Bill Text: TX HB39 | 2015-2016 | 84th Legislature | Enrolled
Bill Title: Relating to guardianships for incapacitated persons and to substitutes for guardianships for certain adults with disabilities.
Spectrum: Bipartisan Bill
Status: (Passed) 2015-05-29 - Effective on 9/1/15 [HB39 Detail]
Download: Texas-2015-HB39-Enrolled.html
H.B. No. 39 |
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relating to guardianships for incapacitated persons and to | ||
substitutes for guardianships for certain adults with | ||
disabilities. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 1001.001(b), Estates Code, is amended to | ||
read as follows: | ||
(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, | ||
including by presuming that the incapacitated person retains | ||
capacity to make personal decisions regarding the person's | ||
residence. | ||
SECTION 2. Chapter 1002, Estates Code, is amended by adding | ||
Sections 1002.0015 and 1002.031 to read as follows: | ||
Sec. 1002.0015. ALTERNATIVES TO GUARDIANSHIP. | ||
"Alternatives to guardianship" includes the: | ||
(1) execution of a medical power of attorney under | ||
Chapter 166, Health and Safety Code; | ||
(2) appointment of an attorney in fact or agent under a | ||
durable power of attorney as provided by Subtitle P, Title 2; | ||
(3) execution of a declaration for mental health | ||
treatment under Chapter 137, Civil Practice and Remedies Code; | ||
(4) appointment of a representative payee to manage | ||
public benefits; | ||
(5) establishment of a joint bank account; | ||
(6) creation of a management trust under Chapter 1301; | ||
(7) creation of a special needs trust; | ||
(8) designation of a guardian before the need arises | ||
under Subchapter E, Chapter 1104; and | ||
(9) establishment of alternate forms of | ||
decision-making based on person-centered planning. | ||
Sec. 1002.031. SUPPORTS AND SERVICES. "Supports and | ||
services" means available formal and informal resources and | ||
assistance that enable an individual to: | ||
(1) meet the individual's needs for food, clothing, or | ||
shelter; | ||
(2) care for the individual's physical or mental | ||
health; | ||
(3) manage the individual's financial affairs; or | ||
(4) make personal decisions regarding residence, | ||
voting, operating a motor vehicle, and marriage. | ||
SECTION 3. Section 1002.015, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1002.015. GUARDIANSHIP PROCEEDING. The term | ||
"guardianship proceeding" means a matter or proceeding related to a | ||
guardianship or any other matter covered by this title, including: | ||
(1) the appointment of a guardian of a minor or other | ||
incapacitated person, including an incapacitated adult for whom | ||
another court obtained continuing, exclusive jurisdiction in a suit | ||
affecting the parent-child relationship when the person was a | ||
child; | ||
(2) an application, petition, or motion regarding | ||
guardianship or a substitute for [ |
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under this title; | ||
(3) a mental health action; and | ||
(4) an application, petition, or motion regarding a | ||
trust created under Chapter 1301. | ||
SECTION 4. Section 1054.004, Estates Code, is amended by | ||
amending Subsection (a) and adding Subsection (c) to read as | ||
follows: | ||
(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; [ |
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(3) the grounds on which guardianship is sought; and | ||
(4) whether alternatives to guardianship would meet | ||
the needs of the proposed ward and avoid the need for the | ||
appointment of a guardian. | ||
(c) Before the hearing, the attorney ad litem shall discuss | ||
with the proposed ward the attorney ad litem's opinion regarding: | ||
(1) whether a guardianship is necessary for the | ||
proposed ward; and | ||
(2) if a guardianship is necessary, the specific | ||
powers or duties of the guardian that should be limited if the | ||
proposed ward receives supports and services. | ||
SECTION 5. Section 1054.054, Estates Code, is amended by | ||
adding Subsections (c) and (d) to read as follows: | ||
(c) The guardian ad litem shall: | ||
(1) investigate whether a guardianship is necessary | ||
for the proposed ward; and | ||
(2) evaluate alternatives to guardianship and | ||
supports and services available to the proposed ward that would | ||
avoid the need for appointment of a guardian. | ||
(d) The information gathered by the guardian ad litem under | ||
Subsection (c) is subject to examination by the court. | ||
SECTION 6. Sections 1054.201(a) and (b), Estates Code, are | ||
amended to read as follows: | ||
(a) An attorney for an applicant for guardianship and a [ |
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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 four [ |
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of credit for certification under this subchapter, including one | ||
hour on alternatives to guardianship and supports and services | ||
available to proposed wards. | ||
SECTION 7. Section 1101.001(b), Estates Code, is amended to | ||
read as follows: | ||
(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; | ||
(3-a) whether alternatives to guardianship and | ||
available supports and services to avoid guardianship were | ||
considered; | ||
(3-b) whether any alternatives to guardianship and | ||
supports and services available to the proposed ward considered are | ||
feasible and would avoid the need for a guardianship; | ||
(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; [ |
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(B) the proposed ward's eligibility to hold or | ||
obtain a license to operate a motor vehicle under Chapter 521, | ||
Transportation Code; and | ||
(C) the right of a proposed ward to make personal | ||
decisions regarding residence; | ||
(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 | ||
adult siblings are deceased, the names and addresses of the | ||
proposed ward's other living relatives who are related to the | ||
proposed ward within the third degree by consanguinity and 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 other living relatives who are | ||
related to the proposed ward within the third degree by | ||
consanguinity and 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 155, | ||
Government Code, and has complied with the requirements of | ||
Subchapter G, Chapter 1104. | ||
SECTION 8. Section 1101.101, Estates Code, is amended by | ||
amending Subsection (a) and adding Subsection (c) to read as | ||
follows: | ||
(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; | ||
[ |
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(C) the proposed ward's rights or property will | ||
be protected by the appointment of a guardian; | ||
(D) alternatives to guardianship that would | ||
avoid the need for the appointment of a guardian have been | ||
considered and determined not to be feasible; and | ||
(E) supports and services available to the | ||
proposed ward that would avoid the need for the appointment of a | ||
guardian have been considered and determined not to be feasible; | ||
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. | ||
(c) A finding under Subsection (a)(2)(D)(ii) must | ||
specifically state whether the proposed ward lacks the capacity, or | ||
lacks sufficient capacity with supports and services, to make | ||
personal decisions regarding residence, voting, operating a motor | ||
vehicle, and marriage. | ||
SECTION 9. Section 1101.103(b), Estates Code, is amended to | ||
read as follows: | ||
(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 functioning [ |
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the proposed ward's medical history if reasonably available; | ||
(3-a) in providing an evaluation under Subdivision | ||
(3), state whether improvement in the proposed ward's physical | ||
condition and mental functioning is possible and, if so, state the | ||
period after which the proposed ward should be reevaluated to | ||
determine whether a guardianship continues to be necessary; | ||
(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) solve problems [ |
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(D) reason logically; and | ||
(E) administer to daily life activities with and | ||
without supports and services; | ||
(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; | ||
(6-a) state whether a guardianship is necessary for | ||
the proposed ward and, if so, whether specific powers or duties of | ||
the guardian should be limited if the proposed ward receives | ||
supports and services; and | ||
(7) include any other information required by the | ||
court. | ||
SECTION 10. Sections 1101.151(a) and (b), Estates Code, are | ||
amended to read as follows: | ||
(a) If it is found that the proposed ward is totally without | ||
capacity to care for himself or herself, manage his or her property, | ||
operate a motor vehicle, make personal decisions regarding | ||
residence, 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; | ||
(5) that the person does not have the capacity to | ||
operate a motor vehicle, make personal decisions regarding | ||
residence, and [ |
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(6) if it is a guardianship of the person of the ward | ||
or of both the person and the estate of the ward, the rights of the | ||
guardian with respect to the person as specified in Section | ||
1151.051(c)(1). | ||
SECTION 11. Sections 1101.152(a) and (b), Estates Code, are | ||
amended to read as follows: | ||
(a) If it is found that the proposed ward 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 with or without supports | ||
and services, the court may appoint a guardian with limited powers | ||
and permit the proposed ward to care for himself or herself, | ||
including making personal decisions regarding residence, 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; | ||
(2-a) the specific rights and powers retained by the | ||
person: | ||
(A) with the necessity for supports and services; | ||
and | ||
(B) without the necessity for supports and | ||
services; | ||
(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: | ||
(A) retains the right to make personal decisions | ||
regarding residence or vote in a public election; or | ||
(B) maintains eligibility to hold or obtain a | ||
license to operate a motor vehicle under Chapter 521, | ||
Transportation Code. | ||
SECTION 12. Section 1101.153, Estates Code, is amended by | ||
adding Subsection (a-1) to read as follows: | ||
(a-1) If the letter or certificate under Section | ||
1101.103(b)(3-a) stated that improvement in the ward's physical | ||
condition or mental functioning is possible and specified a period | ||
of less than a year after which the ward should be reevaluated to | ||
determine continued necessity for the guardianship, an order | ||
appointing a guardian must include the date by which the guardian | ||
must submit to the court an updated letter or certificate | ||
containing the requirements of Section 1101.103(b). | ||
SECTION 13. Section 1104.002, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1104.002. PREFERENCE OF INCAPACITATED PERSON. 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, regardless of | ||
whether the person has designated by declaration a guardian before | ||
the need arises under Subchapter E. | ||
SECTION 14. Section 1151.051, Estates Code, is amended by | ||
adding Subsection (e) to read as follows: | ||
(e) Notwithstanding Subsection (c)(1) and except in cases | ||
of emergency, a guardian of the person of a ward may only place the | ||
ward in a more restrictive care facility if the guardian provides | ||
notice of the proposed placement to the court, the ward, and any | ||
person who has requested notice and after: | ||
(1) the court orders the placement at a hearing on the | ||
matter, if the ward or another person objects to the proposed | ||
placement before the eighth business day after the person's receipt | ||
of the notice; or | ||
(2) the seventh business day after the court's receipt | ||
of the notice, if the court does not schedule a hearing, on its own | ||
motion, on the proposed placement before that day. | ||
SECTION 15. Sections 1202.001(b) and (c), Estates Code, are | ||
amended to read as follows: | ||
(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, or | ||
sufficient capacity with supports and services, 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) Except for an order issued under Section 1101.153(a-1), | ||
an [ |
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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. | ||
SECTION 16. Section 1202.051, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1202.051. APPLICATION AUTHORIZED. 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, or lacks | ||
sufficient capacity with supports and services, 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, or | ||
sufficient capacity with supports and services, 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, make personal decisions regarding residence, or [ |
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manage the ward's own financial affairs commensurate with the | ||
ward's ability, with or without supports and services. | ||
SECTION 17. Section 1202.151(a), Estates Code, is amended | ||
to read as follows: | ||
(a) Except as provided by Section 1202.201, 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, including whether: | ||
(1) the guardianship is necessary; and | ||
(2) specific powers or duties of the guardian should | ||
be limited if the ward receives supports and services. | ||
SECTION 18. Section 1202.152(b), Estates Code, is amended | ||
to read as follows: | ||
(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, or | ||
sufficient capacity with supports and services, 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. | ||
SECTION 19. Section 1202.153(c), Estates Code, is amended | ||
to read as follows: | ||
(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, with or without supports and services, warrants a | ||
modification of the guardianship and that some of the ward's rights | ||
need to be restored, with or without supports and services. | ||
SECTION 20. Section 1202.154(a), Estates Code, is amended | ||
to read as follows: | ||
(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; [ |
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(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; and | ||
(4) if applicable, any necessary supports and services | ||
for the restoration of the ward's capacity or modification of the | ||
guardianship. | ||
SECTION 21. Section 1202.156, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1202.156. ADDITIONAL REQUIREMENTS FOR ORDER MODIFYING | ||
GUARDIANSHIP. If the court finds that a guardian's powers or | ||
duties 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 make | ||
personal decisions regarding residence; and | ||
(5) that the clerk shall modify the letters of | ||
guardianship to the extent applicable to conform to the order. | ||
SECTION 22. The heading to Subtitle I, Title 3, Estates | ||
Code, is amended to read as follows: | ||
SUBTITLE I. OTHER SPECIAL PROCEEDINGS AND SUBSTITUTES FOR | ||
[ |
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SECTION 23. Subtitle I, Title 3, Estates Code, is amended by | ||
adding Chapter 1357 to read as follows: | ||
CHAPTER 1357. SUPPORTED DECISION-MAKING AGREEMENT ACT | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Sec. 1357.001. SHORT TITLE. This chapter may be cited as | ||
the Supported Decision-Making Agreement Act. | ||
Sec. 1357.002. DEFINITIONS. In this chapter: | ||
(1) "Adult" means an individual 18 years of age or | ||
older or an individual under 18 years of age who has had the | ||
disabilities of minority removed. | ||
(2) "Disability" means, with respect to an individual, | ||
a physical or mental impairment that substantially limits one or | ||
more major life activities. | ||
(3) "Supported decision-making" means a process of | ||
supporting and accommodating an adult with a disability to enable | ||
the adult to make life decisions, including decisions related to | ||
where the adult wants to live, the services, supports, and medical | ||
care the adult wants to receive, whom the adult wants to live with, | ||
and where the adult wants to work, without impeding the | ||
self-determination of the adult. | ||
(4) "Supported decision-making agreement" is an | ||
agreement between an adult with a disability and a supporter | ||
entered into under this chapter. | ||
(5) "Supporter" means an adult who has entered into a | ||
supported decision-making agreement with an adult with a | ||
disability. | ||
Sec. 1357.003. PURPOSE. The purpose of this chapter is to | ||
recognize a less restrictive substitute for guardianship for adults | ||
with disabilities who need assistance with decisions regarding | ||
daily living but who are not considered incapacitated persons for | ||
purposes of establishing a guardianship under this title. | ||
SUBCHAPTER B. SCOPE OF AGREEMENT AND AGREEMENT REQUIREMENTS | ||
Sec. 1357.051. SCOPE OF SUPPORTED DECISION-MAKING | ||
AGREEMENT. An adult with a disability may voluntarily, without | ||
undue influence or coercion, enter into a supported decision-making | ||
agreement with a supporter under which the adult with a disability | ||
authorizes the supporter to do any or all of the following: | ||
(1) provide supported decision-making, including | ||
assistance in understanding the options, responsibilities, and | ||
consequences of the adult's life decisions, without making those | ||
decisions on behalf of the adult with a disability; | ||
(2) subject to Section 1357.054, assist the adult in | ||
accessing, collecting, and obtaining information that is relevant | ||
to a given life decision, including medical, psychological, | ||
financial, educational, or treatment records, from any person; | ||
(3) assist the adult with a disability in | ||
understanding the information described by Subdivision (2); and | ||
(4) assist the adult in communicating the adult's | ||
decisions to appropriate persons. | ||
Sec. 1357.052. AUTHORITY OF SUPPORTER. A supporter may | ||
exercise the authority granted to the supporter in the supported | ||
decision-making agreement. | ||
Sec. 1357.053. TERM OF AGREEMENT. (a) Except as provided | ||
by Subsection (b), the supported decision-making agreement extends | ||
until terminated by either party or by the terms of the agreement. | ||
(b) The supported decision-making agreement is terminated | ||
if: | ||
(1) the Department of Family and Protective Services | ||
finds that the adult with a disability has been abused, neglected, | ||
or exploited by the supporter; or | ||
(2) the supporter is found criminally liable for | ||
conduct described by Subdivision (1). | ||
Sec. 1357.054. ACCESS TO PERSONAL INFORMATION. (a) A | ||
supporter is only authorized to assist the adult with a disability | ||
in accessing, collecting, or obtaining information that is relevant | ||
to a decision authorized under the supported decision-making | ||
agreement. | ||
(b) If a supporter assists an adult with a disability in | ||
accessing, collecting, or obtaining personal information, | ||
including protected health information under the Health Insurance | ||
Portability and Accountability Act of 1996 (Pub. L. No. 104-191) or | ||
educational records under the Family Educational Rights and Privacy | ||
Act of 1974 (20 U.S.C. Section 1232g), the supporter shall ensure | ||
the information is kept privileged and confidential, as applicable, | ||
and is not subject to unauthorized access, use, or disclosure. | ||
(c) The existence of a supported decision-making agreement | ||
does not preclude an adult with a disability from seeking personal | ||
information without the assistance of a supporter. | ||
Sec. 1357.055. AUTHORIZING AND WITNESSING OF SUPPORTED | ||
DECISION-MAKING AGREEMENT. (a) A supported decision-making | ||
agreement must be signed voluntarily, without coercion or undue | ||
influence, by the adult with a disability and the supporter in the | ||
presence of two or more subscribing witnesses or a notary public. | ||
(b) If signed before two witnesses, the attesting witnesses | ||
must be at least 14 years of age. | ||
Sec. 1357.056. FORM OF SUPPORTED DECISION-MAKING | ||
AGREEMENT. (a) Subject to Subsection (b), a supported | ||
decision-making agreement is valid only if it is in substantially | ||
the following form: | ||
SUPPORTED DECISION-MAKING AGREEMENT | ||
Appointment of Supporter | ||
I, (insert your name), make this agreement of my own free | ||
will. | ||
I agree and designate that: | ||
Name: | ||
Address: | ||
Phone Number: | ||
E-mail Address: | ||
is my supporter. My supporter may help me with making everyday life | ||
decisions relating to the following: | ||
Y/N obtaining food, clothing, and shelter | ||
Y/N taking care of my physical health | ||
Y/N managing my financial affairs. | ||
My supporter is not allowed to make decisions for me. To help | ||
me with my decisions, my supporter may: | ||
1. Help me access, collect, or obtain information that is | ||
relevant to a decision, including medical, psychological, | ||
financial, educational, or treatment records; | ||
2. Help me understand my options so I can make an informed | ||
decision; or | ||
3. Help me communicate my decision to appropriate persons. | ||
Y/N A release allowing my supporter to see protected | ||
health information under the Health Insurance Portability and | ||
Accountability Act of 1996 (Pub. L. No. 104-191) is attached. | ||
Y/N A release allowing my supporter to see educational | ||
records under the Family Educational Rights and Privacy Act of 1974 | ||
(20 U.S.C. Section 1232g) is attached. | ||
Effective Date of Supported Decision-Making Agreement | ||
This supported decision-making agreement is effective | ||
immediately and will continue until (insert date) or until the | ||
agreement is terminated by my supporter or me or by operation of | ||
law. | ||
Signed this ______ day of _________, 20___ | ||
Consent of Supporter | ||
I, (name of supporter), consent to act as a supporter under | ||
this agreement. | ||
(signature of supporter)(printed name of supporter) | ||
Signature | ||
(my signature)(my printed name) | ||
(witness 1 signature)(printed name of witness 1) | ||
(witness 2 signature)(printed name of witness 2) | ||
State of | ||
County of | ||
Thisdocumentwasacknowledgedbeforeme | ||
on _______________________________ (date) | ||
by _______________________________ and _______________________ | ||
(name of adult with a disability)(name of supporter) | ||
(signature of notarial officer) | ||
(Seal, if any, of notary) | ||
(printed name) | ||
My commission expires: | ||
WARNING: PROTECTION FOR THE ADULT WITH A DISABILITY | ||
IF A PERSON WHO RECEIVES A COPY OF THIS AGREEMENT OR IS AWARE | ||
OF THE EXISTENCE OF THIS AGREEMENT HAS CAUSE TO BELIEVE THAT THE | ||
ADULT WITH A DISABILITY IS BEING ABUSED, NEGLECTED, OR EXPLOITED BY | ||
THE SUPPORTER, THE PERSON SHALL REPORT THE ALLEGED ABUSE, NEGLECT, | ||
OR EXPLOITATION TO THE DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES | ||
BY CALLING THE ABUSE HOTLINE AT 1-800-252-5400 OR ONLINE AT | ||
WWW.TXABUSEHOTLINE.ORG. | ||
(b) A supported decision-making agreement may be in any form | ||
not inconsistent with Subsection (a) and the other requirements of | ||
this chapter. | ||
SUBCHAPTER C. DUTY OF CERTAIN PERSONS WITH RESPECT TO AGREEMENT | ||
Sec. 1357.101. RELIANCE ON AGREEMENT; LIMITATION OF | ||
LIABILITY. (a) A person who receives the original or a copy of a | ||
supported decision-making agreement shall rely on the agreement. | ||
(b) A person is not subject to criminal or civil liability | ||
and has not engaged in professional misconduct for an act or | ||
omission if the act or omission is done in good faith and in | ||
reliance on a supported decision-making agreement. | ||
Sec. 1357.102. REPORTING OF SUSPECTED ABUSE, NEGLECT, OR | ||
EXPLOITATION. If a person who receives a copy of a supported | ||
decision-making agreement or is aware of the existence of a | ||
supported decision-making agreement has cause to believe that the | ||
adult with a disability is being abused, neglected, or exploited by | ||
the supporter, the person shall report the alleged abuse, neglect, | ||
or exploitation to the Department of Family and Protective Services | ||
in accordance with Section 48.051, Human Resources Code. | ||
SECTION 24. (a) Except as otherwise provided by this | ||
section, the changes in law made by this Act apply to: | ||
(1) a guardianship created before, on, or after the | ||
effective date of this Act; and | ||
(2) an application for a guardianship pending on, or | ||
filed on or after, the effective date of this Act. | ||
(b) Sections 1054.004 and 1054.054, Estates Code, as | ||
amended by this Act, apply only to a guardianship proceeding for | ||
which a court has appointed a guardian ad litem or attorney ad litem | ||
to represent the interests of a proposed ward on or after the | ||
effective date of this Act. | ||
(c) Sections 1054.201, 1101.101, 1101.103, 1101.151, | ||
1101.152, and 1101.153, Estates Code, as amended by this Act, apply | ||
only to a guardianship proceeding filed on or after the effective | ||
date of this Act. A guardianship proceeding filed before the | ||
effective date of this Act is governed by the law in effect on the | ||
date the proceeding was filed, and the former law is continued in | ||
effect for that purpose. | ||
(d) Section 1101.001, Estates Code, as amended by this Act, | ||
applies only to an application for the appointment of a guardian | ||
filed on or after the effective date of this Act. An application | ||
for the appointment of a guardian filed before the effective date of | ||
this Act is governed by the law in effect on the date the | ||
application was filed, and the former law is continued in effect for | ||
that purpose. | ||
(e) Section 1202.051, Estates Code, as amended by this Act, | ||
applies only to an application for the restoration of a ward's | ||
capacity or the modification of a ward's guardianship that is filed | ||
on or after the effective date of this Act. An application for the | ||
restoration of a ward's capacity or the modification of a ward's | ||
guardianship that is filed before the effective date of this Act is | ||
governed by the law in effect on the date the application was filed, | ||
and the former law is continued in effect for that purpose. | ||
(f) Sections 1202.151, 1202.152, 1202.153, 1202.154, and | ||
1202.156, Estates Code, as amended by this Act, apply only to a | ||
proceeding for the restoration of a ward's capacity or the | ||
modification of a ward's guardianship that is filed on or after the | ||
effective date of this Act. An application for the restoration of a | ||
ward's capacity or the modification of a ward's guardianship that is | ||
filed before the effective date of this Act is governed by the law | ||
in effect on the date the application was filed, and the former law | ||
is continued in effect for that purpose. | ||
SECTION 25. This Act takes effect September 1, 2015. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I certify that H.B. No. 39 was passed by the House on April | ||
21, 2015, by the following vote: Yeas 145, Nays 0, 1 present, not | ||
voting; and that the House concurred in Senate amendments to H.B. | ||
No. 39 on May 18, 2015, by the following vote: Yeas 129, Nays 0, 2 | ||
present, not voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
I certify that H.B. No. 39 was passed by the Senate, with | ||
amendments, on May 11, 2015, by the following vote: Yeas 31, Nays | ||
0. | ||
______________________________ | ||
Secretary of the Senate | ||
APPROVED: __________________ | ||
Date | ||
__________________ | ||
Governor |