Bill Text: TX HB4562 | 2019-2020 | 86th Legislature | Introduced
Bill Title: Relating to parental administrations for certain incapacitated adults; authorizing a fee; creating a criminal offense.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2019-04-23 - Withdrawn from schedule [HB4562 Detail]
Download: Texas-2019-HB4562-Introduced.html
86R538 KFF-F | ||
By: Metcalf | H.B. No. 4562 |
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relating to parental administrations for certain incapacitated | ||
adults; authorizing a fee; creating a criminal offense. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
ARTICLE 1. PARENTAL ADMINISTRATION | ||
SECTION 1.01. Section 1002.0015, Estates Code, is amended | ||
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; [ |
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(9) establishment of alternate forms of | ||
decision-making based on person-centered planning; and | ||
(10) appointment of a parental administrator under | ||
Chapter 1359. | ||
SECTION 1.02. Section 1002.002, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1002.002. ATTORNEY AD LITEM. "Attorney ad litem" | ||
means an attorney appointed by a court to represent and advocate on | ||
behalf of: | ||
(1) a proposed ward, an incapacitated person, an | ||
unborn person, or another person described by Section 1054.007 in a | ||
guardianship proceeding; or | ||
(2) a proposed incapacitated adult, as defined by | ||
Section 1359.0001, in a proceeding for a parental administration | ||
under Chapter 1359. | ||
SECTION 1.03. Subchapter A, Chapter 1202, Estates Code, is | ||
amended by adding Section 1202.004 to read as follows: | ||
Sec. 1202.004. TERMINATION OF GUARDIANSHIP OF THE PERSON ON | ||
CREATION OF PARENTAL ADMINISTRATION. (a) On the application of a | ||
parent, as defined by Section 1359.0001, a court with jurisdiction | ||
over a guardianship of the person may: | ||
(1) terminate the guardianship if the court finds that | ||
it is in the best interests of the ward to be treated as a proposed | ||
incapacitated adult under Chapter 1359; and | ||
(2) appoint a parental administrator of the | ||
incapacitated adult under that chapter. | ||
(b) The ward's legal and civil rights and powers are | ||
restored on termination of the guardianship and creation of a | ||
parental administration under this section. | ||
SECTION 1.04. Section 1002.013, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1002.013. GUARDIAN AD LITEM. "Guardian ad litem" | ||
means a person appointed by a court to represent the best interests | ||
of an incapacitated person in a guardianship or parental | ||
administration proceeding. | ||
SECTION 1.05. Section 1002.017, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1002.017. INCAPACITATED PERSON. "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 or parental | ||
administrator, as defined by Section 1359.0001, appointed for the | ||
person to receive funds due the person from a governmental source. | ||
SECTION 1.06. Subtitle I, Title 3, Estates Code, is amended | ||
by adding Chapter 1359 to read as follows: | ||
CHAPTER 1359. PARENTAL ADMINISTRATION | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Sec. 1359.0001. DEFINITIONS. (a) In this chapter: | ||
(1) "Incapacitated adult" means a person who is 18 | ||
years of age or older and who is an incapacitated person as that | ||
term is defined by Section 1002.017. | ||
(2) "Parent" has the meaning assigned by Section | ||
1002.022, except that the term includes a person who was appointed | ||
the conservator of a child under Chapter 153, Family Code. | ||
(3) "Parental administrator" means a person appointed | ||
as a parental administrator under Section 1359.0108. | ||
(4) "Proposed incapacitated adult" means a person | ||
alleged in a parental administration proceeding under this chapter | ||
to be an incapacitated adult. | ||
(b) To the extent a definition of a term provided by this | ||
chapter conflicts with the definition of that term provided by | ||
Chapter 1002, the definition provided by this chapter prevails in | ||
this chapter. | ||
Sec. 1359.0002. JURISDICTION AND VENUE. (a) Except as | ||
otherwise provided by this section, a proceeding for the | ||
appointment of a parental administrator must be brought in the | ||
county in which the proposed incapacitated adult resides or is | ||
located on the date the application is filed. | ||
(b) Subject to Subsection (d) or (e), if two or more courts | ||
have concurrent venue of a parental administration proceeding or if | ||
at least one court has venue of a guardianship proceeding and | ||
another court has venue of a parental administration proceeding | ||
respecting the same incapacitated adult or proposed incapacitated | ||
adult, the court in which an application for parental | ||
administration or guardianship, as applicable, is initially filed, | ||
has and retains venue over the proceeding. | ||
(c) If a parental administration proceeding is commenced in | ||
more than one county or if a parental administration proceeding is | ||
commenced in one county and a guardianship proceeding is commenced | ||
in another county respecting the same incapacitated adult or | ||
proposed incapacitated adult, the proceeding shall be stayed except | ||
in the county in which a proceeding was initially commenced until | ||
final determination of proper venue is made by the court in the | ||
county in which a proceeding was initially commenced. A proceeding | ||
is considered commenced by the filing of an application alleging | ||
facts sufficient to confer venue. | ||
(d) If a guardianship exists for a proposed incapacitated | ||
adult, the court in the county in which the guardianship is pending | ||
has jurisdiction and venue of the parental administration | ||
application to the exclusion of any other court. | ||
(e) Notwithstanding Sections 1023.001 and 1023.002, if a | ||
parental administration proceeding exists for a proposed ward, the | ||
court in the county in which the parental administration is pending | ||
has venue and jurisdiction of the guardianship proceeding to the | ||
exclusion of any other court. | ||
Sec. 1359.0003. TRANSFER OF PARENTAL ADMINISTRATION TO | ||
ANOTHER COUNTY. (a) When a parental administrator or any other | ||
person desires to transfer the parental administration from one | ||
county to another, the person shall file a written application in | ||
the court in which the parental administration is pending stating | ||
the reason for the transfer. | ||
(b) With notice as provided by Section 1359.0004, the court | ||
in which a parental administration is pending, on the court's own | ||
motion, may transfer the parental administration to another county | ||
if the incapacitated adult resides in the county to which the | ||
parental administration is to be transferred. | ||
Sec. 1359.0004. NOTICE. If an application is filed by a | ||
person other than the parental administrator or if a court made a | ||
motion to transfer a parental administration, the parental | ||
administrator shall be cited by personal service to appear and show | ||
cause why the parental administration should not be transferred. | ||
Sec. 1359.0005. COURT ACTION. On hearing of an application | ||
or motion under this subchapter, if good cause is not shown to deny | ||
the transfer and it appears that transfer of the parental | ||
administration is in the best interests of the incapacitated adult, | ||
the court shall enter an order authorizing the transfer on payment | ||
of all accrued costs of court. | ||
Sec. 1359.0006. PRO SE REPRESENTATION. Notwithstanding any | ||
other law, the applicant who files a parental administration | ||
application may appear pro se before the court in all parental | ||
administration proceedings. | ||
SUBCHAPTER B. FILING AND RECORDKEEPING | ||
Sec. 1359.0051. RECORDKEEPING REQUIREMENTS. (a) The | ||
county clerk shall maintain a record book titled "Judge's Parental | ||
Administration Docket" and shall record in the book: | ||
(1) the name of each person with respect to whom a | ||
proceeding is commenced or sought to be commenced; | ||
(2) the name of the parental administrator or of each | ||
applicant for parental administration; | ||
(3) the date each original application for a parental | ||
administration proceeding is filed; | ||
(4) a notation of each order, judgment, decree, and | ||
proceeding that occurs in each parental administration, including | ||
the date it occurs; and | ||
(5) the docket number of each parental administration | ||
as assigned under Subsection (b). | ||
(b) The county clerk shall assign a docket number to each | ||
parental administration in the order a proceeding is commenced. | ||
(c) The county clerk shall maintain a record book titled | ||
"Parental Administration Fee Book" and shall record in the book | ||
each item of cost that accrues to the officers of the court and any | ||
witness fees. 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 party liable for the cost or fee; and | ||
(4) the date the cost or fee is paid. | ||
Sec. 1359.0052. ALTERNATE RECORDKEEPING. Instead of | ||
maintaining the record books described by Section 1359.0051, the | ||
county clerk may maintain the information described by that section | ||
relating to a person's parental administration 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. | ||
Sec. 1359.0053. FILING PROCEDURES. (a) An application for | ||
a parental administration proceeding or a complaint, petition, or | ||
other paper permitted or required by law to be filed with a court in | ||
a parental administration proceeding must be filed with the county | ||
clerk of the appropriate county. | ||
(b) Each paper filed in a parental administration | ||
proceeding must be given the docket number assigned to the parental | ||
administration. | ||
(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. | ||
Sec. 1359.0054. CASE FILES. (a) The county clerk shall | ||
maintain a case file for each person's filed parental | ||
administration proceeding. | ||
(b) Each case file must contain each order, judgment, | ||
decree, and proceeding of the court and any other parental | ||
administration filing with the court, including each: | ||
(1) application for the granting of parental | ||
administration; | ||
(2) citation and notice, whether published or posted, | ||
including the return on the citation or notice; | ||
(3) exhibit; and | ||
(4) report. | ||
Sec. 1359.0055. INDEX. (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. | ||
SUBCHAPTER C. APPOINTMENT OF PARENTAL ADMINISTRATOR | ||
Sec. 1359.0101. PARENTAL ADMINISTRATOR. One or both | ||
parents of a proposed incapacitated adult may in accordance with | ||
this chapter seek appointment as a parental administrator of that | ||
adult with the rights and duties granted under this chapter. | ||
Sec. 1359.0102. APPLICATION. (a) One or both parents of a | ||
proposed incapacitated adult may commence a proceeding for the | ||
appointment of a parental administrator by filing a written | ||
application in a court having jurisdiction and venue. | ||
(b) Subject to Section 1359.0103, the application must be | ||
sworn to by the applicant and must state: | ||
(1) the proposed incapacitated adult's name, sex, date | ||
of birth, and address; | ||
(2) the name, relationship, and address of the | ||
applicant seeking to be appointed as parental administrator; | ||
(3) a description of the nature of the proposed | ||
incapacitated adult's alleged incapacity; | ||
(4) whether the proposed incapacitated adult is | ||
totally or partially without capacity to care for himself or | ||
herself; | ||
(5) the facts requiring the appointment of a parental | ||
administrator; | ||
(6) the nature and description of any existing | ||
guardianship of the proposed incapacitated adult; | ||
(7) whether the proposed incapacitated adult was the | ||
subject of a guardianship proceeding and, if so, the name of the | ||
guardian; | ||
(8) the name of the proposed incapacitated adult's | ||
spouse, if any, and the spouse's address or a statement that the | ||
spouse is deceased; | ||
(9) the names of the proposed incapacitated adult's | ||
other parent if that parent is not an applicant and that parent's | ||
address or a statement that the parent is deceased; | ||
(10) the name and age of each of the proposed | ||
incapacitated adult's siblings, if any, and, for each sibling, the | ||
sibling's address or a statement that the sibling is deceased; and | ||
(11) a statement of facts showing that the proposed | ||
incapacitated adult is a resident of the county in which the | ||
proceeding is brought. | ||
Sec. 1359.0103. CONFIDENTIALITY OF CERTAIN ADDRESSES. An | ||
application filed under Section 1359.0102 or 1359.0552 may omit the | ||
address of a person named in the application if: | ||
(1) the application states that the person is | ||
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. | ||
Sec. 1359.0104. SERVICE AND NOTICE. (a) The citation and | ||
the application filed under this chapter shall be personally served | ||
on the proposed incapacitated adult by a sheriff, a constable, or a | ||
process server certified under Chapter 156, Government Code. | ||
(b) Notice shall be given by certified mail, return receipt | ||
requested, to: | ||
(1) a guardian of the proposed incapacitated adult, if | ||
applicable, unless the guardian is the applicant; and | ||
(2) each other person named under Section | ||
1359.0102(b)(8), (9), or (10). | ||
(c) The applicant shall file with the court: | ||
(1) a copy of any notice required by Subsection (b) and | ||
the proof of delivery of the notice; and | ||
(2) for each notice, an affidavit sworn to by the | ||
applicant or the applicant's attorney stating: | ||
(A) that the notice was mailed as required by | ||
Subsection (b); and | ||
(B) the name of the person to whom the notice was | ||
mailed, if the person's name is not shown on the proof of delivery. | ||
(d) A person who is entitled to receive notice under | ||
Subsection (b) may, by writing filed with the clerk, waive the | ||
receipt of notice either in person or through an attorney ad litem. | ||
Sec. 1359.0105. CHANGE OR RESIGNATION OF RESIDENT AGENT. A | ||
resident agent for a parental administrator may be declared or | ||
changed or may resign in the same manner as a resident agent for a | ||
guardian under Chapter 1057. | ||
Sec. 1359.0106. SUBMISSION OF CRIMINAL HISTORY RECORD | ||
INFORMATION BY PROPOSED PARENTAL ADMINISTRATOR. (a) Not later than | ||
the 10th day before the date of the hearing to appoint a parental | ||
administrator, the applicant shall submit to the clerk a copy of the | ||
person's criminal history record information 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. | ||
(b) Criminal history record information obtained or | ||
provided under this section 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. | ||
(c) The court shall use the information obtained under this | ||
section only in determining whether to appoint the applicant to | ||
serve as a parental administrator. | ||
(d) The county clerk may destroy the criminal history record | ||
information after the information is used for the purposes | ||
authorized by this section. | ||
Sec. 1359.0107. GROUNDS FOR DISQUALIFICATION. A person may | ||
not be appointed or act as a parental administrator if the person: | ||
(1) is a minor or other incapacitated person; | ||
(2) is incapable of properly and prudently managing | ||
and controlling the proposed incapacitated adult because of | ||
inexperience, lack of education, or other good reason; | ||
(3) is found by the court to be unsuitable; | ||
(4) has engaged in conduct that is notoriously bad, | ||
including having been finally convicted of: | ||
(A) any sexual offense, including sexual | ||
assault, aggravated sexual assault, and prohibited sexual conduct; | ||
(B) aggravated assault; | ||
(C) injury to a child, elderly individual, or | ||
individual with a disability; | ||
(D) abandoning or endangering a child; | ||
(E) terroristic threat; or | ||
(F) continuous violence against the family of the | ||
proposed incapacitated adult; | ||
(5) is a party or the child of a parent who is a party | ||
to a suit concerning or affecting the welfare of the proposed | ||
incapacitated adult, unless the court: | ||
(A) determines that the claim of the person who | ||
has applied to be appointed parental administrator is not in | ||
conflict with the claim of the proposed incapacitated adult; or | ||
(B) appoints a guardian ad litem to represent the | ||
interests of the proposed incapacitated adult while the suit is | ||
pending; | ||
(6) is indebted to the proposed incapacitated adult, | ||
unless the person pays the debt before appointment; | ||
(7) asserts a claim adverse to the proposed | ||
incapacitated adult or the proposed incapacitated adult's | ||
property; | ||
(8) is disqualified in a written and signed | ||
declaration made by the proposed incapacitated adult at a time | ||
during which the proposed incapacitated adult had capacity; or | ||
(9) 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 parental administration. | ||
Sec. 1359.0108. ORDER APPOINTING PARENTAL ADMINISTRATOR. | ||
(a) If it is found that the proposed incapacitated adult 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 one or more parental | ||
administrators. The court may, subject to Section 1359.0401, | ||
assign the parental administrator only those powers and duties | ||
necessary to promote and protect the well-being of the | ||
incapacitated adult. | ||
(b) The order appointing a parental administrator must: | ||
(1) specify the specific powers, limitations, and | ||
duties of the parental administrator, which may include: | ||
(A) the right to have physical possession of the | ||
incapacitated adult and to establish the incapacitated adult's | ||
legal domicile; | ||
(B) the duty to provide care, supervision, and | ||
protection for the incapacitated adult; | ||
(C) the duty to provide the incapacitated adult | ||
with clothing, food, medical care, and shelter; | ||
(D) the power to consent to medical, psychiatric, | ||
and surgical treatment of the incapacitated adult; | ||
(E) 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 incapacitated adult as defined by that section be paid directly | ||
to the trust, solely for the purpose of the incapacitated adult's | ||
eligibility for medical assistance under Chapter 32, Human | ||
Resources Code; | ||
(F) the power to sign documents necessary or | ||
appropriate to facilitate employment of the incapacitated adult; | ||
(G) the power to receive funds for the | ||
incapacitated adult from a government source; | ||
(H) the power to obtain insurance and communicate | ||
with insurance issuers on behalf of the incapacitated adult; | ||
(I) the power to file suit on behalf of the | ||
incapacitated adult; and | ||
(J) other powers as determined necessary by the | ||
court; | ||
(2) specify that the specific powers, limitations, and | ||
duties of the parental administrator are subordinate to the rights | ||
and powers of the incapacitated adult; | ||
(3) state the name of each parent appointed; | ||
(4) state the name of the incapacitated adult; and | ||
(5) if in response to an application filed under | ||
Section 1202.004, terminate the existing guardianship of the | ||
incapacitated adult. | ||
(c) If the order appointing a parental administrator under | ||
this section includes the right of the parental administrator to | ||
have physical possession of the incapacitated adult or to establish | ||
the incapacitated adult's legal domicile, the order must also | ||
contain the following prominently displayed statement in boldfaced | ||
type, in capital letters, or underlined: | ||
"NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY USE | ||
REASONABLE EFFORTS TO ENFORCE THE RIGHT OF A PARENTAL ADMINISTRATOR | ||
OF AN INCAPACITATED ADULT TO HAVE PHYSICAL POSSESSION OF THE | ||
INCAPACITATED ADULT OR TO ESTABLISH THE INCAPACITATED ADULT'S LEGAL | ||
DOMICILE AS SPECIFIED IN THIS ORDER UNLESS OBJECTED TO BY THE | ||
INCAPACITATED ADULT. A PEACE OFFICER WHO RELIES ON THE TERMS OF A | ||
COURT ORDER AND THE OFFICER'S AGENCY ARE ENTITLED TO THE APPLICABLE | ||
IMMUNITY AGAINST ANY CIVIL OR OTHER CLAIM REGARDING THE OFFICER'S | ||
GOOD FAITH ACTS PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN | ||
ENFORCING THE TERMS OF THIS ORDER THAT RELATE TO THE | ||
ABOVE-MENTIONED RIGHTS OF THE COURT-APPOINTED PARENTAL | ||
ADMINISTRATOR OF THE INCAPACITATED ADULT. ANY PERSON WHO KNOWINGLY | ||
PRESENTS FOR ENFORCEMENT AN ORDER THAT IS INVALID OR NO LONGER IN | ||
EFFECT COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY CONFINEMENT IN | ||
JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS $10,000." | ||
(d) The order appointing the parental administrator may | ||
not: | ||
(1) remove the rights of the incapacitated adult; or | ||
(2) grant a power related to an incapacitated adult's | ||
right to manage his or her property or financial affairs beyond the | ||
powers specifically authorized under Subsection (b). | ||
Sec. 1359.0109. POWERS AND DUTIES OF PARENTAL ADMINISTRATOR | ||
APPOINTED AS NECESSARY FOR INCAPACITATED ADULT TO RECEIVE | ||
GOVERNMENT FUNDS. (a) A parental administrator 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 for the | ||
support, maintenance, or education of the incapacitated adult or | ||
the incapacitated adult's dependents. | ||
(b) Expenditures under Subsection (a)(2) for the support, | ||
maintenance, or education of the incapacitated adult or the | ||
incapacitated adult's dependents may not exceed $12,000 during any | ||
12-month period without the court's approval. | ||
Sec. 1359.0110. AUTHORITY AND TREATMENT OF CERTAIN PARENTAL | ||
ADMINISTRATORS AS GUARDIAN UNDER LAW. If the order appointing a | ||
parental administrator under Section 1359.0108 includes the right | ||
of the parental administrator to have physical possession of the | ||
incapacitated adult or to establish the incapacitated adult's legal | ||
domicile, to the extent not in conflict with this chapter, | ||
including Section 1359.0401, a parental administrator has the same | ||
authority and is entitled to the same treatment respecting the | ||
incapacitated adult as a guardian of the person respecting a ward | ||
under law. | ||
Sec. 1359.0111. DISMISSAL OF APPLICATION. If it is found | ||
that a proposed incapacitated 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 parental administration. | ||
SUBCHAPTER D. ATTORNEYS AD LITEM AND INTERPRETERS | ||
Sec. 1359.0151. APPOINTMENT OF ATTORNEY AD LITEM IN | ||
PROCEEDING FOR APPOINTMENT OF PARENTAL ADMINISTRATOR. (a) In a | ||
proceeding for the appointment of a parental administrator, the | ||
court shall appoint an attorney ad litem to represent the proposed | ||
incapacitated adult's interests. | ||
(b) The attorney ad litem must have the certification | ||
required by Section 1054.201. | ||
(c) Unless the court determines that the continued | ||
appointment of an attorney ad litem appointed under this subchapter | ||
is in the proposed incapacitated adult's best interests, the | ||
attorney's term of appointment expires, without a court order, on | ||
the date the court appoints a parental administrator or denies the | ||
application for appointment of a parental administrator. | ||
Sec. 1359.0152. ACCESS TO RECORDS. An attorney ad litem | ||
appointed under this subchapter: | ||
(1) shall be provided copies of all of the current | ||
records in the parental administration case; and | ||
(2) may have access to all of the proposed | ||
incapacitated adult's relevant medical, psychological, and | ||
intellectual testing records. | ||
Sec. 1359.0153. DUTIES. (a) An attorney ad litem appointed | ||
under this subchapter shall interview the proposed incapacitated | ||
adult within a reasonable time before the hearing in the proceeding | ||
for the appointment of a parental administrator. To the greatest | ||
extent possible, the attorney shall discuss with the proposed | ||
incapacitated adult: | ||
(1) the law and facts of the case; | ||
(2) the proposed incapacitated adult's legal options | ||
regarding disposition of the case; | ||
(3) the grounds on which parental administration is | ||
sought; and | ||
(4) whether other less restrictive alternatives to | ||
guardianship, other than parental administration, would meet the | ||
needs of the proposed incapacitated adult and avoid the need for the | ||
appointment of a parental administrator. | ||
(b) Before the hearing, the attorney ad litem shall review: | ||
(1) the application for parental administration; | ||
(2) certificates of current physical, medical, and | ||
intellectual examinations; and | ||
(3) all of the proposed incapacitated adult's relevant | ||
medical, psychological, and intellectual testing records. | ||
(c) Before the hearing, the attorney ad litem shall discuss | ||
with the proposed incapacitated adult the attorney ad litem's | ||
opinion regarding: | ||
(1) whether a parental administration is necessary for | ||
the proposed incapacitated adult; and | ||
(2) if a parental administration is necessary, the | ||
specific powers or duties of the parental administration that | ||
should be limited if the proposed incapacitated adult receives | ||
supports and services. | ||
Sec. 1359.0154. COMPENSATION AND EXPENSES. An attorney ad | ||
litem appointed under this subchapter is entitled to reasonable | ||
compensation for services and expenses provided in the amount set | ||
by the court, to be taxed as costs in the proceeding. | ||
Sec. 1359.0155. APPOINTMENT OF INTERPRETER. At the time | ||
the court appoints the attorney ad litem under this subchapter, the | ||
court shall appoint a language interpreter or sign interpreter if | ||
necessary to ensure effective communication between the proposed | ||
incapacitated adult and the attorney ad litem. | ||
Sec. 1359.0156. APPOINTMENT OF EXISTING AD LITEM. In the | ||
interest of judicial economy, the court may appoint as an attorney | ||
ad litem under this subchapter a person who is serving as an ad | ||
litem for the proposed incapacitated adult's benefit in any other | ||
proceeding. | ||
SUBCHAPTER E. GUARDIANS AD LITEM | ||
Sec. 1359.0201. APPOINTMENT OF GUARDIAN AD LITEM IN | ||
PARENTAL ADMINISTRATION PROCEEDING. (a) The judge may appoint a | ||
guardian ad litem to represent the interests of a proposed | ||
incapacitated adult in a parental administration proceeding. | ||
(b) A guardian ad litem must have the certification required | ||
by Section 1054.201. | ||
Sec. 1359.0202. APPOINTMENT OF EXISTING AD LITEM. In the | ||
interest of judicial economy, the court may appoint as guardian ad | ||
litem under this subchapter a person who is serving as an ad litem | ||
for the proposed incapacitated adult's benefit in any other | ||
proceeding. | ||
Sec. 1359.0203. TERM OF CERTAIN APPOINTMENTS. Unless the | ||
court determines that the continued appointment of a guardian ad | ||
litem appointed under this subchapter is in the proposed | ||
incapacitated adult's best interests, the guardian ad litem's term | ||
of appointment expires, without a court order, on the date the court | ||
appoints a parental administrator or denies the application for | ||
appointment of a parental administrator. | ||
Sec. 1359.0204. DUTIES. (a) A guardian ad litem appointed | ||
under this subchapter is an officer of the court. | ||
(b) A guardian ad litem shall protect the proposed | ||
incapacitated adult 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. | ||
(c) The guardian ad litem shall: | ||
(1) investigate whether a parental administration is | ||
necessary for the proposed incapacitated adult; and | ||
(2) evaluate alternatives and supports and services | ||
available to the proposed incapacitated adult that would avoid the | ||
need for appointment of a parental administrator. | ||
(d) The information gathered by the guardian ad litem under | ||
Subsection (c) is subject to examination by the court. | ||
Sec. 1359.0205. COMPENSATION AND EXPENSES. (a) A guardian | ||
ad litem appointed under this subchapter is entitled to reasonable | ||
compensation for services and expenses 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 this subchapter are costs of the litigation proceeding that | ||
made the appointment necessary. | ||
Sec. 1359.0206. IMMUNITY. (a) Subject to Subsection (b), a | ||
guardian ad litem appointed under this subchapter to represent the | ||
interests of a proposed incapacitated adult 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. | ||
SUBCHAPTER F. COURT INVESTIGATION | ||
Sec. 1359.0251. INVESTIGATION OF PARENTAL ADMINISTRATION | ||
APPLICATION. On the filing of an application for parental | ||
administration under this chapter, a court investigator shall | ||
investigate the circumstances alleged in the application to | ||
determine whether any other less restrictive alternative to | ||
guardianship other than parental administration is appropriate. | ||
Sec. 1359.0252. GENERAL DUTIES OF COURT INVESTIGATOR. A | ||
court investigator shall: | ||
(1) investigate a complaint received from any person | ||
about a parental administration and report to the judge, if | ||
necessary; and | ||
(2) perform other duties as assigned by the judge or | ||
required by this title. | ||
Sec. 1359.0253. INVESTIGATION REPORT. (a) A court | ||
investigator shall file with the court a report containing the | ||
court investigator's findings and conclusions after conducting an | ||
investigation under this subchapter. | ||
(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. | ||
Sec. 1359.0254. EFFECT OF SUBCHAPTER ON OTHER LAW. Nothing | ||
in this subchapter supersedes any duty or obligation of another to | ||
report or investigate abuse or neglect under any statute of this | ||
state. | ||
SUBCHAPTER G. HEARING; JURY TRIAL | ||
Sec. 1359.0301. HEARING. (a) At a hearing for the | ||
appointment of a parental administrator, the court shall inquire | ||
into: | ||
(1) the ability of the proposed 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; and | ||
(2) whether the applicant is the parent of the | ||
proposed incapacitated adult. | ||
(b) A proposed incapacitated adult 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 incapacitated adult. | ||
Sec. 1359.0302. JURY TRIAL. A proposed incapacitated adult | ||
is entitled to a jury trial on timely request. | ||
Sec. 1359.0303. USE OF RECORDS. Current medical, | ||
psychological, and intellectual testing records are a sufficient | ||
basis for an appointment of a parental administrator, but the | ||
findings and recommendations contained in those records are not | ||
binding on the court. | ||
SUBCHAPTER H. DETERMINATION OF NECESSITY OF PARENTAL | ||
ADMINISTRATION; FINDINGS AND PROOF | ||
Sec. 1359.0351. FINDINGS AND PROOF REQUIRED. (a) Before | ||
appointing a parental administrator for a proposed incapacitated | ||
adult, the court must find by a preponderance of the evidence that: | ||
(1) the proposed incapacitated adult is an | ||
incapacitated person as defined by Section 22.016(2); | ||
(2) the person to be appointed parental administrator | ||
is not disqualified from acting and is suitable to act as parental | ||
administrator; | ||
(3) a necessity exists for the parental | ||
administration; | ||
(4) it is in the proposed incapacitated adult's best | ||
interests to have the court appoint a parental administrator; | ||
(5) other less restrictive alternatives to | ||
guardianship, other than parental administration, that would avoid | ||
the need for the appointment of a parental administrator have been | ||
considered and determined not to be feasible; | ||
(6) supports and services available to the proposed | ||
incapacitated adult that would avoid the need for the appointment | ||
of a parental administrator have been considered and determined not | ||
to be feasible; | ||
(7) it is in the best interests of the incapacitated | ||
adult to have more than one parental administrator if more than one | ||
parent has made application; and | ||
(8) the court has venue of the case. | ||
(b) The court may not grant an application to create a | ||
parental administration unless the applicant proves each element | ||
required by this section. | ||
Sec. 1359.0352. DETERMINATION OF INCAPACITY: PHYSICIAN | ||
EXAMINATION. (a) The court may not grant an application for the | ||
appointment of a parental administrator for a proposed | ||
incapacitated adult unless the applicant presents to the court: | ||
(1) a written letter or certificate from a physician | ||
licensed in this state that: | ||
(A) is dated not earlier than the 120th day | ||
before the date the application is filed; | ||
(B) is based on an examination the physician | ||
performed not earlier than the 120th day before the date the | ||
application is filed; and | ||
(C) complies with Subsection (b); or | ||
(2) a written letter or certificate that: | ||
(A) shows that not earlier than 24 months before | ||
the date of a hearing on the application: | ||
(i) the proposed incapacitated adult has | ||
been examined by a physician or psychologist licensed in this state | ||
or certified by the Health and Human Services Commission 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 the physician's or psychologist's | ||
written findings and recommendations include a determination of an | ||
intellectual disability; or | ||
(ii) a physician or psychologist licensed | ||
in this state or certified by the Health and Human Services | ||
Commission to perform examinations described by Subparagraph (i) | ||
updated or endorsed in writing a prior determination of an | ||
intellectual disability for the proposed incapacitated adult made | ||
by a physician or psychologist licensed in this state or certified | ||
by the commission; and | ||
(B) complies with Subsection (b). | ||
(b) A letter or certificate under Subsection (a)(1) or (2) | ||
must: | ||
(1) describe the nature, degree, and severity of the | ||
proposed incapacitated adult's incapacity, including any | ||
functional deficits regarding the proposed incapacitated adult's | ||
ability to consent to medical, dental, psychological, or | ||
psychiatric treatment; | ||
(2) provide an evaluation of the proposed | ||
incapacitated adult's physical condition and mental functioning | ||
and summarize the proposed incapacitated adult's medical history if | ||
reasonably available; | ||
(3) state how or in what manner the proposed | ||
incapacitated adult's ability to make or communicate responsible | ||
decisions concerning himself or herself is affected by the proposed | ||
incapacitated adult's physical or mental health, including the | ||
proposed incapacitated adult's ability to: | ||
(A) understand or communicate; | ||
(B) recognize familiar objects and individuals; | ||
(C) solve problems; | ||
(D) reason logically; and | ||
(E) administer to daily life activities with and | ||
without supports and services; | ||
(4) state whether any current medication affects the | ||
proposed incapacitated adult's demeanor or the proposed | ||
incapacitated adult's ability to participate fully in a court | ||
proceeding; | ||
(5) if applicable, describe the precise physical and | ||
mental conditions underlying a diagnosis of an intellectual | ||
disability; | ||
(6) state whether a parental administration is | ||
necessary for the proposed incapacitated adult; and | ||
(7) include any other information required by the | ||
court. | ||
(c) If the court determines it is necessary, the court may | ||
appoint a physician to examine the proposed incapacitated adult. | ||
The court must make a determination with respect to the necessity | ||
for a physician's examination of the proposed incapacitated adult | ||
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 incapacitated adult and the proposed incapacitated | ||
adult's attorney ad litem written notice specifying the purpose and | ||
the date and time of the hearing. | ||
(d) A physician who examines the proposed incapacitated | ||
adult for purposes of Subsection (a)(1) shall file with the court | ||
and provide to the attorney ad litem appointed to represent the | ||
proposed incapacitated adult a written letter or certificate from | ||
the physician that complies with the requirements of Subsections | ||
(a)(1) and (b). | ||
SUBCHAPTER I. RIGHTS, POWERS, AND DUTIES UNDER PARENTAL | ||
ADMINISTRATION | ||
Sec. 1359.0401. RIGHTS RETAINED BY INCAPACITATED ADULT. | ||
(a) An incapacitated adult for whom a parental administrator is | ||
appointed retains all legal and civil rights and powers. | ||
(b) The powers, limitations, and duties of a parental | ||
administrator appointed under this chapter are subordinate to the | ||
rights and powers of the incapacitated adult. | ||
Sec. 1359.0402. FIDUCIARY DUTY. A parental administrator | ||
owes a fiduciary duty to the incapacitated adult. | ||
Sec. 1359.0403. COMMITMENT OF INCAPACITATED ADULT. (a) | ||
Except as provided by Subsection (b), a parental administrator may | ||
not voluntarily admit an incapacitated adult to a public or private | ||
inpatient psychiatric facility operated by the Health and Human | ||
Services Commission for care and treatment or to a residential | ||
facility operated by the commission for care and treatment. If care | ||
and treatment in a psychiatric or residential facility is | ||
necessary, the incapacitated adult or the parental administrator | ||
may: | ||
(1) apply for services under Section 593.027 or | ||
593.028, Health and Safety Code; | ||
(2) apply to a court to commit the incapacitated adult | ||
under Subtitle C or D, Title 7, Health and Safety Code, or Chapter | ||
462, Health and Safety Code; or | ||
(3) transport the incapacitated adult 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 parental administrator may voluntarily admit an | ||
incapacitated adult to a residential care facility for emergency | ||
care or respite care under Section 593.027 or 593.028, Health and | ||
Safety Code, if the order appointing the parental administrator | ||
grants the parental administrator the duty to provide the | ||
incapacitated adult with medical care. | ||
Sec. 1359.0404. ADMINISTRATION OF MEDICATION. (a) In this | ||
section, "psychoactive medication" has the meaning assigned by | ||
Section 574.101, Health and Safety Code. | ||
(b) A parental administrator of an incapacitated adult 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 | ||
incapacitated adult's treating physician regardless of the | ||
incapacitated adult's expressed preferences regarding treatment | ||
with psychoactive medication, if the order appointing the parental | ||
administrator grants the parental administrator the duty to provide | ||
the incapacitated adult with medical care. | ||
Sec. 1359.0405. APPLICATION BY CERTAIN RELATIVES FOR ACCESS | ||
TO INCAPACITATED ADULT; HEARING AND COURT ORDER. A relative of an | ||
incapacitated adult may file an application with the court | ||
requesting access to the incapacitated adult, including the | ||
opportunity to establish visitation or communication with the | ||
incapacitated adult in the same manner as a ward's relative may file | ||
such an application under Section 1151.055. The court shall act on | ||
the application in the same manner as the court is required to act | ||
on the application for a ward under that section. | ||
SUBCHAPTER J. REPORTING | ||
Sec. 1359.0451. REPORT OF PARENTAL ADMINISTRATOR. At any | ||
time after a parental administrator is appointed, the court, on its | ||
own motion or on the motion of a person interested in the welfare of | ||
the incapacitated adult and for good cause shown, may order the | ||
parental administrator to submit to the court a sworn report on the | ||
condition of the incapacitated adult. The report must include the | ||
same information for the incapacitated adult as is required by | ||
Section 1163.101 for a ward. | ||
SUBCHAPTER K. INVESTIGATION OF ALLEGED ABUSE, NEGLECT, OR | ||
EXPLOITATION CONCERNING INCAPACITATED ADULT | ||
Sec. 1359.0501. INTERFERENCE WITH INVESTIGATION OR | ||
SERVICES PROHIBITED. A parental administrator may not interfere | ||
with: | ||
(1) an investigation by the Department of Family and | ||
Protective Services, another state agency, or a law enforcement | ||
agency of alleged abuse, neglect, or exploitation of the | ||
incapacitated adult; or | ||
(2) the provision of protective services by the | ||
Department of Family and Protective Services or another state | ||
agency to the incapacitated adult. | ||
Sec. 1359.0502. REPORT TO COURT OF INVESTIGATION OF ALLEGED | ||
ABUSE, NEGLECT, OR EXPLOITATION. Subject to rules adopted under | ||
Section 48.101, Human Resources Code, the Department of Family and | ||
Protective Services or another state agency that conducts an | ||
investigation of alleged abuse, neglect, or exploitation of an | ||
incapacitated adult for whom a parental administrator is appointed | ||
shall report the results of the investigation to the court with | ||
jurisdiction of the parental administration. | ||
SUBCHAPTER L. RESIGNATION, REMOVAL, OR DEATH OF PARENTAL | ||
ADMINISTRATOR; CONVERSION TO GUARDIANSHIP | ||
Sec. 1359.0551. GROUNDS FOR REMOVAL OF PARENTAL | ||
ADMINISTRATOR. A court may remove a parental administrator if the | ||
parental administrator: | ||
(1) fails to comply with a court order for a report | ||
under Section 1359.0451; | ||
(2) is proven to have been guilty of gross misconduct | ||
or gross mismanagement in the performance of duties as parental | ||
administrator; | ||
(3) is disqualified to act as a parental administrator | ||
under Section 1359.0107; | ||
(4) is no longer necessary because the court finds | ||
that the incapacitated adult is no longer incapacitated; | ||
(5) is convicted of an offense and subsequently | ||
confined or imprisoned; or | ||
(6) for any other reason becomes unable to properly | ||
perform the parental administrator's duties. | ||
Sec. 1359.0552. DETERMINATION REGARDING PARENTAL | ||
ADMINISTRATOR'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 parental administrator appointed by | ||
the court under this chapter is an incapacitated person for | ||
purposes of Sections 1359.0551(3) and 1359.0107(1). | ||
(b) Subject to Section 1359.0103, an application filed | ||
under this section must be sworn to by the applicant and state: | ||
(1) the incapacitated adult's name, sex, date of | ||
birth, and address; | ||
(2) the parental administrator's name, sex, date of | ||
birth, and address; | ||
(3) the nature and degree of the parental | ||
administrator's alleged incapacity; | ||
(4) the facts requiring an investigation into the | ||
parental administrator's capacity; and | ||
(5) the applicant's interest in the incapacitated | ||
adult. | ||
(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 parental administrator, 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 parental | ||
administrator is an incapacitated person. The court's order | ||
appointing the guardian ad litem or court investigator must include | ||
a statement that the parental administrator 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 parental administrator 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 parental | ||
administrator'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 | ||
parental administrator. The court must make its determination with | ||
respect to the necessity for a physician's examination of the | ||
parental administrator 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 parental administrator written notice specifying | ||
the purpose, date, and time of the hearing. | ||
(g) A physician who examines the parental administrator | ||
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 parental administrator's incapacity, if any, | ||
including any functional deficits regarding the parental | ||
administrator's ability to perform the duties the parental | ||
administrator owes to the incapacitated adult. 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 under Sections 1359.0551(3) and | ||
1359.0107(1). | ||
(h) Notwithstanding Section 1359.0603 and except as | ||
provided by Subsection (i), 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: | ||
(1) the parental administrator is determined not to be | ||
an incapacitated person; and | ||
(2) the incapacitated adult has no guardianship estate | ||
or management trust or the assets of the estate or management trust, | ||
as appropriate, are insufficient to pay the court costs. | ||
(i) If the applicant ordered to pay court costs under | ||
Subsection (h) files, on the applicant's own behalf, an affidavit | ||
of inability to pay court costs under Rule 145, Texas Rules of Civil | ||
Procedure, that shows the applicant is unable to afford the costs, | ||
the court shall order costs be paid out of the county treasury. | ||
Sec. 1359.0553. PROCEDURE FOR REMOVAL OF PARENTAL | ||
ADMINISTRATOR OR CONVERSION OF PARENTAL ADMINISTRATION TO | ||
GUARDIANSHIP. (a) The court on the court's own motion or on the | ||
application of any person may initiate a proceeding to: | ||
(1) subject to Subsection (b), remove a parental | ||
administrator on proof of a ground for removal described by Section | ||
1359.0551; or | ||
(2) subject to Subsection (d), convert a parental | ||
administration for an incapacitated adult to a guardianship. | ||
(b) In a proceeding for the removal of a parental | ||
administrator initiated under Subsection (a)(1), the court shall: | ||
(1) have the parental administrator cited by personal | ||
service to appear before the court; and | ||
(2) appoint to represent the proposed incapacitated | ||
adult's interests an attorney ad litem who has the certification | ||
required by Section 1054.201. | ||
(c) A citation under this section must state: | ||
(1) the time and place of a hearing on the matter at | ||
which the parental administrator is to appear; and | ||
(2) the alleged ground for removal of the parental | ||
administrator. | ||
(d) In a proceeding for the conversion of a parental | ||
administration to a guardianship under Subsection (a)(2), | ||
notwithstanding any other law, all requirements necessary to create | ||
a guardianship are required to convert a parental administration to | ||
a guardianship, except: | ||
(1) a procedural requirement the court determines was | ||
fulfilled when the parental administration was initially | ||
established; and | ||
(2) a requirement for a written letter or certificate | ||
from a physician licensed in this state. | ||
(e) Notwithstanding the discretion provided by Subsection | ||
(d), the court shall: | ||
(1) provide notice of the conversion of a parental | ||
administration to a guardianship in the manner required by Chapter | ||
1051; and | ||
(2) appoint to represent the proposed incapacitated | ||
adult's interests an attorney ad litem who has the certification | ||
required by Section 1054.201. | ||
(f) The authority to appear pro se in a parental | ||
administration proceeding does not extend to a proceeding to | ||
convert a parental administration to a guardianship. | ||
Sec. 1359.0554. INFORMAL REQUEST FOR ORDER BY INCAPACITATED | ||
ADULT; INVESTIGATION AND REPORT. (a) Subject to Subsection (e), an | ||
incapacitated adult may request by informal letter to the court an | ||
order under Section 1359.0551(4) finding that the incapacitated | ||
adult is no longer incapacitated. 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 incapacitated adult's circumstances, | ||
including any circumstances alleged in the letter, to determine | ||
whether: | ||
(1) the incapacitated adult is no longer | ||
incapacitated; or | ||
(2) a modification of the parental administration is | ||
necessary. | ||
(c) The guardian ad litem or court investigator shall file | ||
with the court a report of the investigation's findings and | ||
conclusions. If the guardian ad litem or court investigator | ||
determines that it is in the best interests of the incapacitated | ||
adult to terminate or modify the parental administration, the | ||
guardian ad litem or court investigator shall file an application | ||
on the incapacitated adult'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 1359.0553. | ||
(e) A person may not reapply for termination or modification | ||
of the parental administration 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. | ||
Sec. 1359.0555. TERMINATION OF PARENTAL ADMINISTRATOR'S | ||
RIGHTS AND POWERS ON REMOVAL OR CONVERSION TO GUARDIANSHIP. The | ||
rights and powers of a parental administrator terminate when a | ||
court orders the parental administrator removed or a parental | ||
administration converted into a guardianship. | ||
Sec. 1359.0556. APPOINTMENT BECAUSE OF RESIGNATION, | ||
REMOVAL, OR DEATH. (a) Except as provided by Subsection (b), if a | ||
parental administrator resigns, is removed, or dies, the court may | ||
appoint a successor parental administrator on application and on | ||
service of notice as directed by the court. | ||
(b) The court may appoint a successor parental | ||
administrator under this section without citation or notice if the | ||
court finds that a necessity exists for the immediate appointment. | ||
Subject to an order of the court, a successor parental | ||
administrator has the same rights and powers previously granted to | ||
the former parental administrator. | ||
SUBCHAPTER M. COMPENSATION, EXPENSES, AND COURT COSTS | ||
Sec. 1359.0601. COMPENSATION FOR CERTAIN PARENTAL | ||
ADMINISTRATORS. The court may authorize compensation for a | ||
parental administrator from available funds of the incapacitated | ||
adult'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 incapacitated adult's gross income. For purposes of this | ||
section, "gross income" does not include United States Department | ||
of Veterans Affairs or social security benefits received by an | ||
incapacitated adult. | ||
Sec. 1359.0602. EXPENSES. A parental administrator is | ||
entitled to reimbursement of expenses to the same extent as a | ||
guardian is entitled to reimbursement of expenses under Subchapter | ||
C, Chapter 1155. | ||
Sec. 1359.0603. COSTS IN PARENTAL ADMINISTRATION | ||
PROCEEDING GENERALLY. (a) In a parental administration | ||
proceeding, the court costs of the proceeding, including the costs | ||
described by Subsection (b), shall, except as provided by | ||
Subsection (c), be paid as follows, and the court shall issue the | ||
judgment accordingly: | ||
(1) out of the incapacitated adult's estate, if any; | ||
(2) out of the management trust, if a management trust | ||
has been created for the benefit of the incapacitated adult under | ||
Chapter 1301 and the court determines it is in the incapacitated | ||
adult's best interests; | ||
(3) by the party to the proceeding who incurred the | ||
costs, unless that party filed, on the party's own behalf, an | ||
affidavit of inability to pay the costs under Rule 145, Texas Rules | ||
of Civil Procedure, that shows the party is unable to afford the | ||
costs, if: | ||
(A) the incapacitated adult has no estate or no | ||
management trust has been created for the incapacitated adult's | ||
benefit; or | ||
(B) the assets of the incapacitated adult's | ||
estate or management trust, as appropriate, are insufficient to pay | ||
the costs; or | ||
(4) out of the county treasury if: | ||
(A) the incapacitated adult has no estate or | ||
management trust or the assets of the incapacitated adult's estate | ||
or management trust, as appropriate, are insufficient to pay the | ||
costs; and | ||
(B) the party to the proceeding who incurred the | ||
costs filed, on the party's own behalf, an affidavit of inability to | ||
pay the costs under Rule 145, Texas Rules of Civil Procedure, that | ||
shows the party is unable to afford the costs. | ||
(b) In a parental administration proceeding, the cost of any | ||
guardians ad litem, attorneys ad litem, health professionals, and | ||
interpreters appointed under this chapter shall be set in an amount | ||
the court considers equitable and just. | ||
(c) Notwithstanding any other law requiring the payment of | ||
court costs in a parental administration proceeding, the following | ||
are not required to pay court costs on the filing of or during a | ||
parental administration proceeding: | ||
(1) an attorney ad litem; | ||
(2) a guardian ad litem; | ||
(3) a person or entity who files an affidavit of | ||
inability to pay the costs under Rule 145, Texas Rules of Civil | ||
Procedure, that shows the person or entity is unable to afford the | ||
costs; and | ||
(4) a governmental entity. | ||
(d) For purposes of Subsections (a) and (c), a person or | ||
entity who files an affidavit of inability to pay the costs under | ||
Rule 145, Texas Rules of Civil Procedure, is unable to afford the | ||
costs if the affidavit shows that the person or entity: | ||
(1) is currently receiving assistance or other | ||
benefits from a government program under which assistance or other | ||
benefits are provided to individuals on a means-tested basis; | ||
(2) is eligible for and currently receiving free legal | ||
services in the parental administration proceeding through the | ||
following: | ||
(A) a legal services provider funded partly by | ||
the Texas Access to Justice Foundation; | ||
(B) a legal services provider funded partly by | ||
the Legal Services Corporation; or | ||
(C) a nonprofit corporation formed under the laws | ||
of this state that provides legal services to low-income | ||
individuals whose household income is at or below 200 percent of the | ||
federal poverty guidelines as determined by the United States | ||
Department of Health and Human Services; | ||
(3) applied and was eligible for free legal services | ||
through a person or entity listed in Subdivision (2) but was | ||
declined representation; or | ||
(4) has a household income that is at or below 200 | ||
percent of the federal poverty guidelines as determined by the | ||
United States Department of Health and Human Services and has money | ||
or other available assets, excluding any homestead and exempt | ||
property under Chapter 42, Property Code, in an amount that does not | ||
exceed $2,000. | ||
(e) If an affidavit of inability to pay costs filed under | ||
Rule 145, Texas Rules of Civil Procedure, is contested, the court, | ||
at a hearing, shall review the contents of and attachments to the | ||
affidavit and any other evidence offered at the hearing and make a | ||
determination as to whether the person or entity is unable to afford | ||
the costs. If the court finds that the person or entity is able to | ||
afford the costs, the person or entity must pay the court costs. | ||
Except with leave of court, no further action in the parental | ||
administration proceeding may be taken by a person or entity found | ||
able to afford costs until payment of those costs is made. | ||
(f) The costs attributable to the services of a person | ||
described by Subsection (b) shall be paid under this section at any | ||
time after the commencement of the proceeding as ordered by the | ||
court. | ||
(g) If the court finds that a party in a parental | ||
administration proceeding acted in bad faith or without just cause | ||
in prosecuting or objecting to an application in the proceeding, | ||
the court may order the party to pay all or part of the costs of the | ||
proceeding. | ||
(h) If the incapacitated adult has an estate or a management | ||
trust under Chapter 1301 is created, a person or entity who paid any | ||
costs on the filing of or during the proceeding is entitled to be | ||
reimbursed out of assets of the incapacitated adult's estate or | ||
management trust, as appropriate, for the costs if: | ||
(1) the assets of the estate or trust, as appropriate, | ||
are sufficient to cover the reimbursement of the costs; and | ||
(2) the person or entity has not been ordered by the | ||
court to pay the costs as all or part of the payment of court costs | ||
under Subsection (g). | ||
(i) If at any time after a parental administration or | ||
management trust under Chapter 1301 is created there are sufficient | ||
assets of the estate or trust, as appropriate, to pay the amount of | ||
any of the costs exempt from payment under Subsection (c), the court | ||
shall require the parental administrator to pay out of the parental | ||
administration or management trust, as appropriate, to the court | ||
clerk for deposit in the county treasury the amount of any of those | ||
costs. | ||
(j) To the extent that this section conflicts with the Texas | ||
Rules of Civil Procedure or other rules, this section controls. | ||
ARTICLE 2. CONFORMING AMENDMENTS | ||
SECTION 2.01. Article 14.055, Code of Criminal Procedure, | ||
is amended to read as follows: | ||
Art. 14.055. DUTY OF OFFICER TO NOTIFY PROBATE COURT. (a) | ||
In this article: | ||
(1) "Guardian" has the meaning assigned by Section | ||
1002.012, Estates Code. | ||
(2) "Incapacitated adult" has the meaning assigned by | ||
Section 1359.0001, Estates Code. | ||
(3) "Parental administrator" has the meaning assigned | ||
by Section 1359.0001, Estates Code. | ||
(4) "Ward"[ |
||
Section 22.033, Estates Code. | ||
(b) As soon as practicable, but not later than the first | ||
working day after the date a peace officer detains or arrests a | ||
person who is: | ||
(1) a ward, the peace officer or the person having | ||
custody of the ward shall notify the ward's guardian and the court | ||
having jurisdiction over the ward's guardianship of the ward's | ||
detention or arrest; or | ||
(2) an incapacitated adult for whom a parental | ||
administrator has been appointed, the peace officer or the person | ||
having custody of the incapacitated adult shall notify the | ||
incapacitated adult's parental administrator and the court having | ||
jurisdiction over the incapacitated adult's parental | ||
administration of the incapacitated adult's detention or arrest. | ||
SECTION 2.02. Article 15.171, Code of Criminal Procedure, | ||
is amended to read as follows: | ||
Art. 15.171. DUTY OF OFFICER TO NOTIFY PROBATE COURT. (a) | ||
In this article: | ||
(1) "Guardian" has the meaning assigned by Section | ||
1002.012, Estates Code. | ||
(2) "Incapacitated adult" has the meaning assigned by | ||
Section 1359.0001, Estates Code. | ||
(3) "Parental administrator" has the meaning assigned | ||
by Section 1359.0001, Estates Code. | ||
(4) "Ward"[ |
||
Section 22.033, Estates Code. | ||
(b) As soon as practicable, but not later than the first | ||
working day after the date a peace officer detains or arrests a | ||
person who is: | ||
(1) a ward, the peace officer or the person having | ||
custody of the ward shall notify the ward's guardian and the court | ||
having jurisdiction over the ward's guardianship of the ward's | ||
detention or arrest; or | ||
(2) an incapacitated adult for whom a parental | ||
administrator has been appointed, the peace officer or the person | ||
having custody of the incapacitated adult shall notify the | ||
incapacitated adult's parental administrator and the court having | ||
jurisdiction over the incapacitated adult's parental | ||
administration of the incapacitated adult's detention or arrest. | ||
SECTION 2.03. Article 26.041, Code of Criminal Procedure, | ||
is amended to read as follows: | ||
Art. 26.041. PROCEDURES RELATED TO GUARDIANSHIPS AND | ||
PARENTAL ADMINISTRATIONS. (a) In this article: | ||
(1) "Guardian" has the meaning assigned by Section | ||
1002.012, Estates Code. | ||
(2) "Incapacitated adult" has the meaning assigned by | ||
Section 1359.0001, Estates Code. | ||
(3) "Letters of guardianship" means a certificate | ||
issued under Section 1106.001(a), Estates Code. | ||
(4) "Parental administrator" has the meaning assigned | ||
by Section 1359.0001, Estates Code. | ||
(b) A guardian who provides a court with letters of | ||
guardianship or a parental administrator who provides a court with | ||
an order of parental administration for a defendant may: | ||
(1) provide information relevant to the determination | ||
of indigence [ |
||
(2) request that counsel be appointed in accordance | ||
with this chapter. | ||
SECTION 2.04. The heading to Chapter 155, Government Code, | ||
is amended to read as follows: | ||
CHAPTER 155. DUTIES RESPECTING GUARDIANSHIP AND PARENTAL | ||
ADMINISTRATION | ||
SECTION 2.05. Section 155.001, Government Code, is amended | ||
by adding Subdivisions (4-a) and (5-a) to read as follows: | ||
(4-a) "Incapacitated adult" has the meaning assigned | ||
by Section 1359.0001, Estates Code. | ||
(5-a) "Parental administrator" has the meaning | ||
assigned by Section 1359.0001, Estates Code. | ||
SECTION 2.06. The heading to Subchapter D, Chapter 155, | ||
Government Code, as added by Chapter 313 (S.B. 1096), Acts of the | ||
85th Legislature, Regular Session, 2017, is amended to read as | ||
follows: | ||
SUBCHAPTER D. GUARDIANSHIP AND PARENTAL ADMINISTRATION | ||
REGISTRATION AND DATABASE | ||
SECTION 2.07. Section 155.151, Government Code, as added by | ||
Chapter 313 (S.B. 1096), Acts of the 85th Legislature, Regular | ||
Session, 2017, is amended to read as follows: | ||
Sec. 155.151. REGISTRATION OF GUARDIANSHIPS AND PARENTAL | ||
ADMINISTRATIONS. (a) The supreme court, after consulting with the | ||
office and the commission, shall by rule establish a mandatory | ||
registration program for guardianships and parental | ||
administrations under which all guardianships or parental | ||
administrations, as applicable, in this state shall be required to | ||
register with the commission. | ||
(b) In establishing rules under this section, the supreme | ||
court shall ensure courts with jurisdiction over a guardianship or | ||
parental administration, as applicable, immediately notify the | ||
commission of the removal of a guardian or parental administrator. | ||
SECTION 2.08. Section 155.152, Government Code, as added by | ||
Chapter 313 (S.B. 1096), Acts of the 85th Legislature, Regular | ||
Session, 2017, is amended to read as follows: | ||
Sec. 155.152. GUARDIANSHIP AND PARENTAL ADMINISTRATION | ||
DATABASE. In cooperation with the commission and courts with | ||
jurisdiction over guardianship or parental administration | ||
proceedings and by using the information obtained by the commission | ||
under this subchapter, the office shall establish and maintain a | ||
central database of all guardianships and parental administrations | ||
subject to the jurisdiction of this state. | ||
SECTION 2.09. Section 155.153(c), Government Code, as added | ||
by Chapter 313 (S.B. 1096), Acts of the 85th Legislature, Regular | ||
Session, 2017, is amended to read as follows: | ||
(c) The only information that may be disclosed from the | ||
database to a law enforcement official inquiring into a | ||
guardianship or parental administration is: | ||
(1) the name, sex, and date of birth of a ward or | ||
incapacitated adult, as applicable; | ||
(2) the name, telephone number, and address of the | ||
guardian of a ward or the parental administrator of an | ||
incapacitated adult, as applicable; and | ||
(3) the name of the court with jurisdiction over the | ||
guardianship or parental administration, as applicable, | ||
proceeding. | ||
SECTION 2.10. Section 155.154, Government Code, as added by | ||
Chapter 313 (S.B. 1096), Acts of the 85th Legislature, Regular | ||
Session, 2017, is amended to read as follows: | ||
Sec. 155.154. DATABASE DISCLAIMER. To the extent feasible, | ||
the following disclaimer shall be displayed when the database is | ||
accessed: "This database is for the limited purpose of determining | ||
whether an individual has a guardian or parental administrator and | ||
obtaining a guardian's or parental administrator's contact | ||
information. The scope of a guardian's or parental administrator's | ||
authority is determined by court order, and a guardian or parental | ||
administrator should not be presumed to have the authority to act | ||
for or on behalf of a ward or incapacitated adult until the extent | ||
of the guardian's or parental administrator's authority is verified | ||
by the court with jurisdiction over the guardianship or parental | ||
administration." | ||
SECTION 2.11. Section 155.155(a), Government Code, is | ||
amended to read as follows: | ||
(a) Information that is contained in the database required | ||
under Section 155.152, including personally identifying | ||
information of a guardian, [ |
||
parental administrator is confidential and not subject to | ||
disclosure under Chapter 552 or any other law. | ||
SECTION 2.12. Section 313.004(f), Health and Safety Code, | ||
is amended to read as follows: | ||
(f) A person who is an available adult surrogate, as | ||
described by Subsection (a), may consent to medical treatment on | ||
behalf of a patient who is an adult inmate of a county or municipal | ||
jail only for a period that expires on the earlier of the 120th day | ||
after the date the person agrees to act as an adult surrogate for | ||
the patient or the date the inmate is released from jail. At the | ||
conclusion of the period, a successor surrogate may not be | ||
appointed and only the following persons may consent to medical | ||
treatment: | ||
(1) the patient; | ||
(2) [ |
||
person, if the patient is a ward under Title 3, Estates Code; or | ||
(3) the patient's parental administrator appointed | ||
under Chapter 1359, Estates Code, if the order appointing the | ||
parental administrator grants the parental administrator the duty | ||
to provide the incapacitated adult with medical care[ |
||
|
||
SECTION 2.13. Section 48.211, Human Resources Code, is | ||
amended to read as follows: | ||
Sec. 48.211. REPORT TO PROBATE [ |
||
the elderly person or person with a disability has a guardian or a | ||
parental administrator, as defined by Section 1359.0001, Estates | ||
Code, a written notification of the findings of the investigation | ||
shall be sent to the court to which the guardian or parental | ||
administrator is accountable. | ||
SECTION 2.14. Section 118.052, Local Government Code, is | ||
amended to read as follows: | ||
Sec. 118.052. FEE SCHEDULE. Each clerk of a county court | ||
shall collect the following fees for services rendered to any | ||
person: | ||
(1) CIVIL COURT ACTIONS | ||
(A) Filing of Original Action (Sec. 118.053): | ||
(i) Garnishment after judgment . . . $15.00 | ||
(ii) All others . . . $40.00 | ||
(B) Filing of Action Other than Original (Sec. | ||
118.054) . . . $30.00 | ||
(C) Services Rendered After Judgment in Original | ||
Action (Sec. 118.0545): | ||
(i) Abstract of judgment . . . $ 5.00 | ||
(ii) Execution, order of sale, writ, or | ||
other process . . . $ 5.00 | ||
(2) PROBATE COURT ACTIONS | ||
(A) Probate Original Action (Sec. 118.055): | ||
(i) Probate of a will with independent | ||
executor, administration with will attached, administration of an | ||
estate, guardianship or receivership of an estate, parental | ||
administration, or muniment of title . . . $40.00 | ||
(ii) Community survivors . . . $40.00 | ||
(iii) Small estates . . . $40.00 | ||
(iv) Declarations of heirship . . . $40.00 | ||
(v) Mental health or chemical dependency | ||
services . . . $40.00 | ||
(vi) Additional, special fee (Sec. 118.064) | ||
. . . $ 5.00 | ||
(B) Services in Pending Probate Action (Sec. | ||
118.056): | ||
(i) Filing an inventory and appraisement as | ||
provided by Section 118.056(d) . . . $25.00 | ||
(ii) Approving and recording bond . . . $ | ||
3.00 | ||
(iii) Administering oath . . . $ 2.00 | ||
(iv) Filing annual or final account of | ||
estate . . . $25.00 | ||
(v) Filing application for sale of real or | ||
personal property . . . $25.00 | ||
(vi) Filing annual or final report of | ||
guardian of a person . . . $10.00 | ||
(vii) Filing a document not listed under | ||
this paragraph after the filing of an order approving the inventory | ||
and appraisement or after the 120th day after the date of the | ||
initial filing of the action, whichever occurs first, if more than | ||
25 pages . . . $25.00 | ||
(C) Adverse Probate Action (Sec. 118.057) . . . | ||
$40.00 | ||
(D) Claim Against Estate (Sec. 118.058) . . . | ||
$10.00 | ||
(E) Supplemental Court-Initiated Guardianship | ||
Fee in Probate Original Actions and Adverse Probate Actions (Sec. | ||
118.067) . . . $20.00 | ||
(F) Supplemental Public Probate Administrator | ||
Fee For Counties That Have Appointed a Public Probate Administrator | ||
(Sec. 118.068) . . . $10.00 | ||
(3) OTHER FEES | ||
(A) Issuing Document (Sec. 118.059): | ||
original document and one copy . . . $ 4.00 | ||
each additional set of an original and one copy . . . $ 4.00 | ||
(B) Certified Papers (Sec. 118.060): | ||
for the clerk's certificate . . . $ 5.00 | ||
plus a fee per page or part of a page of . . . $ 1.00 | ||
(C) Noncertified Papers (Sec. 118.0605): | ||
for each page or part of a page . . . $ 1.00 | ||
(D) Letters Testamentary, Letter of | ||
Guardianship, Letter of Administration, or Abstract of Judgment | ||
(Sec. 118.061) . . . $ 2.00 | ||
(E) Deposit and Safekeeping of Wills (Sec. | ||
118.062) . . . $ 5.00 | ||
(F) Mail Service of Process (Sec. 118.063) . . . | ||
same as sheriff | ||
(G) Records Management and Preservation Fee | ||
. . . $ 5.00 | ||
(H) Records Technology and Infrastructure Fee if | ||
authorized by the commissioners court of the county (Sec. 118.026) | ||
. . . $ 2.00 | ||
SECTION 2.15. The heading to Section 25.10, Penal Code, is | ||
amended to read as follows: | ||
Sec. 25.10. INTERFERENCE WITH CERTAIN POSSESSORY RIGHTS [ |
||
|
||
SECTION 2.16. Section 25.10(a), Penal Code, is amended by | ||
amending Subdivision (1) and adding Subdivision (1-a) to read as | ||
follows: | ||
(a) In this section: | ||
(1) "Incapacitated adult" and "parental | ||
administrator" have the meanings assigned by Section 1359.0001, | ||
Estates Code. | ||
(1-a) "Possessory right" means: | ||
(A) the right of a guardian of the person to have | ||
physical possession of a ward and to establish the ward's legal | ||
domicile, as provided by Section 1151.051(c)(1), Estates Code; or | ||
(B) the right of a parental administrator to have | ||
physical possession of an incapacitated adult and to establish the | ||
incapacitated adult's legal domicile, as provided by Section | ||
1359.0108, Estates Code. | ||
SECTION 2.17. Section 25.10, Penal Code, is amended by | ||
adding Subsection (b-1) and amending Subsection (d) to read as | ||
follows: | ||
(b-1) A person commits an offense if the person takes, | ||
retains, or conceals an incapacitated adult when the person knows | ||
that the person's taking, retention, or concealment interferes with | ||
a possessory right with respect to the incapacitated adult that is | ||
established in the order appointing a parental administrator by | ||
including the right of the parental administrator to: | ||
(1) have physical possession of the incapacitated | ||
adult; or | ||
(2) establish the incapacitated adult's legal | ||
domicile. | ||
(d) This section does not apply to a governmental entity | ||
where the taking, retention, or concealment of the individual | ||
[ |
||
Chapter 48, Human Resources Code. | ||
SECTION 2.18. The changes in law made by this Act to Section | ||
25.10, Penal Code, apply only to an offense committed on or after | ||
the effective date of this Act. An offense committed before the | ||
effective date of this Act is governed by the law in effect on the | ||
date the offense was committed, and the former law is continued in | ||
effect for that purpose. For purposes of this section, an offense | ||
was committed before the effective date of this Act if any element | ||
of the offense occurred before that date. | ||
ARTICLE 3. EFFECTIVE DATE | ||
SECTION 3.01. This Act takes effect September 1, 2019. |