) The guardian ad litem or court investigator shall file | ||
with the court a report of the findings and conclusions of the | ||
investigation conducted under Subsection (c). | ||
(e) If a guardian ad litem or court investigator, after an | ||
investigation as prescribed by this section, determines that | ||
probable cause exists to believe the proposed guardian or guardian | ||
is an incapacitated person, the guardian ad litem or court | ||
investigator, as applicable, shall file with the court an | ||
application recommending an independent examination of the | ||
proposed guardian's or guardian's capacity by a physician licensed | ||
in this state. | ||
(f) If the court determines it is necessary, the court may | ||
appoint one or more physicians licensed in this state to examine the | ||
proposed guardian or guardian. The court must make its | ||
determination with respect to the necessity for a physician's | ||
examination of the proposed guardian or guardian at a hearing held | ||
for that purpose. Not later than the fourth day before the date of | ||
the hearing, the court shall give to the proposed guardian or | ||
guardian written notice specifying the purpose, date, and time of | ||
the hearing. | ||
(g) A physician who examines the proposed guardian or | ||
guardian under this section shall return to the court a written | ||
letter or certificate from the physician that describes the nature, | ||
degree, and severity of the proposed guardian's or guardian's | ||
incapacity, if any, including any functional deficits regarding the | ||
proposed guardian's or guardian's ability to perform the duties a | ||
guardian owes to a ward. A written letter or certificate by a | ||
physician finding incapacity under this subsection may be relied on | ||
by the court only for purposes of making a determination of | ||
incapacity: | ||
(1) under Section 1203.052(a)(5)(A); | ||
(2) with regard to the appointment of a guardian for | ||
the proposed ward; or | ||
(3) for creating a guardianship over the proposed | ||
guardian or guardian. | ||
(h) Notwithstanding Section 1155.151 and except as provided | ||
by Subsection (j), the court may order court costs associated with | ||
making a determination relating to incapacity under this section to | ||
be paid by the applicant who requested the investigation under this | ||
section if the proposed guardian or guardian is determined not to be | ||
an incapacitated person. | ||
(i) Notwithstanding Section 1155.151 and except as provided | ||
by Subsection (j), the court may order court costs associated with | ||
making a determination relating to incapacity under this section to | ||
be paid by the proposed guardian or guardian who is the subject of | ||
an investigation conducted under Subsection (c) if the proposed | ||
guardian or guardian is determined to be an incapacitated person. | ||
(j) If the applicant, proposed guardian, or guardian | ||
ordered to pay court costs under Subsection (h) or (i) files, on the | ||
person's own behalf, an affidavit of inability to pay court costs | ||
under Rule 145, Texas Rules of Civil Procedure, that shows the | ||
person is unable to afford the costs, the court shall order costs be | ||
paid out of the county treasury. | ||
SECTION 3. The changes in law made by this Act apply to: | ||
(1) a guardianship created before, on, or after the | ||
effective date of this Act; and | ||
(2) an application for a guardianship pending on, or | ||
filed on or after, the effective date of this Act. | ||
SECTION 4. This Act takes effect September 1, 2021. |