Bill Text: TX SB23 | 2023 | 88th Legislature 1st 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) 2023-06-19 - Filed [SB23 Detail]
Download: Texas-2023-SB23-Introduced.html
By: Zaffirini | S.B. No. 23 | |
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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. |