Bill Text: TX SB1196 | 2011-2012 | 82nd Legislature | Enrolled

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Bill Title: Relating to guardianships and alternatives to guardianship for persons who have physical disabilities or who are incapacitated.

Spectrum: Bipartisan Bill

Status: (Passed) 2011-06-17 - Effective on 9/1/11 [SB1196 Detail]

Download: Texas-2011-SB1196-Enrolled.html

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S.B. No. 1196

AN ACT
relating to guardianships and alternatives to guardianship for
persons who have physical disabilities or who are incapacitated.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subdivision (25), Section 601, Texas Probate
Code, is amended to read as follows:
(25) The term ["Proceedings in guardianship,"
"guardianship matter," "guardianship matters,"] "guardianship
proceeding" means [proceeding," and "proceedings for guardianship"
are synonymous and include] a matter or proceeding related
[relating] to a guardianship or any other matter covered
[addressed] by this chapter, including:
(A) 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;
(B) an application, petition, or motion
regarding guardianship or an alternative to guardianship under this
chapter;
(C) a mental health action; and
(D) an application, petition, or motion
regarding a trust created under Section 867 of this code.
SECTION 2. Section 605, Texas Probate Code, is amended to
read as follows:
Sec. 605. GENERAL PROBATE [COUNTY] COURT JURISDICTION IN
GUARDIANSHIP PROCEEDINGS; APPEALS. (a) All guardianship
proceedings must be filed and heard in a court exercising original
probate jurisdiction. The court exercising original probate
jurisdiction also has jurisdiction of all matters related to the
guardianship proceeding as specified in Section 606A of this code
for that type of court.
(b) A probate court may exercise pendent and ancillary
jurisdiction as necessary to promote judicial efficiency and
economy.
(c) A final order issued by a probate court is appealable to
the court of appeals. [The county court has the general
jurisdiction of a probate court. The county court shall appoint
guardians of minors and other incapacitated persons, grant letters
of guardianship, settle accounts of guardians, and transact all
business appertaining to estates subject to guardianship,
including the settlement, partition, and distribution of the
estates. The county court may also enter other orders as may be
authorized under this chapter.]
SECTION 3. Subpart A, Part 2, Chapter XIII, Texas Probate
Code, is amended by adding Sections 606A, 607A, 607B, 607C, 607D,
and 607E to read as follows:
Sec. 606A. MATTERS RELATED TO GUARDIANSHIP PROCEEDING.
(a) For purposes of this code, in a county in which there is no
statutory probate court, a matter related to a guardianship
proceeding includes:
(1) the granting of letters of guardianship;
(2) the settling of an account of a guardian and all
other matters relating to the settlement, partition, or
distribution of a ward's estate;
(3) a claim brought by or against a guardianship
estate;
(4) an action for trial of title to real property that
is guardianship estate property, including the enforcement of a
lien against the property;
(5) an action for trial of the right of property that
is guardianship estate property;
(6) after a guardianship of the estate of a ward is
required to be settled as provided by Section 745 of this code:
(A) an action brought by or on behalf of the
former ward against a former guardian of the ward for alleged
misconduct arising from the performance of the person's duties as
guardian;
(B) an action calling on the surety of a guardian
or former guardian to perform in place of the guardian or former
guardian, which may include the award of a judgment against the
guardian or former guardian in favor of the surety;
(C) an action against a former guardian of the
former ward that is brought by a surety that is called on to perform
in place of the former guardian;
(D) a claim for the payment of compensation,
expenses, and court costs, and any other matter authorized under
Subpart H, Part 2, of this chapter; and
(E) a matter related to an authorization made or
duty performed by a guardian under Subpart C, Part 4, of this
chapter; and
(7) the appointment of a trustee for a trust created
under Section 867 of this code, the settling of an account of the
trustee, and all other matters relating to the trust.
(b) For purposes of this code, in a county in which there is
a statutory probate court, a matter related to a guardianship
proceeding includes:
(1) all matters and actions described in Subsection
(a) of this section;
(2) a suit, action, or application filed against or on
behalf of a guardianship or a trustee of a trust created under
Section 867 of this code; and
(3) a cause of action in which a guardian in a
guardianship pending in the statutory probate court is a party.
Sec. 607A. ORIGINAL JURISDICTION FOR GUARDIANSHIP
PROCEEDINGS. (a) In a county in which there is no statutory
probate court or county court at law exercising original probate
jurisdiction, the county court has original jurisdiction of
guardianship proceedings.
(b) In a county in which there is no statutory probate
court, but in which there is a county court at law exercising
original probate jurisdiction, the county court at law exercising
original probate jurisdiction and the county court have concurrent
original jurisdiction of guardianship proceedings, unless
otherwise provided by law. The judge of a county court may hear
guardianship proceedings while sitting for the judge of any other
county court.
(c) In a county in which there is a statutory probate court,
the statutory probate court has original jurisdiction of
guardianship proceedings.
Sec. 607B. JURISDICTION OF CONTESTED GUARDIANSHIP
PROCEEDING IN COUNTY WITH NO STATUTORY PROBATE COURT OR COUNTY
COURT AT LAW. (a) In a county in which there is no statutory
probate court or county court at law exercising original probate
jurisdiction, when a matter in a guardianship proceeding is
contested, the judge of the county court may, on the judge's own
motion, or shall, on the motion of any party to the proceeding,
according to the motion:
(1) request the assignment of a statutory probate
court judge to hear the contested matter, as provided by Section
25.0022, Government Code; or
(2) transfer the contested matter to the district
court, which may then hear the contested matter as if originally
filed in the district court.
(b) If a party to a guardianship proceeding files a motion
for the assignment of a statutory probate court judge to hear a
contested matter in the proceeding before the judge of the county
court transfers the contested matter to a district court under this
section, the county judge shall grant the motion for the assignment
of a statutory probate court judge and may not transfer the matter
to the district court unless the party withdraws the motion.
(c) If a judge of a county court requests the assignment of a
statutory probate court judge to hear a contested matter in a
guardianship proceeding on the judge's own motion or on the motion
of a party to the proceeding as provided by this section, the judge
may request that the statutory probate court judge be assigned to
the entire proceeding on the judge's own motion or on the motion of
a party.
(d) A party to a guardianship proceeding may file a motion
for the assignment of a statutory probate court judge under this
section before a matter in the proceeding becomes contested, and
the motion is given effect as a motion for assignment of a statutory
probate court judge under Subsection (a) of this section if the
matter later becomes contested.
(e) Notwithstanding any other law, a transfer of a contested
matter in a guardianship proceeding to a district court under any
authority other than the authority provided by this section:
(1) is disregarded for purposes of this section; and
(2) does not defeat the right of a party to the
proceeding to have the matter assigned to a statutory probate court
judge in accordance with this section.
(f) A statutory probate court judge assigned to a contested
matter in a guardianship proceeding or to the entire proceeding
under this section has the jurisdiction and authority granted to a
statutory probate court by this code. A statutory probate court
judge assigned to hear only the contested matter in a guardianship
proceeding shall, on resolution of the matter, including any appeal
of the matter, return the matter to the county court for further
proceedings not inconsistent with the orders of the statutory
probate court or court of appeals, as applicable. A statutory
probate court judge assigned to the entire guardianship proceeding
as provided by Subsection (c) of this section shall, on resolution
of the contested matter in the proceeding, including any appeal of
the matter, return the entire proceeding to the county court for
further proceedings not inconsistent with the orders of the
statutory probate court or court of appeals, as applicable.
(g) A district court to which a contested matter in a
guardianship proceeding is transferred under this section has the
jurisdiction and authority granted to a statutory probate court by
this code. On resolution of a contested matter transferred to the
district court under this section, including any appeal of the
matter, the district court shall return the matter to the county
court for further proceedings not inconsistent with the orders of
the district court or court of appeals, as applicable.
(h) If only the contested matter in a guardianship
proceeding is assigned to a statutory probate court judge under
this section, or if the contested matter in a guardianship
proceeding is transferred to a district court under this section,
the county court shall continue to exercise jurisdiction over the
management of the guardianship, other than a contested matter,
until final disposition of the contested matter is made in
accordance with this section. Any matter related to a guardianship
proceeding in which a contested matter is transferred to a district
court may be brought in the district court. The district court in
which a matter related to the proceeding is filed may, on the
court's own motion or on the motion of any party, find that the
matter is not a contested matter and transfer the matter to the
county court with jurisdiction of the management of the
guardianship.
(i) If a contested matter in a guardianship proceeding is
transferred to a district court under this section, the district
court has jurisdiction of any contested matter in the proceeding
that is subsequently filed, and the county court shall transfer
those contested matters to the district court. If a statutory
probate court judge is assigned under this section to hear a
contested matter in a guardianship proceeding, the statutory
probate court judge shall be assigned to hear any contested matter
in the proceeding that is subsequently filed.
(j) The clerk of a district court to which a contested
matter in a guardianship proceeding is transferred under this
section may perform in relation to the transferred matter any
function a county clerk may perform with respect to that type of
matter.
Sec. 607C. JURISDICTION OF CONTESTED GUARDIANSHIP
PROCEEDING IN COUNTY WITH NO STATUTORY PROBATE COURT. (a) In a
county in which there is no statutory probate court, but in which
there is a county court at law exercising original probate
jurisdiction, when a matter in a guardianship proceeding is
contested, the judge of the county court may, on the judge's own
motion, or shall, on the motion of any party to the proceeding,
transfer the contested matter to the county court at law. In
addition, the judge of the county court, on the judge's own motion
or on the motion of a party to the proceeding, may transfer the
entire proceeding to the county court at law.
(b) A county court at law to which a proceeding is
transferred under this section may hear the proceeding as if
originally filed in that court. If only a contested matter in the
proceeding is transferred, on the resolution of the matter, the
matter shall be returned to the county court for further
proceedings not inconsistent with the orders of the county court at
law.
Sec. 607D. EXCLUSIVE JURISDICTION OF GUARDIANSHIP
PROCEEDING IN COUNTY WITH STATUTORY PROBATE COURT. (a) In a
county in which there is a statutory probate court, the statutory
probate court has exclusive jurisdiction of all guardianship
proceedings, regardless of whether contested or uncontested.
(b) A cause of action related to a guardianship proceeding
of which the statutory probate court has exclusive jurisdiction as
provided by Subsection (a) of this section must be brought in the
statutory probate court unless the jurisdiction of the statutory
probate court is concurrent with the jurisdiction of a district
court as provided by Section 607E of this code or with the
jurisdiction of any other court.
Sec. 607E. CONCURRENT JURISDICTION WITH DISTRICT COURT. A
statutory probate court has concurrent jurisdiction with the
district court in:
(1) a personal injury, survival, or wrongful death
action by or against a person in the person's capacity as a
guardian; and
(2) an action involving a guardian in which each other
party aligned with the guardian is not an interested person in the
guardianship.
SECTION 4. Section 608, Texas Probate Code, is amended to
read as follows:
Sec. 608. TRANSFER OF [GUARDIANSHIP] PROCEEDING BY
STATUTORY PROBATE COURT. (a) A judge of a statutory probate
court, on the motion of a party to the action or of a person
interested in the [a] guardianship, may:
(1) transfer to the judge's court from a district,
county, or statutory court a cause of action that is a matter
related [appertaining to or incident] to a guardianship proceeding
[estate that is] pending in the statutory probate court, including
[or] a cause of action that is a matter related [relating] to a
guardianship proceeding pending in the statutory probate court and
in which the [a] guardian, ward, or proposed ward in the [a
guardianship] pending guardianship proceeding [in the statutory
probate court] is a party; and
(2) [may] consolidate the transferred cause of action
with the guardianship proceeding to which it relates and any other
proceedings in the statutory probate court that are related
[relating] to the guardianship proceeding [estate].
(b) Notwithstanding any other provision of this chapter,
the proper venue for an action by or against a guardian, ward, or
proposed ward for personal injury, death, or property damages is
determined under Section 15.007, Civil Practice and Remedies Code.
SECTION 5. The heading to Section 609, Texas Probate Code,
is amended to read as follows:
Sec. 609. TRANSFER OF CONTESTED GUARDIANSHIP OF THE PERSON
OF A MINOR.
SECTION 6. Subsection (a), Section 609, Texas Probate Code,
is amended to read as follows:
(a) If an interested person contests an application for the
appointment of a guardian of the person of a minor or an interested
person seeks the removal of a guardian of the person of a minor, the
judge, on the judge's own motion, may transfer all matters related
[relating] to the guardianship proceeding [of the person of the
minor] to a court of competent jurisdiction in which a suit
affecting the parent-child relationship under the Family Code is
pending.
SECTION 7. Subsection (a), Section 611, Texas Probate Code,
is amended to read as follows:
(a) If two or more courts have concurrent venue of a
guardianship proceeding [matter], the court in which an application
for a guardianship proceeding is initially filed has and retains
jurisdiction of the proceeding [guardianship matter]. A proceeding
is considered commenced by the filing of an application alleging
facts sufficient to confer venue, and the proceeding initially
legally commenced extends to all of the property of the
guardianship estate.
SECTION 8. Subsection (a), Section 621, Texas Probate Code,
is amended to read as follows:
(a) An application for a guardianship proceeding or[,] a
complaint, petition, or other paper permitted or required by law to
be filed in the court in a guardianship proceeding [matters] shall
be filed with the county clerk of the proper county.
SECTION 9. Subsections (a) and (b), Section 622, Texas
Probate Code, are amended to read as follows:
(a) The laws regulating costs in ordinary civil cases apply
to a guardianship proceeding [matter] unless otherwise expressly
provided by this chapter.
(b) When a person other than the guardian, attorney ad
litem, or guardian ad litem files an application, complaint, or
opposition in relation to a guardianship proceeding [matter], the
clerk may require the person to give security for the probable costs
of the [guardianship] proceeding before filing. A person
interested in the guardianship or in the welfare of the ward, or an
officer of the court, at any time before the trial of an
application, complaint, or opposition in relation to a guardianship
proceeding [matter], may obtain from the court, on written motion,
an order requiring the person who filed the application, complaint,
or opposition to give security for the probable costs of the
proceeding. The rules governing civil suits in the county court
relating to this subject control in these cases.
SECTION 10. Section 629, Texas Probate Code, is amended to
read as follows:
Sec. 629. CALL OF THE DOCKETS. The judge of the court in
which a guardianship proceeding is pending, as the judge
determines, shall call guardianship proceedings [matters] in their
regular order on both the guardianship and claim dockets and shall
make necessary orders.
SECTION 11. Section 630, Texas Probate Code, is amended to
read as follows:
Sec. 630. CLERK MAY SET HEARINGS. If the [county] judge is
absent from the county seat or is on vacation, disqualified, ill, or
deceased and is unable to designate the time and place for hearing a
guardianship proceeding [matter] pending in the judge's court, the
county clerk of the county in which the proceeding [matter] is
pending may designate the time and place for hearing, entering the
setting on the judge's docket and certifying on the docket the
reason that the judge is not acting to set the hearing. If a
qualified judge is not present for the hearing, after service of the
notices and citations required by law with reference to the time and
place of hearing has been perfected, the hearing is automatically
continued from day to day until a qualified judge is present to hear
and make a determination in the proceeding [determine the matter].
SECTION 12. The heading to Section 632, Texas Probate Code,
is amended to read as follows:
Sec. 632. ISSUANCE, CONTENTS, SERVICE, AND RETURN OF
CITATION, NOTICES, AND WRITS IN GUARDIANSHIP PROCEEDINGS
[MATTERS].
SECTION 13. Subsections (a), (b), and (h), Section 632,
Texas Probate Code, are amended to read as follows:
(a) A person does not need to be cited or otherwise given
notice in a guardianship proceeding [matter] except in situations
in which this chapter expressly provides for citation or the giving
of notice. If this chapter does not expressly provide for citation
or the issuance or return of notice in a guardianship proceeding
[matter], the court may require that notice be given. If the court
requires that notice be given, the court shall prescribe the form
and manner of service and return of service.
(b) Unless a court order is required by a provision of this
chapter, the county clerk shall issue without a court order
necessary citations, writs, and process in guardianship
proceedings [matters] and all notices not required to be issued by
guardians.
(h) In a guardianship proceeding [matter] in which citation
or notice is required to be served by posting and issued in
conformity with the applicable provision of this code, the citation
or notice and the service of and return of the citation or notice is
sufficient and valid if a sheriff or constable posts a copy of the
citation or notice at the place or places prescribed by this chapter
on a day that is sufficiently before the return day contained in the
citation or notice for the period of time for which the citation or
notice is required to be posted to elapse before the return day of
the citation or notice. The sufficiency or validity of the citation
or notice or the service of or return of the service of the citation
or notice is not affected by the fact that the sheriff or constable
makes the [his] return on the citation or notice and returns the
citation or notice to the court before the period elapses for which
the citation or notice is required to be posted, even though the
return is made, and the citation or notice is returned to the court,
on the same day it is issued.
SECTION 14. Section 641, Texas Probate Code, is amended to
read as follows:
Sec. 641. DEFECTS IN PLEADING. A court may not invalidate a
pleading in a guardianship proceeding [matter] or an order based on
the pleading based on a defect of form or substance in the pleading,
unless the defect has been timely objected to and called to the
attention of the court in which the proceeding was or is pending.
SECTION 15. Section 646, Texas Probate Code, is amended by
amending Subsection (e) and adding Subsection (f) to read as
follows:
(e) The term of appointment of an attorney ad litem
appointed under this section expires, without a court order, on the
date the court [either] appoints a guardian in accordance with
Section 693 of this code, appoints a successor guardian, or denies
the application for appointment of a guardian, unless the court
determines that the continued appointment of the attorney ad litem
is in the ward's best interest.
(f) The term of appointment of an attorney ad litem
appointed under this section continues after the court appoints a
temporary guardian under Section 875 of this code unless a court
order provides for the termination or expiration of the attorney ad
litem's appointment.
SECTION 16. Section 650, Texas Probate Code, is amended to
read as follows:
Sec. 650. DECREES. A decision, order, decree, or judgment
of the court in a guardianship proceeding [matter] must be rendered
in open court, except in a case in which it is otherwise expressly
provided.
SECTION 17. Subpart E, Part 2, Chapter XIII, Texas Probate
Code, is amended by adding Section 652 to read as follows:
Sec. 652. LOCATION OF HEARING. (a) Except as provided by
Subsection (b) of this section, the judge may hold a hearing on a
guardianship matter involving an adult ward or adult proposed ward
at any suitable location in the county in which the guardianship
matter is pending. The hearing should be held in a physical setting
that is not likely to have a harmful effect on the ward or proposed
ward.
(b) On the request of the adult proposed ward, the adult
ward, or the attorney of the proposed ward or ward, the hearing may
not be held under the authority of this section at a place other
than the courthouse.
SECTION 18. Section 653, Texas Probate Code, is amended to
read as follows:
Sec. 653. EXECUTION. An execution in a guardianship
proceeding [matter] shall be directed "To any sheriff or any
constable within the State of Texas," made returnable in 60 days,
and attested and signed by the clerk officially under the seal of
the court. A proceeding under an execution in a guardianship
proceeding [matter] is governed so far as applicable by the laws
regulating a proceeding under an execution issued from the district
court. An execution directed to the sheriff or a constable of a
specific county in this state may not be held defective if the
execution was properly executed within the county by the officer to
whom the direction for execution was given.
SECTION 19. Section 666, Texas Probate Code, is amended to
read as follows:
Sec. 666. EXPENSES ALLOWED. A guardian is entitled to be
reimbursed from the guardianship estate for all necessary and
reasonable expenses incurred in performing any duty as a guardian,
including reimbursement for the payment of reasonable attorney's
fees necessarily incurred by the guardian in connection with the
management of the estate or any other [guardianship] matter in the
guardianship.
SECTION 20. Subsection (a), Section 669, Texas Probate
Code, is amended to read as follows:
(a) Except as provided by Subsection (b) of this section, in
a guardianship proceeding [matter], the cost of the proceeding,
including the cost of the guardian ad litem or court visitor, shall
be paid out of the guardianship estate, or, if the estate is
insufficient to pay for the cost of the proceeding, the cost of the
proceeding shall be paid out of the county treasury, and the
judgment of the court shall be issued accordingly.
SECTION 21. Subsections (a-1) and (a-2), Section 682A,
Texas Probate Code, are amended to read as follows:
(a-1) Notwithstanding any other law, if the applicant who
files an application under Subsection (a) of this section or
Section 682 of this code is a person who was appointed conservator
of a disabled child and the proceeding is a guardianship proceeding
described by Section 601(25)(A) of this code in which the proposed
ward is the incapacitated adult with respect to whom another court
obtained continuing, exclusive jurisdiction in a suit affecting the
parent-child relationship when the person was a child [for whom a
court obtains jurisdiction under Section 606(k) of this code], the
applicant may present to the court a written letter or certificate
that meets the requirements of Section 687(a) of this code.
(a-2) If, on receipt of the letter or certificate described
by Subsection (a-1) of this section, the court is able to make the
findings required by Section 684 of this code, the court,
notwithstanding Section 677 of this code, shall appoint the
conservator as guardian without conducting a hearing and shall, to
the extent possible, preserve the terms of possession and access to
the ward that applied before the court obtained jurisdiction of the
guardianship proceeding [under Section 606(k) of this code].
SECTION 22. Subsection (c), Section 687, Texas Probate
Code, is amended to read as follows:
(c) If the basis of the proposed ward's alleged incapacity
is mental retardation, the court may not grant an application to
create a guardianship for the proposed ward unless the applicant
presents to the court a written letter or certificate that:
(1) [a written letter or certificate that:
[(A)] complies with Subsection (a) of this
section; [and
[(B) states that the physician has made a
determination of mental retardation in accordance with Section
593.005, Health and Safety Code;] or
(2) shows that [both]:
(A) [written documentation showing that,] not
earlier than 24 months before the date of the hearing, the proposed
ward has been examined by a physician or psychologist licensed in
this state or certified by the Department of Aging and Disability
Services to perform the examination, in accordance with rules of
the executive commissioner of the Health and Human Services
Commission governing examinations of that kind; and
(B) the physician's or psychologist's written
findings and recommendations to the court include[, including] a
statement as to whether the physician or psychologist has made a
determination of mental retardation in accordance with Section
593.005, Health and Safety Code.
SECTION 23. Subsection (c), Section 729, Texas Probate
Code, is amended to read as follows:
(c) An inventory made under this section must specify:
(1) what portion of the property is separate property
and what portion is community property; and
(2) if[. If] any of the property is owned in common
with other persons, the interest owned by the ward [shall be shown
in the inventory, together with the names and relationship, if
known, of co-owners].
SECTION 24. Section 730, Texas Probate Code, is amended to
read as follows:
Sec. 730. LIST OF CLAIMS. The guardian shall make and
attach to an inventory under Section 729 of this code a full and
complete list of all claims due or owing to the ward that must
state:
(1) the name of each person indebted to the ward and
the address of the person if known;
(2) the nature of the debt, whether it is a note, bill,
bond, or other written obligation or whether it is an account or
verbal contract;
(3) the date of the indebtedness and the date when the
debt is or was due;
(4) the amount of each claim, the rate of interest on
each claim, and time for which the claim bears interest; and
(5) what portion of the claim is held in common with
others[, including the names and the relationships of other part
owners] and the interest of the estate in the claim.
SECTION 25. Subsections (a) and (d), Section 745, Texas
Probate Code, are amended to read as follows:
(a) A guardianship of the estate of a ward shall be settled
when:
(1) a minor ward dies or becomes an adult by becoming
18 years of age, or by removal of disabilities of minority according
to the law of this state, or by marriage;
(2) an incapacitated ward dies, or is decreed as
provided by law to have been restored to full legal capacity;
(3) the spouse of a married ward has qualified as
survivor in community and the ward owns no separate property;
(4) the estate of a ward becomes exhausted;
(5) the foreseeable income accruing to a ward or to the
ward's [his] estate is so negligible that maintaining the
guardianship in force would be burdensome;
(6) all of the assets of the estate have been placed in
a management trust under Subpart N[, Part 4,] of this part, or have
been transferred to a pooled trust subaccount in accordance with a
court order issued as provided by Subpart I, Part 5, of this
chapter, [code] and the court determines that a guardianship of
[for] the ward's estate [ward] is no longer necessary; or
(7) the court determines for any other reason that a
guardianship for the ward is no longer necessary.
(d) In the settlement of a guardianship, the court may
appoint an attorney ad litem to represent the interests of the ward,
and may allow the attorney ad litem reasonable compensation to be
taxed as costs [for services provided by the attorney out of the
ward's estate].
SECTION 26. Subsection (c), Section 770, Texas Probate
Code, is amended to read as follows:
(c) A guardian of a person younger than 18 [16] years of age
may voluntarily admit the ward [an incapacitated person] to a
public or private inpatient psychiatric facility for care and
treatment.
SECTION 27. The heading to Subpart M, Part 4, Chapter XIII,
Texas Probate Code, is amended to read as follows:
SUBPART M. TAX-MOTIVATED, [TAX MOTIVATED AND] CHARITABLE, AND
OTHER GIFTS
SECTION 28. The heading to Section 865, Texas Probate Code,
is amended to read as follows:
Sec. 865. POWER TO MAKE CERTAIN [TAX-MOTIVATED] GIFTS AND
TRANSFERS.
SECTION 29. Subsections (a) and (b), Section 865, Texas
Probate Code, are amended to read as follows:
(a) On application of the guardian of the estate or any
interested person [party] and after the posting of notice, the
court, after hearing, may enter an order that authorizes the
guardian to apply the principal or income of the ward's estate that
is not required for the support of the ward or the ward's family
during the ward's lifetime toward the establishment of an estate
plan for the purpose of minimizing income, estate, inheritance, or
other taxes payable out of the ward's estate, or to transfer a
portion of the ward's estate as necessary to qualify the ward for
government benefits and only to the extent allowed by applicable
state or federal laws, including rules, regarding those benefits,
on a showing that the ward will probably remain incapacitated
during the ward's lifetime. On the ward's behalf, the court may
authorize the guardian to make gifts or transfers described by this
subsection, outright or in trust, of the ward's [personal] property
[or real estate] to or for the benefit of:
(1) an organization to which charitable contributions
may be made under the Internal Revenue Code and in which it is shown
the ward would reasonably have an interest;
(2) the ward's spouse, descendant, or other person
related to the ward by blood or marriage who are identifiable at the
time of the order;
(3) a devisee under the ward's last validly executed
will, trust, or other beneficial instrument if the instrument
exists; and
(4) a person serving as guardian of the ward if the
person is eligible under either Subdivision (2) or (3) of this
subsection.
(b) The person making an application to the court under this
section shall outline the proposed estate or other transfer plan
and set forth all the benefits that are to be derived from the
[estate] plan. The application must indicate that the planned
disposition is consistent with the ward's intentions if the ward's
intentions can be ascertained. If the ward's intentions cannot be
ascertained, the ward will be presumed to favor reduction in the
incidence of the various forms of taxation, the qualification for
government benefits, and the partial distribution of the ward's
estate as provided by this section.
SECTION 30. Subsections (a-1), (b), (c), and (f), Section
867, Texas Probate Code, are amended to read as follows:
(a-1) The following persons may apply for the creation of a
trust under this section:
(1) the guardian of the estate of a ward;
(2) the guardian of the person of a ward;
(3) the guardian of both the person of and estate of a
ward;
(4) an attorney ad litem or guardian ad litem
appointed to represent a ward or the ward's interests;
(5) a person interested in the welfare of an alleged
incapacitated person who does not have a guardian [of the estate];
[or]
(6) an attorney ad litem or guardian ad litem
appointed to represent an alleged incapacitated person who does not
have a guardian; or
(7) a person who has only a physical disability [that
person's interests].
(b) On application by an appropriate person as provided by
Subsection (a-1) of this section and subject to Subsection (b-1) of
this section, if applicable, the court with jurisdiction over the
proceedings [guardianship] may enter an order that creates [for the
ward's benefit] a trust for the management of the [guardianship]
funds of the person with respect to whom the application is filed if
the court finds that the creation of the trust is in the person's
[ward's] best interests.
(c) Subject to Subsection (d) of this section, if the court
finds that it is in the [ward's or incapacitated person's] best
interests of the person for whom a trust is created under this
section, the court may appoint a person or entity that meets the
requirements of Subsection (e) of this section to serve as trustee
of the trust instead of appointing a financial institution to serve
in that capacity.
(f) If a trust is created for a person [ward], the order
shall direct any [a] person or entity holding property belonging to
the person for whom the trust is created [ward] or to which that
person [the ward] is entitled to deliver all or part of the property
to a person or corporate fiduciary appointed by the court as trustee
of the trust. [If a trust is created for an incapacitated person
who does not have a guardian, the order shall direct a person
holding property belonging to the incapacitated person or to which
the incapacitated person is entitled to deliver all or part of the
property to the corporate fiduciary or other person appointed as
trustee of the trust.] The order shall include terms, conditions,
and limitations placed on the trust. The court may [shall] maintain
the trust under the same cause number as the guardianship
proceeding, if the person for whom the trust is created is a ward or
proposed ward [applicable].
SECTION 31. Subsections (a), (b), and (d), Section 868,
Texas Probate Code, are amended to read as follows:
(a) Except as provided by Subsection (d) of this section, a
trust created under Section 867 of this code must provide that:
(1) the ward, [or] incapacitated person, or person who
has only a physical disability is the sole beneficiary of the trust;
(2) the trustee may disburse an amount of the trust's
principal or income as the trustee determines is necessary to
expend for the health, education, support, or maintenance of the
[ward or incapacitated] person for whom the trust is created;
(3) the income of the trust that the trustee does not
disburse under Subdivision (2) of this subsection must be added to
the principal of the trust;
(4) if the trustee is a corporate fiduciary, the
trustee serves without giving a bond; and
(5) the trustee, subject to the court's approval, is
entitled to receive reasonable compensation for services that the
trustee provided to the [ward or incapacitated] person for whom the
trust is created as the [ward's or incapacitated] person's trustee
that is:
(A) to be paid from the trust's income,
principal, or both; and
(B) determined, paid, reduced, and eliminated in
the same manner as compensation of a guardian [of an estate] under
Section 665 of this code.
(b) The trust may provide that a trustee make a
distribution, payment, use, or application of trust funds for the
health, education, support, or maintenance of the [ward or
incapacitated] person for whom the trust is created or of another
person whom the [ward or incapacitated] person for whom the trust is
created is legally obligated to support, as necessary and without
the intervention of a guardian or other representative of the ward
or of a representative of the incapacitated person or person who has
only a physical disability, to:
(1) the ward's guardian;
(2) a person who has physical custody of the [ward or
incapacitated] person for whom the trust is created or another
person whom the [ward or incapacitated] person for whom the trust is
created is legally obligated to support; or
(3) a person providing a good or service to the [ward
or incapacitated] person for whom the trust is created or another
person whom the [ward or incapacitated] person for whom the trust is
created is legally obligated to support.
(d) When creating or modifying a trust, the court may omit
or modify terms required by Subsection (a)(1) or (2) of this section
only if the court determines that the omission or modification:
(1) is necessary and appropriate for the [ward or
incapacitated] person for whom the trust is created to be eligible
to receive public benefits or assistance under a state or federal
program that is not otherwise available to the [ward or
incapacitated] person; and
(2) is in the [ward's or incapacitated person's] best
interests of the person for whom the trust is created.
SECTION 32. Subsection (a), Section 868C, Texas Probate
Code, is amended to read as follows:
(a) If the court determines that it is in the [ward's or
incapacitated person's] best interests of the person for whom a
trust is created under Section 867 of this code, the court may order
the transfer of all property in the [a management] trust [created
under Section 867 of this code] to a subaccount of a pooled trust
established in accordance with Subpart I, Part 5, of this chapter.
The transfer of property from the management trust to the
subaccount of the pooled trust shall be treated as a continuation of
the management trust and may not be treated as the establishment of
a new trust for purposes of 42 U.S.C. Section 1396p(d)(4)(A) or (C)
or otherwise for purposes of the management trust beneficiary's
[ward's or incapacitated person's] eligibility for medical
assistance under Chapter 32, Human Resources Code.
SECTION 33. Subsection (b), Section 869, Texas Probate
Code, is amended to read as follows:
(b) The following may not revoke the trust:
(1) the ward for whom the trust is created or the
guardian of the ward's estate;
(2) [or] the incapacitated person for whom the trust
is created; or
(3) the person who has only a physical disability for
whom the trust is created[, as applicable, may not revoke the
trust].
SECTION 34. Section 870, Texas Probate Code, is amended to
read as follows:
Sec. 870. TERMINATION OF TRUST. (a) If the [ward or
incapacitated] person for whom a trust is created under Section 867
of this code is a minor, the trust terminates:
(1) on the person's death [of the ward or incapacitated
person] or the [ward's or incapacitated] person's 18th birthday,
whichever is earlier; or
(2) on the date provided by court order, which may not
be later than the [ward's or incapacitated] person's 25th birthday.
(b) If the [ward or incapacitated] person for whom a trust
is created under Section 867 of this code is not a minor, the trust
terminates:
(1) according to the terms of the trust;
(2) on the date the court determines that continuing
the trust is no longer in the [ward's or incapacitated] person's
best interests, subject to Section 868C(b) of this code;[,] or
(3) on the person's death [of the ward or incapacitated
person].
SECTION 35. Subpart N, Part 4, Chapter XIII, Texas Probate
Code, is amended by adding Section 870A to read as follows:
Sec. 870A. INITIAL ACCOUNTING BY CERTAIN TRUSTEES REQUIRED.
(a) This section applies only to a trustee of a trust created under
Section 867 of this code for a person for whom a guardianship
proceeding is pending on the date the trust is created.
(b) Not later than the 30th day after the date a trustee to
which this section applies receives property into the trust, the
trustee shall file with the court in which the guardianship
proceeding is pending a report describing all property held in the
trust on the date of the report and specifying the value of the
property on that date.
SECTION 36. Section 871, Texas Probate Code, is amended by
amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) Except as provided by Subsection (d) of this section,
the [The] trustee shall prepare and file with the court an annual
accounting of transactions in the trust in the same manner and form
that is required of a guardian under this chapter.
(d) The court may not require a trustee of a trust created
for a person who has only a physical disability to prepare and file
with the court the annual accounting as described by Subsection (a)
of this section.
SECTION 37. Section 873, Texas Probate Code, is amended to
read as follows:
Sec. 873. DISTRIBUTION OF TRUST PROPERTY. (a) Unless
otherwise provided by the court and except as provided by
Subsection (b) of this section, the trustee shall:
(1) prepare a final account in the same form and manner
that is required of a guardian under Section 749 of this code; and
(2) on court approval, distribute the principal or any
undistributed income of the trust:
(A) to the ward or incapacitated person when the
trust terminates on its own terms;
(B) to the successor trustee on appointment of a
successor trustee; or
(C) to the representative of the deceased ward's
or incapacitated person's estate on the ward's or incapacitated
person's death.
(b) The court may not require a trustee of a trust created
for a person who has only a physical disability to prepare and file
with the court a final account as described by Subsection (a)(1) of
this section. The trustee shall distribute the principal and any
undistributed income of the trust in the manner provided by
Subsection (a)(2) of this section for a trust the beneficiary of
which is a ward or incapacitated person.
SECTION 38. Subdivision (1), Section 910, Texas Probate
Code, is amended to read as follows:
(1) "Beneficiary" means a minor or other incapacitated
person, an alleged incapacitated person, or a disabled person who
is not an[, or any other] incapacitated person for whom a subaccount
is established.
SECTION 39. Section 911, Texas Probate Code, is amended to
read as follows:
Sec. 911. APPLICATION. The following persons [A person
interested in the welfare of a minor, a disabled person, or any
other incapacitated person] may apply to the court for the
establishment of a subaccount for the benefit of a [the] minor[,
disabled person,] or other incapacitated person, an alleged
incapacitated person, or a disabled person who is not an
incapacitated person:
(1) the guardian of the incapacitated person;
(2) a person who has filed an application for the
appointment of a guardian for the alleged incapacitated person;
(3) an attorney ad litem or guardian ad litem
appointed to represent:
(A) the incapacitated person who is a ward or
that person's interests; or
(B) the alleged incapacitated person who does not
have a guardian; or
(4) the disabled person [as the beneficiary].
SECTION 40. Subsection (i), Section 25.0022, Government
Code, is amended to read as follows:
(i) A judge assigned under this section has the
jurisdiction, powers, and duties given by Sections 4A, 4C, 4F, 4G,
4H, 5B, 605, 607A, 607B, 607D, 607E [606, 607], and 608, Texas
Probate Code, to statutory probate court judges by general law.
SECTION 41. Subsection (c), Section 25.1132, Government
Code, is amended to read as follows:
(c) A county court at law in Hood County has concurrent
jurisdiction with the district court in:
(1) civil cases in which the matter in controversy
exceeds $500 but does not exceed $250,000, excluding interest;
(2) family law cases and related proceedings;
(3) contested probate matters under Section 4D(a),
Texas Probate Code; and
(4) contested [guardianship] matters in guardianship
proceedings under Section 607B(a) [606(b)], Texas Probate Code.
SECTION 42. Notwithstanding the transfer of Sections 606
and 607, Texas Probate Code, to the Estates Code and redesignation
as Sections 606 and 607 of that code effective January 1, 2014, by
Section 5, Chapter 680 (H.B. 2502), Acts of the 81st Legislature,
Regular Session, 2009, Sections 606 and 607, Texas Probate Code,
are repealed.
SECTION 43. (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 605, 608, and 609, Texas Probate Code, as
amended by this Act, and Sections 606A, 607A, 607B, 607C, 607D, and
607E, Texas Probate Code, as added by this Act, apply only to an
action filed or a proceeding commenced on or after the effective
date of this Act. An action filed or proceeding commenced before
the effective date of this Act is governed by the law in effect on
the date the action was filed or the proceeding was commenced, and
the former law is continued in effect for that purpose.
(c) Section 652, Texas Probate Code, as added by this Act,
applies to a guardianship matter that is pending or commenced on or
after the effective date of this Act.
(d) Sections 867, 868, 868C, 869, 870, 871, and 873, Texas
Probate Code, as amended by this Act, and Section 870A, Texas
Probate Code, as added by this Act, apply only to an application for
the creation, modification, or termination of a management trust
under Subpart N, Part 4, Chapter XIII, Texas Probate Code, that is
filed on or after the effective date of this Act. An application
described by this subsection 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.
(e) Sections 910 and 911, Texas Probate Code, as amended by
this Act, apply only to an application for the creation of a pooled
trust subaccount under Subpart I, Part 5, Chapter XIII, Texas
Probate Code, that is filed on or after the effective date of this
Act. An application described by this subsection 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 44. This Act takes effect September 1, 2011.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1196 passed the Senate on
May 3, 2011, by the following vote: Yeas 31, Nays 0; and that the
Senate concurred in House amendment on May 27, 2011, by the
following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1196 passed the House, with
amendment, on May 23, 2011, by the following vote: Yeas 142,
Nays 0, one present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor