Bill Text: TX SB12 | 2023 | 88th Legislature 2nd Special Session | Introduced

Bill Title: Relating to guardianships for persons who are incapacitated; changing a fee.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2023-06-30 - Filed [SB12 Detail]

Download: Texas-2023-SB12-Introduced.html
 
 
  By: Zaffirini S.B. No. 12
 
 
 
   
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to guardianships for persons who are incapacitated;
  changing a fee.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 1002, Estates Code, is amended by adding
  Section 1002.0265 to read as follows:
         Sec. 1002.0265.  QUALIFIED DELIVERY METHOD. "Qualified
  delivery method" means delivery by:
               (1)  hand delivery by courier, with courier's proof of
  delivery receipt;
               (2)  certified or registered mail, return receipt
  requested, with return receipt; or
               (3)  a private delivery service designated as a
  designated delivery service by the United States Secretary of the
  Treasury under Section 7502(f)(2), Internal Revenue Code of 1986,
  with proof of delivery receipt.
         SECTION 2.  Section 1023.002(c), Estates Code, is amended to
  read as follows:
         (c)  If it appears to the court at any time before the
  guardianship is closed that the proceeding was commenced in a court
  that did not have venue over the proceeding, the court shall, on the
  application of any interested person, transfer the proceeding to
  the proper county in the manner prescribed by Section 1023.006.
         SECTION 3.  Sections 1023.004(a) and (c), Estates Code, are
  amended to read as follows:
         (a)  On filing an application or on motion of a court to
  transfer a guardianship to another county under Section 1023.002 or
  1023.003, the sureties on the bond of the guardian shall be cited by
  a qualified delivery method [personal service] to appear and show
  cause why the guardianship should not be transferred.
         (c)  If a court made a motion to transfer a guardianship, the
  guardian shall be given notice by a qualified delivery method
  [certified mail] to appear and show cause why the guardianship
  should not be transferred.
         SECTION 4.  Section 1023.005(c), Estates Code, is amended to
  read as follows:
         (c)  On receipt of an order described by Subsection (a), the
  clerk of the court to which the guardianship is transferred
  [county] shall accept the transfer of the guardianship.
         SECTION 5.  Section 1023.006, Estates Code, is amended to
  read as follows:
         Sec. 1023.006.  TRANSFER OF RECORD. (a) When an order of
  transfer is made under Section 1023.002 or 1023.005, the clerk of
  the court transferring a proceeding shall, using the electronic
  filing system established under Section 72.031, Government Code,
  send to the proper court in the county to which the transfer is
  made:
               (1)  a transfer certificate and certified index of
  transferred documents;
               (2)  a copy of each order, including a copy of the order
  of transfer signed by the transferring court;
               (3)  a copy of the original papers filed in the
  transferring court, including any papers previously received on
  transfer from a court in another county;
               (4)  a copy of the transfer certificate and certified
  index of transferred documents from each previous transfer, if
  applicable; and
               (5)  a bill of any costs that have accrued in the
  transferring court.
         (b)  The clerk of the transferring court shall use the
  standardized transfer certificate and index of transferred
  documents form created by the Office of Court Administration of the
  Texas Judicial System under Section 72.037, Government Code, when
  transferring a proceeding under this section.
         (c)  The clerk of the transferring court shall keep a copy of
  transferred pleadings, orders, and all other papers filed into the
  case record.
         (d)  The clerk of the transferee court shall, subject to
  Section 1023.005, accept the documents transferred under
  Subsection (a) and docket the case.
         (e)  The clerk of the transferee court shall physically or
  electronically mark or stamp the transfer certificate and index of
  transferred documents to evidence the date and time of acceptance
  under Subsection (c) but may not physically or electronically mark
  or stamp any other document transferred under Subsection (a).
         (f)  Sections 80.001 and 80.002, Government Code, do not
  apply to the transfer of documents under this section [shall record
  any unrecorded papers of the guardianship required to be
  recorded.  On payment of the clerk's fee, the clerk shall transmit
  in electronic or paper form to the county clerk of the county to
  which the guardianship was ordered transferred:
               [(1)  the case file of the guardianship proceedings;
  and
               [(2)  a certified copy of the index of the guardianship
  records].
         SECTION 6.  Section 1023.007, Estates Code, is amended to
  read as follows:
         Sec. 1023.007.  TRANSFER EFFECTIVE.  The order transferring
  a guardianship does not take effect until:
               (1)  the case file and a certified copy of the index
  required by Section 1023.006 are filed in electronic or paper form
  in the office of the county clerk of the county to which the
  guardianship was ordered transferred; and
               (2)  a certificate under the court's [clerk's] official
  seal and reporting the filing of the case file and a certified copy
  of the index is filed using the electronic filing system
  established under Section 72.031, Government Code, [in electronic
  or paper form] in the court ordering the transfer by the county
  clerk of the county to which the guardianship was ordered
  transferred.
         SECTION 7.  Chapter 1023, Estates Code, is amended by adding
  Section 1023.0071 to read as follows:
         Sec. 1023.0071.  TRANSFER FEE. (a) The fee for filing a
  guardianship case transferred from another county under this
  chapter in which the guardian has previously been appointed and
  qualified in accordance with this title is $45 payable to the clerk
  of the court to which the case is transferred. No portion of this
  fee may be sent to the state.
         (b)  A party may not be assessed any other filing fee by the
  clerk of the court to which the guardianship is transferred in
  connection with the filing and docketing of the transferred case.
         (c)  To the extent that this section conflicts with another
  state statute, the Texas Rules of Civil Procedure, or other rules,
  this section prevails.
         SECTION 8.  Section 1105.002(a), Estates Code, is amended to
  read as follows:
         (a)  Except as provided by Subsection (b), a guardian is
  considered to have qualified when the guardian has:
               (1)  taken and filed the oath, or made and filed the
  declaration, required under Section 1105.051;
               (2)  given the required bond;
               (3)  [filed the bond with the clerk; and
               [(4)]  obtained the judge's approval of the bond; and
               (4)  filed the bond with the clerk.
         SECTION 9.  Section 1105.157, Estates Code, is amended by
  amending Subsections (a) and (d) and adding Subsection (d-1) to
  read as follows:
         (a)  Instead of giving a surety or sureties on a bond, or to
  reduce the amount of a bond, the guardian of an estate may deposit
  the guardian's own cash or securities acceptable to the court with:
               (1)  a financial institution as defined by Section
  201.101, Finance Code, that has its main office or a branch office
  in this state; or
               (2)  the registry of the court, for which the clerk of
  the court shall issue a receipt.
         (d)  A receipt issued by a depository under Subsection (c) or
  a record of deposit to the registry of the court must be attached to
  the guardian's bond and must be in substantially the following
  form:
  The State of Texas
  County of (insert name of county)
         Know all persons by these presents that I/we, (name
  of each principal), as principal, have deposited cash or securities
  as evidenced by the attached receipt or record of deposit issued by  
  (name of depository where cash or securities are deposited or
  the name of the court) on (date of deposit), are held and
  firmly bound to the judge of (insert reference to appropriate
  judge), and that judge's successors in office, in the sum of $ ,
  having been so deposited; conditioned that the above bound
  principal or principals, appointed by the judge as guardian or
  temporary guardian of the person or of the estate, or both, of  
  (name of ward and whether the person is a minor or is an
  incapacitated person other than a minor), shall well and truly
  perform all of the duties required of the guardian or temporary
  guardian by law under appointment.
         (d-1)  The guardian's bond and depository receipt, if
  applicable, shall [and] be delivered to and filed by the county
  clerk after the bond [receipt] is approved by the judge.
         SECTION 10.  Section 1106.001(a), Estates Code, is amended
  to read as follows:
          (a)  When a person who is appointed guardian has qualified
  under Section 1105.002, the clerk shall issue to the guardian a
  certificate under the court's seal stating:
               (1)  the fact of the appointment and of the
  qualification;
               (2)  the date of the appointment and of the
  qualification; and
               (3)  the date the letters of guardianship expire.
         SECTION 11.  Section 1106.005, Estates Code, is amended to
  read as follows:
         Sec. 1106.005.  EFFECT OF LETTERS [OR
  CERTIFICATE].  (a)  Letters of guardianship [or a certificate]
  issued as prescribed by [under] Section 1106.001 under the court's
  seal by [of] the clerk of the court that granted the letters are
  [is] sufficient evidence of:
               (1)  the appointment and qualification of the guardian;
  and
               (2)  the date of qualification.
         (b)  The court order that appoints the guardian is evidence
  of the authority granted to the guardian and of the scope of the
  powers and duties that the guardian may exercise only after the date
  letters of guardianship [or a certificate has] have been issued
  under Section 1106.001.
         SECTION 12.  Section 1151.051(c), Estates Code, is amended
  to read as follows:
         (c)  A guardian of the person has:
               (1)  the right to have physical possession of the ward
  and to establish the ward's legal domicile;
               (2)  the duty to provide care, supervision, and
  protection for the ward;
               (3)  the duty to provide the ward with clothing, food,
  medical care, and shelter;
               (4)  the power to consent to medical, psychiatric, and
  surgical treatment other than the inpatient psychiatric commitment
  of the ward;
               (5)  on application to and order of the court, 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 ward as defined by
  that section be paid directly to the trust, solely for the purpose
  of the ward's eligibility for medical assistance under Chapter 32,
  Human Resources Code; [and]
               (6)  the duty to notify the court, as soon as
  practicable, if the ward has died or is admitted to a medical
  facility for acute care for a period of three or more days;
               (7)  the duty to notify the court not later than the
  30th day after the date the ward's residence or address has changed;
               (8)  the duty to notify the court not later than the
  30th day after the date of a change in the guardian's residence,
  address, phone number, or any other information used by the court to
  contact the guardian; and
               (9)  the power to sign documents necessary or
  appropriate to facilitate employment of the ward if:
                     (A)  the guardian was appointed with full
  authority over the person of the ward under Section 1101.151; or
                     (B)  the power is specified in the court order
  appointing the guardian with limited powers over the person of the
  ward under Section 1101.152.
         SECTION 13.  Section 1155.151(a), Estates Code, is amended
  to read as follows:
         (a)  In a guardianship proceeding, the court costs of the
  proceeding, including the costs described by Subsection (a-1),
  shall, except as provided by Subsection (c), be paid as follows, and
  the court shall issue the judgment accordingly:
               (1)  out of the guardianship estate, if a guardian of
  the estate has been created for the benefit of the ward and the
  court determines it is in the ward's best interest;
               (2)  out of the management trust, if a management trust
  has been created for the benefit of the ward under Chapter 1301 and
  the court determines it is in the ward's best interest;
               (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)  there is no guardianship estate or [no]
  management trust that has been created for the ward's benefit; or
                     (B)  the assets of the guardianship estate or
  management trust, as appropriate, are insufficient to pay the
  costs; or
               (4)  out of the county treasury if:
                     (A)  there is no guardianship estate or management
  trust or the assets of the guardianship 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.
         SECTION 14.  Section 1156.052, Estates Code, is amended to
  read as follows:
         Sec. 1156.052.  ALLOWANCE FOR WARD'S SPOUSE, MINOR CHILDREN,
  OR INCAPACITATED ADULT CHILDREN [DEPENDENT].  (a)  Subject to
  Section 1156.051 and on application to the court, the court may
  order the guardian of the estate of a ward to spend money from the
  ward's estate for the education and maintenance of the ward's
  spouse, minor children, or incapacitated adult children
  [dependent].
         (b)  In determining whether to order the expenditure of money
  from a ward's estate for the ward's spouse, minor children, or
  incapacitated adult children [dependent], as appropriate, under
  this section, the court shall consider:
               (1)  the circumstances of the ward, the ward's spouse,
  and the ward's minor children and incapacitated adult children
  [dependents];
               (2)  the ability and duty of the ward's spouse to
  support himself or herself and the ward's minor children or
  incapacitated adult children [dependent];
               (3)  the size of the ward's estate;
               (4)  a beneficial interest the ward or the ward's
  spouse, minor children, or incapacitated adult children have [or
  dependent has] in a trust; and
               (5)  an existing estate plan, including a trust or
  will, that provides a benefit to the ward's spouse, minor children,
  or incapacitated adult children [dependent].
         (c)  A person who makes an application to the court under
  this section shall send [mail] notice of the application by a
  qualified delivery method [certified mail] to all interested
  persons.
         (d)  Copies of the notices sent under Subsection (c) must be
  filed with the court with a copy of the proof of delivery receipt
  for each notice sent.
         SECTION 15.  Section 1203.006, Estates Code, is amended to
  read as follows:
         Sec. 1203.006.  REQUIREMENTS FOR DISCHARGE.  (a)  A
  guardian applying to resign may not be discharged until:
               (1)  the resignation application has been heard;
               (2)  the exhibit and final account or report required
  under Section 1203.001 has been examined, settled, and approved;
  and
               (3)  the guardian [applicant] has satisfied the court
  that the guardian [applicant] has:
                     (A)  delivered any estate property remaining in
  the guardian's [applicant's] possession; or
                     (B)  complied with all court orders relating to
  the guardian's [applicant's] trust as guardian.
         (b)  When a guardian applying to resign has fully complied
  with the court orders, the court shall enter an order:
               (1)  accepting the resignation; [and]
               (2)  discharging the guardian;
               (3)  canceling the letters issued to the guardian; and
               (4)  [applicant and,] if the guardian [applicant] is
  under bond, discharging and releasing the [applicant's] sureties on
  the guardian's bond.
         SECTION 16.  Section 1204.105, Estates Code, is amended by
  adding Subsection (h) to read as follows:
         (h)  The guardian of the estate shall file an affidavit sworn
  to by the guardian or a certificate signed by the guardian's
  attorney stating:
               (1)  the name of each person to whom citation was served
  under this section, indicating the method of service;
               (2)  the name of each person executing a waiver of
  citation under Subsection (d); and
               (3)  that each person whose whereabouts are known or
  can be reasonably ascertained who is entitled to citation under
  this section was provided a copy of the account for final
  settlement, indicating the method of delivery for each person to
  whom a copy was provided.
         SECTION 17.  Section 1204.151, Estates Code, is amended to
  read as follows:
         Sec. 1204.151.  DISCHARGE OF GUARDIAN WHEN NO ESTATE
  PROPERTY REMAINS.  The court shall enter an order discharging a
  guardian from the guardian's trust, canceling the letters issued to
  the guardian of the estate, and closing the guardianship estate if,
  on final settlement of the estate, none of the estate remains in the
  guardian's possession.
         SECTION 18.  Section 1204.152, Estates Code, is amended to
  read as follows:
         Sec. 1204.152.  DISCHARGE OF GUARDIAN WHEN ESTATE FULLY
  ADMINISTERED.  The court shall enter an order discharging a
  guardian of the estate from the guardian's trust, canceling the
  letters issued to the guardian of the estate, and declaring the
  estate closed when:
               (1)  the guardian has fully administered the estate in
  accordance with this title and the court's orders;
               (2)  the guardian's account for final settlement has
  been approved; and
               (3)  the guardian has delivered all of the estate
  remaining in the guardian's possession to any person entitled to
  receive the estate.
         SECTION 19.  Section 1251.005(a), Estates Code, is amended
  to read as follows:
         (a)  On the filing of an application for temporary
  guardianship, the court clerk shall issue:
               (1)  citation to be personally served on:
                     (A)  the proposed ward; and
                     (B)  the proposed temporary guardian named in the
  application, if that person is not the applicant; and
               (2)  notice to be served in the manner provided under
  Rule 21a, Texas Rules of Civil Procedure, on the proposed ward's
  appointed attorney.
         SECTION 20.  Section 1023.008, Estates Code, is repealed.
         SECTION 21.  (a) Except as otherwise provided by this
  section, the changes in law made by this Act apply to a guardianship
  created before, on, or after the effective date of this Act.
         (b)  Sections 1023.002(c), 1023.004(a) and (c), 1023.005(c),
  1023.006, and 1023.007, Estates Code, as amended by this Act, and
  Section 1023.0071, Estates Code, as added by this Act, apply only to
  an application filed or motion made to transfer a guardianship on or
  after the effective date of this Act.
         (c)  Sections 1023.006, 1156.052, and 1251.005(a), Estates
  Code, as amended by this Act, apply only to an application filed on
  or after the effective date of this Act. An application 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 22.  This Act takes effect September 1, 2023.

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