Bill Text: TX SB220 | 2011-2012 | 82nd Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to guardianships, including the assessment of prospective wards for, and the provision of, guardianship services by the Department of Aging and Disability Services.
Spectrum: Bipartisan Bill
Status: (Passed) 2011-06-17 - Effective on 9/1/11 [SB220 Detail]
Download: Texas-2011-SB220-Introduced.html
Bill Title: Relating to guardianships, including the assessment of prospective wards for, and the provision of, guardianship services by the Department of Aging and Disability Services.
Spectrum: Bipartisan Bill
Status: (Passed) 2011-06-17 - Effective on 9/1/11 [SB220 Detail]
Download: Texas-2011-SB220-Introduced.html
82R2695 KLA-D | ||
By: Nelson | S.B. No. 220 |
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relating to guardianships, including the assessment of prospective | ||
wards for, and the provision of, guardianship services by the | ||
Department of Aging and Disability Services. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Sections 161.109(a) and (b), Human Resources | ||
Code, are amended to read as follows: | ||
(a) The department shall have access to all of the records | ||
and documents concerning an individual who is referred for | ||
guardianship services or to whom guardianship services are provided | ||
under this subchapter that are necessary to the performance of the | ||
department's duties under this subchapter, including: | ||
(1) client-identifying information; and | ||
(2) medical, psychological, educational, financial, | ||
and [ |
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(b) The department is exempt from the payment of a fee | ||
otherwise required or authorized by law to obtain a financial or | ||
medical record, including a mental health record, from any source | ||
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related to [ |
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services conducted by the department or the provision of | ||
guardianship services by the department. | ||
SECTION 2. Section 161.111, Human Resources Code, is | ||
amended by adding Subsections (e) and (f) to read as follows: | ||
(e) To the extent consistent with department policies and | ||
procedures, the department on request may release confidential | ||
information in the record of an individual who is assessed by the | ||
department or is a former ward of the department to: | ||
(1) the individual; | ||
(2) the individual's guardian; or | ||
(3) an executor or administrator of the individual's | ||
estate. | ||
(f) Before releasing confidential information under | ||
Subsection (e), the department shall edit the information to | ||
protect the identity of the reporter to the Department of Family and | ||
Protective Services and to protect any other individual whose life | ||
or safety may be endangered by the release. A release of | ||
information under Subsection (e) does not constitute a release for | ||
purposes of waiving the confidentiality of the information | ||
released. | ||
SECTION 3. Subchapter E, Chapter 161, Human Resources Code, | ||
is amended by adding Section 161.114 to read as follows: | ||
Sec. 161.114. USE OF VOLUNTEERS. (a) In this section, | ||
"volunteer" has the meaning assigned by Section 161.113. | ||
(b) The department shall encourage the involvement of | ||
volunteers in guardianships in which the department serves as | ||
guardian of the person or estate, or both. To encourage that | ||
involvement, the department shall identify issues and tasks with | ||
which a volunteer could assist the department in a guardianship. | ||
SECTION 4. Section 633(d), Texas Probate Code, is amended | ||
to read as follows: | ||
(d) The applicant shall mail a copy of the application for | ||
guardianship and a notice containing the information required in | ||
the citation issued under Subsection (b) of this section by | ||
registered or certified mail, return receipt requested, or by any | ||
other form of mail that provides proof of delivery, to the following | ||
persons, if their whereabouts are known or can be reasonably | ||
ascertained: | ||
(1) all adult children of a proposed ward; | ||
(2) all adult siblings of a proposed ward; | ||
(3) the administrator of a nursing home facility or | ||
similar facility in which the proposed ward resides; | ||
(4) the operator of a residential facility in which | ||
the proposed ward resides; | ||
(5) a person whom the applicant knows to hold a power | ||
of attorney signed by the proposed ward; | ||
(6) a person designated to serve as guardian of the | ||
proposed ward by a written declaration under Section 679 of this | ||
code, if the applicant knows of the existence of the declaration; | ||
(7) a person designated to serve as guardian of the | ||
proposed ward in the probated will of the last surviving parent of | ||
the ward; | ||
(8) a person designated to serve as guardian of the | ||
proposed ward by a written declaration of the proposed ward's last | ||
surviving parent, if the declarant is deceased and the applicant | ||
knows of the existence of the declaration; and | ||
(9) each person named as another relative within the | ||
third degree by consanguinity [ |
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guardianship as required by Section 682(10) or (12) of this code if | ||
the proposed ward's spouse and each of the proposed ward's parents, | ||
adult siblings, and adult children are deceased or there is no | ||
spouse, parent, adult sibling, or adult child. | ||
SECTION 5. Section 665A, Texas Probate Code, is amended to | ||
read as follows: | ||
Sec. 665A. PAYMENT FOR PROFESSIONAL SERVICES. The court | ||
shall order the payment of a fee set by the court as compensation to | ||
the attorneys, mental health professionals, and interpreters | ||
appointed under this chapter, as applicable, to be taxed as costs in | ||
the case. The court may allocate amounts taxed as costs under this | ||
section among the parties as the court finds is just and equitable. | ||
If after examining the proposed ward's assets the court determines | ||
the proposed ward is unable to pay for costs allocated to the | ||
proposed ward [ |
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SECTION 6. Section 665B, Texas Probate Code, is amended by | ||
amending Subsection (a) and adding Subsection (a-1) to read as | ||
follows: | ||
(a) A court that creates a guardianship or creates a | ||
management trust under Section 867 of this code for a ward under | ||
this chapter, on request of a person who filed an application to be | ||
appointed guardian of the proposed ward, an application for the | ||
appointment of another suitable person as guardian of the proposed | ||
ward, or an application for the creation of the management trust, | ||
may authorize compensation of an attorney who represents the person | ||
who filed the application at the application hearing, regardless of | ||
whether the person is appointed the ward's guardian or whether a | ||
management trust is created, from: | ||
(1) subject to Subsection (a-1) of this section, the | ||
parties to the guardianship proceeding, allocated as the court | ||
finds is just and equitable; or | ||
(2) subject to Subsection (a-1) of this section, | ||
available funds of the [ |
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created. | ||
(a-1) The court may authorize amounts allocated to the | ||
ward's estate under Subsection (a)(1) of this section or amounts to | ||
be paid from available funds of the management trust as provided by | ||
Subsection (a)(2) of this section to instead be paid from [ |
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[ |
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(1) [ |
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management trust[ |
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[ |
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(2) [ |
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for that purpose. | ||
SECTION 7. The heading to Section 669, Texas Probate Code, | ||
is amended to read as follows: | ||
Sec. 669. COSTS IN [ |
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GENERALLY. | ||
SECTION 8. Section 669(a), Texas Probate Code, is amended | ||
to read as follows: | ||
(a) Except as provided by Subsection (b) or another | ||
provision of this code, in a guardianship matter, the cost of the | ||
proceeding, including the cost of the guardian ad litem or court | ||
visitor, shall be paid by the parties to the proceeding, including | ||
by the ward out of the guardianship estate. The court shall | ||
allocate the assessed costs among the parties as the court finds is | ||
just and equitable. If [ |
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insufficient to pay for the cost of the proceeding allocated to the | ||
ward, that amount [ |
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the county treasury, and the judgment of the court shall be issued | ||
accordingly. | ||
SECTION 9. Section 682, Texas Probate Code, is amended to | ||
read as follows: | ||
Sec. 682. APPLICATION; CONTENTS. Any person may commence | ||
a proceeding for the appointment of a guardian by filing a written | ||
application in a court having jurisdiction and venue. The | ||
application must be sworn to by the applicant and state: | ||
(1) the name, sex, date of birth, and address of the | ||
proposed ward; | ||
(2) the name, relationship, and address of the person | ||
the applicant desires to have appointed as guardian; | ||
(3) whether guardianship of the person or estate, or | ||
both, is sought; | ||
(4) the nature and degree of the alleged incapacity, | ||
the specific areas of protection and assistance requested, and the | ||
limitation or termination of rights requested to be included in the | ||
court's order of appointment, including a termination of: | ||
(A) the right of a proposed ward who is 18 years | ||
of age or older to vote in a public election; and | ||
(B) the proposed ward's eligibility to hold or | ||
obtain a license to operate a motor vehicle under Chapter 521, | ||
Transportation Code; | ||
(5) the facts requiring that a guardian be appointed | ||
and the interest of the applicant in the appointment; | ||
(6) the nature and description of any guardianship of | ||
any kind existing for the proposed ward in any other state; | ||
(7) the name and address of any person or institution | ||
having the care and custody of the proposed ward; | ||
(8) the approximate value and description of the | ||
proposed ward's property, including any compensation, pension, | ||
insurance, or allowance to which the proposed ward may be entitled; | ||
(9) the name and address of any person whom the | ||
applicant knows to hold a power of attorney signed by the proposed | ||
ward and a description of the type of power of attorney; | ||
(10) if the proposed ward is a minor and if known by | ||
the applicant: | ||
(A) the name of each parent of the proposed ward | ||
and state the parent's address or that the parent is deceased; | ||
(B) the name and age of each sibling, if any, of | ||
the proposed ward and state the sibling's address or that the | ||
sibling is deceased; and | ||
(C) if each of the proposed ward's parents and | ||
adult siblings are deceased, the names and addresses of the | ||
proposed ward's other living relatives who are related to the | ||
proposed ward within the third degree by consanguinity and [ |
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(11) if the proposed ward is a minor, whether the minor | ||
was the subject of a legal or conservatorship proceeding within the | ||
preceding two-year period and, if so, the court involved, the | ||
nature of the proceeding, and the final disposition, if any, of the | ||
proceeding; | ||
(12) if the proposed ward is an adult and if known by | ||
the applicant: | ||
(A) the name of the proposed ward's spouse, if | ||
any, and state the spouse's address or that the spouse is deceased; | ||
(B) the name of each of the proposed ward's | ||
parents and state the parent's address or that the parent is | ||
deceased; | ||
(C) the name and age of each of the proposed | ||
ward's siblings, if any, and state the sibling's address or that the | ||
sibling is deceased; | ||
(D) the name and age of each of the proposed | ||
ward's children, if any, and state the child's address or that the | ||
child is deceased; and | ||
(E) if the proposed ward's spouse and each of the | ||
proposed ward's parents, adult siblings, and adult children are | ||
deceased, or, if there is no spouse, parent, adult sibling, or adult | ||
child, the names and addresses of the proposed ward's other living | ||
relatives who are related to the proposed ward within the third | ||
degree by consanguinity and [ |
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(13) facts showing that the court has venue over the | ||
proceeding; and | ||
(14) if applicable, that the person whom the applicant | ||
desires to have appointed as a guardian is a private professional | ||
guardian who is certified under Subchapter C, Chapter 111, | ||
Government Code, and has complied with the requirements of Section | ||
697 of this code. | ||
SECTION 10. Section 694A(d), Texas Probate Code, is amended | ||
to read as follows: | ||
(d) When an application is filed under this section, | ||
citation shall be served on: | ||
(1) the ward's guardian; | ||
(2) [ |
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applicant; and | ||
(3) the ward's spouse and each of the ward's parents, | ||
adult siblings, and adult children, or if the ward's spouse and each | ||
of the ward's parents, adult siblings, and adult children are | ||
deceased or there is no spouse, parent, adult sibling, or adult | ||
child, each other relative who is related to the ward within the | ||
third degree by consanguinity and who is an adult. | ||
SECTION 11. Sections 695(a) and (b), Texas Probate Code, | ||
are amended to read as follows: | ||
(a) If a guardian dies, resigns, or is removed, the court | ||
may, on application and on service of notice as directed by the | ||
court, appoint a successor guardian. On a finding that a necessity | ||
for the immediate appointment of a successor guardian exists, the | ||
court may appoint a successor guardian without citation or notice, | ||
subject to Section 761(f) of this code, if applicable. | ||
(b) A successor guardian has the powers and rights and is | ||
subject to all of the duties of the preceding guardian, subject to | ||
Section 761(f) of this code, if applicable. | ||
SECTION 12. Section 760, Texas Probate Code, is amended by | ||
adding Subsection (c-1) to read as follows: | ||
(c-1) The sheriff or other officer shall personally serve | ||
the citation issued under Subsection (c) of this section on the | ||
ward's spouse, if any, and each of the ward's parents, if living. | ||
The clerk shall mail a copy of the citation by registered or | ||
certified mail, return receipt requested, to: | ||
(1) each of the ward's adult siblings and adult | ||
children, if any; or | ||
(2) each other relative who is related to the ward | ||
within the third degree by consanguinity and who is an adult if the | ||
ward's spouse and each of the ward's parents, adult siblings, and | ||
adult children are deceased or there is no spouse, parent, adult | ||
sibling, or adult child. | ||
SECTION 13. Section 761, Texas Probate Code, is amended by | ||
amending Subsections (a), (c), and (f) and adding Subsections | ||
(a-1), (b-1), and (c-2) to read as follows: | ||
(a) The court, on its own motion or on motion of any | ||
interested person, including the ward, and without notice, may | ||
remove any guardian[ |
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(1) neglects to qualify in the manner and time | ||
required by law; | ||
(2) fails to return within 30 days after | ||
qualification, unless the time is extended by order of the court, an | ||
inventory of the property of the guardianship estate and list of | ||
claims that have come to the guardian's knowledge; | ||
(3) having been required to give a new bond, fails to | ||
do so within the time prescribed; | ||
(4) absents himself or herself from the state for a | ||
period of three months at one time without permission of the court, | ||
or removes from the state; | ||
(5) cannot be served with notices or other processes | ||
because of the fact that: | ||
(A) the guardian's whereabouts are unknown; | ||
(B) the guardian is eluding service; or | ||
(C) the guardian is a nonresident of this state | ||
who does not have a resident agent to accept service of process in | ||
any guardianship proceeding or other matter relating to the | ||
guardianship; | ||
(6) has misapplied, embezzled, or removed from the | ||
state, or is about to misapply, embezzle, or remove from the state, | ||
all or any part of the property committed to the guardian's care; | ||
(7) has engaged in conduct with respect to the ward | ||
that would be considered to be abuse, neglect, or exploitation, as | ||
those terms are defined by Section 48.002, Human Resources Code, if | ||
engaged in with respect to an elderly or disabled person, as defined | ||
by that section [ |
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(8) has neglected to educate or maintain the ward as | ||
liberally as the means of the ward and the condition of the ward's | ||
estate permit. | ||
(a-1) In a proceeding to remove a guardian under Subsection | ||
(a)(6), (7), or (8) of this section, the court shall appoint a | ||
guardian ad litem as provided by Section 645 of this code and an | ||
attorney ad litem. The attorney ad litem has the duties prescribed | ||
by Section 647 of this code. In the interest of judicial economy, | ||
the court may appoint the same person as guardian ad litem and | ||
attorney ad litem unless a conflict exists between the interests to | ||
be represented by the guardian ad litem and attorney ad litem. | ||
(b-1) The court clerk shall issue notice of an order | ||
rendered by the court removing a guardian under Subsection (a)(1), | ||
(2), (3), (4), (6), (7), or (8) of this section. The notice must: | ||
(1) state the names of the ward and the removed | ||
guardian; | ||
(2) state the date the court signed the order of | ||
removal; and | ||
(3) be personally served on the removed guardian. | ||
(c) The court may remove a guardian on its own motion, or on | ||
the complaint of an interested person, after the guardian has been | ||
cited by personal service to answer at a time and place set in the | ||
notice, when: | ||
(1) sufficient grounds appear to support belief that | ||
the guardian has misapplied, embezzled, or removed from the state, | ||
or that the guardian is about to misapply, embezzle, or remove from | ||
the state, all or any part of the property committed to the care of | ||
the guardian; | ||
(2) the guardian fails to return any account or report | ||
that is required by law to be made; | ||
(3) the guardian fails to obey any proper order of the | ||
court having jurisdiction with respect to the performance of the | ||
guardian's duties; | ||
(4) the guardian is proved to have been guilty of gross | ||
misconduct or mismanagement in the performance of the duties of the | ||
guardian; | ||
(5) the guardian becomes incapacitated, or is | ||
sentenced to the penitentiary, or from any other cause becomes | ||
incapable of properly performing the duties of the guardian's | ||
trust; | ||
(6) the guardian has engaged in conduct with respect | ||
to the ward that would be considered to be abuse, neglect, or | ||
exploitation, as those terms are defined by Section 48.002, Human | ||
Resources Code, if engaged in with respect to an elderly or disabled | ||
person, as defined by that section [ |
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(6-a) the guardian neglects to educate or maintain the | ||
ward as liberally as the means of the ward's estate and the ward's | ||
ability or condition permit; | ||
(7) the guardian interferes with the ward's progress | ||
or participation in programs in the community; | ||
(8) the guardian fails to comply with the requirements | ||
of Section 697 of this code; | ||
(9) the court determines that, because of the | ||
dissolution of the joint guardians' marriage, the termination of | ||
the guardians' joint appointment and the continuation of only one | ||
of the joint guardians as the sole guardian is in the best interest | ||
of the ward; or | ||
(10) the guardian would be ineligible for appointment | ||
as a guardian under Section 681 of this code. | ||
(c-2) In addition to citing the guardian to appear as | ||
required by Subsection (c) or (c-1) of this section, the court clerk | ||
shall issue a notice stating the names of the ward and the guardian | ||
proposed to be removed and the date and location of the hearing on | ||
the proposed removal. The sheriff or other officer shall | ||
personally serve the notice on the ward's spouse, if any, and each | ||
of the ward's parents, if living. The clerk shall mail a copy of the | ||
notice by registered or certified mail, return receipt requested, | ||
to: | ||
(1) each of the ward's adult siblings and adult | ||
children, if any; or | ||
(2) each other relative who is related to the ward | ||
within the third degree by consanguinity and who is an adult if the | ||
ward's spouse and each of the ward's parents, adult siblings, and | ||
adult children are deceased or there is no spouse, parent, adult | ||
sibling, or adult child. | ||
(f) If the necessity exists, the court may immediately | ||
appoint a successor guardian without citation or notice but may not | ||
discharge the person removed as guardian of the estate or release | ||
the person or the sureties on the person's bond until final order or | ||
judgment is rendered on the final account of the guardian. Subject | ||
to an order of the court, a successor guardian has the rights and | ||
powers of the removed guardian, except that a successor | ||
guardianship created under this subsection following the removal of | ||
a guardian under Subsection (a) of this section is considered | ||
temporary and remains in effect only for the period until the court | ||
renders an order under Section 762A of this code, which may not | ||
exceed the period prescribed for a temporary guardianship under | ||
Section 875(h) of this code. | ||
SECTION 14. Section 762, Texas Probate Code, is amended to | ||
read as follows: | ||
Sec. 762. REINSTATEMENT AFTER REMOVAL UNDER CERTAIN | ||
CIRCUMSTANCES. (a) Not later than the 30th [ |
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date the court signs the order of removal, a guardian [ |
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with the court for a hearing to determine whether the guardian | ||
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(b) On the filing of an application for a hearing under this | ||
section, the court clerk shall issue a notice stating that the | ||
application for reinstatement was filed, the name of the ward, and | ||
the name of the applicant. [ |
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persons interested in the estate or welfare of the ward to appear at | ||
the time and place stated in the notice if they wish to contest the | ||
application. | ||
(b-1) The sheriff or other officer shall personally serve | ||
the citation issued under Subsection (b) of this section on the | ||
ward's spouse, if any, and each of the ward's parents, if living. | ||
The court clerk shall mail a copy of the citation by registered or | ||
certified mail, return receipt requested, to: | ||
(1) each of the ward's adult siblings and adult | ||
children, if any; or | ||
(2) each other relative who is related to the ward | ||
within the third degree by consanguinity and who is an adult if the | ||
ward's spouse and each of the ward's parents, adult siblings, and | ||
adult children are deceased or there is no spouse, parent, adult | ||
sibling, or adult child. | ||
(c) The court shall hold a hearing on an application for | ||
reinstatement under this section as soon as practicable after the | ||
application is filed, but not later than the 60th day after the date | ||
the court signed the order of removal. If, at the conclusion of the | ||
[ |
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preponderance of the evidence that the applicant did not engage in | ||
the conduct that directly led to the applicant's removal, the court | ||
shall set aside an order appointing a successor guardian | ||
[ |
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applicant as guardian [ |
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estate. | ||
(d) If the court sets aside the appointment of a successor | ||
guardian [ |
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the successor guardian [ |
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oath, an accounting of the estate and to detail the disposition the | ||
successor has made of the property of the estate. | ||
SECTION 15. Subpart D, Part 4, Chapter XIII, Texas Probate | ||
Code, is amended by adding Section 762A to read as follows: | ||
Sec. 762A. PERMANENT SUCCESSOR GUARDIAN FOLLOWING REMOVAL. | ||
(a) The court shall set a date and location for a hearing regarding | ||
the temporary successor guardian appointed under Section 761(f) of | ||
this code. The hearing must be set for a date that is on or before | ||
the expiration of the period prescribed for a temporary | ||
guardianship under Section 875(h) of this code. If the guardian who | ||
was removed under Section 761 of this code files an application for | ||
reinstatement under Section 762 of this code, the hearings required | ||
by this section and Section 762 must be conducted jointly. | ||
(b) The court clerk shall issue a citation stating the date | ||
and location of the hearing set under Subsection (a) of this | ||
section. The sheriff or other officer shall personally serve the | ||
citation on the ward's spouse, if any, and each of the ward's | ||
parents, if living. The clerk shall mail a copy of the citation by | ||
registered or certified mail, return receipt requested, to: | ||
(1) each of the ward's adult siblings and adult | ||
children, if any; or | ||
(2) each other relative who is related to the ward | ||
within the third degree by consanguinity and who is an adult if the | ||
ward's spouse and each of the ward's parents, adult siblings, and | ||
adult children are deceased or there is no spouse, parent, adult | ||
sibling, or adult child. | ||
(c) At the hearing, the court that removed the guardian and | ||
appointed a temporary successor guardian shall: | ||
(1) if the hearing is conducted jointly with the | ||
hearing under Section 762 of this code, render an order under | ||
Section 762(c) of this code reinstating the removed guardian and | ||
setting aside the order appointing the successor guardian if the | ||
court makes the findings required by that section; | ||
(2) convert the temporary successor guardianship to a | ||
permanent successor guardianship; or | ||
(3) appoint another person as the permanent successor | ||
guardian for the ward. | ||
SECTION 16. The Department of Aging and Disability Services | ||
and the adult protective services division of the Department of | ||
Family and Protective Services shall identify and implement | ||
modifications to investigations of abuse, neglect, and | ||
exploitation conducted under Chapter 48, Human Resources Code, and | ||
the provision of protective and guardianship services under | ||
Chapters 48 and 161, Human Resources Code, to ensure that the | ||
agencies prevent any unnecessary duplication of efforts in | ||
performing their respective responsibilities under those chapters. | ||
SECTION 17. (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 633(d) and 682, Texas Probate Code, as amended | ||
by this Act, apply only to an application for a guardianship filed | ||
on or after the effective date of this Act. An application for a | ||
guardianship 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. | ||
(c) Section 694A(d), Texas Probate Code, as amended by this | ||
Act, applies only to an application for the complete restoration of | ||
a ward's capacity or modification of a guardianship filed on or | ||
after the effective date of this Act. An application for the | ||
complete restoration of a ward's capacity or modification of a | ||
guardianship 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. | ||
(d) Section 760(c-1), Texas Probate Code, as added by this | ||
Act, applies only with respect to a guardian's resignation filed on | ||
or after the effective date of this Act. A guardian's resignation | ||
filed before the effective date of this Act is governed by the law | ||
in effect on the date the resignation was filed, and the former law | ||
is continued in effect for that purpose. | ||
(e) Sections 695, 761, and 762, Texas Probate Code, as | ||
amended by this Act, and Section 762A, Texas Probate Code, as added | ||
by this Act, apply only to a removal of a guardian ordered by a court | ||
on or after the effective date of this Act. A removal of a guardian | ||
ordered by a court before the effective date of this Act is governed | ||
by the law in effect on the date the order was rendered, and the | ||
former law is continued in effect for that purpose. | ||
SECTION 18. This Act takes effect September 1, 2011. |