Bill Text: TX SB2016 | 2017-2018 | 85th Legislature | Introduced
Bill Title: Relating to parental administrations for certain adults with intellectual disabilities and the prosecution of a related criminal offense.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2017-04-18 - Co-author authorized [SB2016 Detail]
Download: Texas-2017-SB2016-Introduced.html
85R7236 KFF-F | ||
By: Creighton | S.B. No. 2016 |
|
||
|
||
relating to parental administrations for certain adults with | ||
intellectual disabilities and the prosecution of a related criminal | ||
offense. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. 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; [ |
||
(9) establishment of alternate forms of | ||
decision-making based on person-centered planning; and | ||
(10) appointment of a parental administrator under | ||
Chapter 1359. | ||
SECTION 2. 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 1359.001, in a proceeding for a parental administration | ||
under Chapter 1359. | ||
SECTION 3. 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 IF | ||
ELIGIBLE FOR PARENTAL ADMINISTRATION. On the application of a | ||
parent, as defined by Section 1359.001, a court with jurisdiction | ||
over a guardianship of the person may terminate the guardianship on | ||
a finding that the ward qualifies as an incapacitated adult under | ||
Chapter 1359 and appoint a parental administrator of the | ||
incapacitated adult under that chapter. | ||
SECTION 4. Subtitle I, Title 3, Estates Code, is amended by | ||
adding Chapter 1359 to read as follows: | ||
CHAPTER 1359. PARENTAL ADMINISTRATION | ||
SUBCHAPTER A. GENERAL PROVISIONS RELATING TO APPOINTMENT OF | ||
PARENTAL ADMINISTRATOR | ||
Sec. 1359.001. DEFINITIONS. (a) In this chapter: | ||
(1) "Incapacitated adult" means a person who is 18 | ||
years of age or older or will be 18 years of age within 180 days of | ||
the date of an application under this chapter who, because of a | ||
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. | ||
(2) "Intellectual disability" has the meaning | ||
assigned by Section 591.003, Health and Safety Code. | ||
(3) "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. | ||
(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. 1359.002. APPLICABILITY. This chapter applies only | ||
to: | ||
(1) an incapacitated adult whose incapacity has | ||
existed since the person was a minor; and | ||
(2) the parent of an incapacitated adult. | ||
SUBCHAPTER B. APPOINTMENT OF PARENTAL ADMINISTRATOR | ||
Sec. 1359.051. PARENTAL ADMINISTRATOR. The parent of a | ||
proposed incapacitated adult may in accordance with this chapter | ||
seek appointment as the parental administrator of that adult with | ||
the rights and duties granted under Section 1359.061. | ||
Sec. 1359.052. APPLICATION; VENUE. (a) A parent of a | ||
proposed incapacitated adult may apply to the court for the | ||
appointment of a parental administrator. | ||
(b) Subject to Section 1359.053, the application must be | ||
under oath and in writing and must include: | ||
(1) the proposed incapacitated adult's name, date of | ||
birth, and address; | ||
(2) the name, relationship, and address of the person | ||
the applicant seeks to have appointed as parental administrator; | ||
(3) a description of the nature of the proposed | ||
incapacitated adult's alleged incapacity and a statement that the | ||
incapacity existed during minority; | ||
(4) a statement that the proposed incapacitated adult | ||
is totally without capacity to care for himself or herself; | ||
(5) a statement of the facts requiring the appointment | ||
of a parental administrator; | ||
(6) a statement of the nature and description of any | ||
existing guardianship of the proposed incapacitated adult; | ||
(7) a statement as to whether the proposed | ||
incapacitated adult was the subject of a conservatorship proceeding | ||
and, if so, the name of the conservator; | ||
(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 | ||
parents and, for each parent, the 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. | ||
(c) Venue for a proceeding for the appointment of a parental | ||
administrator is the same as venue for a proceeding for the | ||
appointment of a guardian. | ||
Sec. 1359.053. CONFIDENTIALITY OF CERTAIN ADDRESSES. An | ||
application filed under Section 1359.052 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. 1359.054. 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) The provisions of Chapter 1054 applicable to the term of | ||
appointment, right to access records, and duties of an attorney ad | ||
litem appointed in a guardianship proceeding apply to an attorney | ||
ad litem appointed under this section in a proceeding for the | ||
appointment of a parental administrator. | ||
Sec. 1359.055. DETERMINATION OF INCAPACITY: EXAMINATIONS. | ||
(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, including whether the incapacitated adult's | ||
incapacity existed when the incapacitated adult was a minor; | ||
(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) 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). | ||
Sec. 1359.056. 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, constable, or | ||
other person authorized by law to serve process. | ||
(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 | ||
1359.052(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. 1359.057. 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; | ||
and | ||
(B) care for his or her own physical health; | ||
(2) whether the incapacity existed when the proposed | ||
incapacitated adult was a minor; and | ||
(3) the parental status of the applicant seeking to be | ||
appointed parental administrator. | ||
(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. | ||
(d) A proposed incapacitated adult is entitled to a jury | ||
trial on timely request. | ||
Sec. 1359.058. 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. | ||
Sec. 1359.059. FINDINGS AND PROOF REQUIRED. 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 adult; | ||
(2) the incapacitated adult's incapacity existed when | ||
the incapacitated adult was a minor; and | ||
(3) the person to be appointed parental administrator | ||
is suitable to act as parental administrator. | ||
Sec. 1359.060. APPOINTMENT OF PARENTAL ADMINISTRATOR. | ||
After making the findings required by Section 1359.059, the court | ||
may appoint a parent of the person found to be an incapacitated | ||
adult as parental administrator. | ||
Sec. 1359.061. RIGHTS AND DUTIES OF PARENTAL ADMINISTRATOR. | ||
(a) A parental administrator has the following rights and duties: | ||
(1) the right to have physical possession of the | ||
incapacitated adult and to establish the incapacitated adult's | ||
legal domicile; | ||
(2) the duty to provide care, supervision, and | ||
protection for the incapacitated adult; | ||
(3) the duty to provide the incapacitated adult with | ||
clothing, food, medical care, and shelter; | ||
(4) the power to consent to medical, psychiatric, and | ||
surgical treatment of the incapacitated adult; | ||
(5) 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; and | ||
(6) the power to sign documents necessary or | ||
appropriate to facilitate employment of the incapacitated adult. | ||
(b) With respect to the rights and duties described under | ||
Subsection (a), a parental administrator has the same authority as | ||
a guardian of the person under law. | ||
SUBCHAPTER C. REPORTING | ||
Sec. 1359.101. 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 report on the | ||
condition of the incapacitated adult. The parental administrator | ||
must include in the report a statement regarding: | ||
(1) whether the incapacitated adult is receiving | ||
residential care in a public or private residential care facility; | ||
and | ||
(2) if the incapacitated adult is receiving care in a | ||
residential care facility, the necessity for continued care in the | ||
facility. | ||
SUBCHAPTER D. INVESTIGATION OF ALLEGED ABUSE, NEGLECT, OR | ||
EXPLOITATION CONCERNING INCAPACITATED ADULT | ||
Sec. 1359.151. 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. 1359.152. 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 E. REMOVAL OR TERMINATION OF POWERS OF PARENTAL | ||
ADMINISTRATOR | ||
Sec. 1359.201. 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 1359.101; | ||
(2) is proven to have been guilty of gross misconduct | ||
or gross mismanagement in the performance of duties as parental | ||
administrator; | ||
(3) becomes an incapacitated person; | ||
(4) is convicted of an offense and subsequently | ||
confined or imprisoned; or | ||
(5) for any other reason becomes unable to properly | ||
perform the parental administrator's duties. | ||
Sec. 1359.202. TERMINATION OF PARENTAL ADMINISTRATOR'S | ||
RIGHTS AND POWERS ON CONVERSION TO GUARDIANSHIP. The rights and | ||
powers of a parental administrator terminate when a court orders | ||
the parental administration converted into a guardianship of the | ||
person. | ||
Sec. 1359.203. 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 | ||
1359.201; or | ||
(2) subject to Subsection (c), convert a parental | ||
administration for an incapacitated adult to a guardianship of the | ||
person for the incapacitated adult. | ||
(b) In a proceeding for the removal of a parental | ||
administrator initiated under Subsection (a)(1), the court shall | ||
have the parental administrator cited by personal service to appear | ||
before the court. The citation 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. | ||
(c) Notice of a proceeding to convert a parental | ||
administration and appoint a guardian of the person initiated under | ||
Subsection (a)(2) must be provided in the manner required by | ||
Chapter 1051. | ||
(d) Notwithstanding the requirements of Section 1101.104, | ||
an application for the conversion of a parental administration and | ||
the appointment of a guardian of the person does not require a | ||
written letter or certificate from a physician licensed in this | ||
state. | ||
SECTION 5. The heading to Section 25.10, Penal Code, is | ||
amended to read as follows: | ||
Sec. 25.10. INTERFERENCE WITH CERTAIN POSSESSORY RIGHTS [ |
||
|
||
SECTION 6. Sections 25.10(a) and (b), Penal Code, are | ||
amended to read as follows: | ||
(a) In this section: | ||
(1) "Incapacitated adult" has the meaning assigned by | ||
Section 1359.001, 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 [ |
||
|
||
(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 | ||
1359.061, Estates Code. | ||
(2) "Ward" has the meaning assigned by Section | ||
1002.030 [ |
||
(b) A person commits an offense if the person takes, | ||
retains, or conceals a ward or incapacitated adult when the person | ||
knows that the person's taking, retention, or concealment | ||
interferes with a possessory right with respect to the ward or | ||
incapacitated adult. | ||
SECTION 7. To the extent of any conflict, this Act prevails | ||
over another Act of the 85th Legislature, Regular Session, 2017, | ||
relating to nonsubstantive additions to and corrections in enacted | ||
codes. | ||
SECTION 8. 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. | ||
SECTION 9. This Act takes effect September 1, 2017. |