Bill Text: TX SB39 | 2017-2018 | 85th Legislature | Enrolled

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Bill Title: Relating to estates and to guardianships, substitutes for guardianships, and durable powers of attorney for persons with disabilities or who are incapacitated.

Sponsorship: Partisan Bill (Democrat 2)

Status: (Passed) 2017-06-09 - Effective on 9/1/17 [SB39 Detail]

Download: Texas-2017-SB39-Enrolled.html

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S.B. No. 39

AN ACT
relating to estates and to guardianships, substitutes for
guardianships, and durable powers of attorney for persons with
disabilities or who are incapacitated.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. (a) Section 361.052, Estates Code, is amended to
read as follows:
Sec. 361.052. REMOVAL WITH NOTICE. (a) The court may
remove a personal representative on the court's own motion, or on
the complaint of any interested person, after the representative
has been cited by personal service to answer at a time and place set
[fixed] in the notice, if:
(1) sufficient grounds appear to support a belief that
the representative has misapplied, embezzled, or removed from the
state, or is about to misapply, embezzle, or remove from the state,
all or part of the property entrusted to the representative's care;
(2) the representative fails to return any account
required by law to be made;
(3) the representative fails to obey a proper order of
the court that has jurisdiction with respect to the performance of
the representative's duties;
(4) the representative is proved to have been guilty
of gross misconduct, or mismanagement in the performance of the
representative's duties;
(5) the representative:
(A) becomes incapacitated;
(B) is sentenced to the penitentiary; or
(C) from any other cause, becomes incapable of
properly performing the duties of the representative's trust; or
(6) the representative, as executor or administrator,
fails to[:
[(A)] make a final settlement by the third
anniversary of the date letters testamentary or of administration
are granted, unless that period is extended by the court on a
showing of sufficient cause supported by oath[; or
[(B) timely file the affidavit or certificate
required by Section 308.004].
(b) If a personal representative, as executor or
administrator, fails to timely file the affidavit or certificate
required by Section 308.004, the court, on the court's own motion,
may remove the personal representative after providing 30 days'
written notice to the personal representative to answer at a time
and place set in the notice, by certified mail, return receipt
requested, to:
(1) the representative's last known address; and
(2) the last known address of the representative's
attorney of record.
(b) Section 404.0035, Estates Code, is amended to read as
follows:
Sec. 404.0035. REMOVAL OF INDEPENDENT EXECUTOR WITH NOTICE.
(a) The probate court, on the court's own motion, may remove an
independent executor appointed under this subtitle after providing
30 days' written notice of the court's intention to the independent
executor, requiring answering at a time and place set in the notice
[of the court's intent to remove the independent executor], by
certified mail, return receipt requested, to the independent
executor's last known address and to the last known address of the
independent executor's attorney of record, if the independent
executor:
(1) neglects to qualify in the manner and time
required by law; [or]
(2) fails to return, before the 91st day after the date
the independent executor qualifies, either an inventory of the
estate property and a list of claims that have come to the
independent executor's knowledge or an affidavit in lieu of the
inventory, appraisement, and list of claims, unless that deadline
is extended by court order; or
(3) fails to timely file the affidavit or certificate
required by Section 308.004.
(b) The probate court, on its own motion or on motion of any
interested person, after the independent executor has been cited by
personal service to answer at a time and place set [fixed] in the
notice, may remove an independent executor when:
(1) the independent executor fails to make an
accounting which is required by law to be made;
(2) [the independent executor fails to timely file the
affidavit or certificate required by Section 308.004;
[(3)] the independent executor is proved to have been
guilty of gross misconduct or gross mismanagement in the
performance of the independent executor's duties;
(3) [(4)] the independent executor becomes an
incapacitated person, or is sentenced to the penitentiary, or from
any other cause becomes legally incapacitated from properly
performing the independent executor's fiduciary duties; or
(4) [(5)] the independent executor becomes incapable
of properly performing the independent executor's fiduciary duties
due to a material conflict of interest.
(c) Section 1023.003, Estates Code, is amended to read as
follows:
Sec. 1023.003. [APPLICATION FOR] TRANSFER OF GUARDIANSHIP
TO ANOTHER COUNTY. (a) When a guardian or any other person desires
to transfer the transaction of the business of the guardianship
from one county to another, the person shall file a written
application in the court in which the guardianship is pending
stating the reason for the transfer.
(b) With notice as provided by Section 1023.004, the court
in which a guardianship is pending, on the court's own motion, may
transfer the transaction of the business of the guardianship to
another county if the ward resides in the county to which the
guardianship is to be transferred.
(d) Section 1023.004, Estates Code, is amended to read as
follows:
Sec. 1023.004. NOTICE. (a) On filing an application or on
motion of a court to transfer a guardianship to another county under
Section 1023.003, the sureties on the bond of the guardian shall be
cited by personal service to appear and show cause why the
guardianship [application] should not be transferred [granted].
(b) If an application is filed by a person other than the
guardian or if a court made a motion to transfer a guardianship, the
guardian shall be cited by personal service to appear and show cause
why the guardianship [application] should not be transferred
[granted].
(e) Section 1023.005, Estates Code, is amended to read as
follows:
Sec. 1023.005. COURT ACTION. On hearing an application or
motion under Section 1023.003, if good cause is not shown to deny
the transfer [application] and it appears that transfer of the
guardianship is in the best interests of the ward, the court shall
enter an order:
(1) authorizing the transfer on payment on behalf of
the estate of all accrued costs; and
(2) requiring that any existing bond of the guardian
must remain in effect until a new bond has been given or a rider has
been filed in accordance with Section 1023.010.
(f) Section 1203.052, Estates Code, is amended by amending
Subsection (a) and adding Subsection (a-1) to read as follows:
(a) The court may remove a guardian as provided by
Subsection (a-1) [on the court's 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,] if:
(1) sufficient grounds appear to support a belief that
the guardian has misapplied, embezzled, or removed from the state,
or is about to misapply, embezzle, or remove from the state, any of
the property entrusted to the guardian's care;
(2) the guardian fails to return any account or report
that is required by law to be made;
(3) the guardian fails to obey a proper order of the
court that has 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 guardian's
duties;
(5) the guardian:
(A) becomes incapacitated;
(B) is sentenced to the penitentiary; or
(C) 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;
(7) 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;
(8) the guardian interferes with the ward's progress
or participation in programs in the community;
(9) the guardian fails to comply with the requirements
of Subchapter G, Chapter 1104;
(10) 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
(11) the guardian would be ineligible for appointment
as a guardian under Subchapter H, Chapter 1104.
(a-1) The court may remove a guardian for a reason listed in
Subsection (a) on the:
(1) court's own motion, after the guardian has been
notified, by certified mail, return receipt requested, to answer at
a time and place set in the notice; or
(2) 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.
(g) Sections 361.052 and 404.0035, Estates Code, as amended
by this section, apply to the estate of a decedent who dies before,
on, or after the effective date of this Act.
(h) Sections 1023.003, 1023.004, 1023.005, and 1203.052,
Estates Code, as amended by this section, apply to a guardianship
created before, on, or after the effective date of this Act.
SECTION 2. Section 751.052, Estates Code, is amended to
read as follows:
Sec. 751.052. RELATION OF ATTORNEY IN FACT OR AGENT TO
COURT-APPOINTED GUARDIAN OF ESTATE. (a) If, after execution of a
durable power of attorney, a court [of the principal's domicile]
appoints a:
(1) permanent guardian of the estate for a ward who is
[of] the principal who executed the power of attorney, on the
qualification of the guardian the powers and authority granted to
[of] the attorney in fact or agent named in the power of attorney
are automatically revoked; or
(2) temporary guardian of the estate for a ward who is
the principal who executed the power of attorney, on the
qualification of the guardian the powers and authority granted to
the attorney in fact or agent named in the power of attorney are
automatically suspended for the duration of the guardianship unless
the court enters an order that:
(A) affirms and states the effectiveness of the
power of attorney; and
(B) confirms the validity of the appointment of
the named attorney in fact or agent [terminate on the qualification
of the guardian of the estate].
(b) If the powers and authority of an [The] attorney in fact
or agent are revoked as provided by Subsection (a), the attorney in
fact or agent shall:
(1) deliver to the guardian of the estate all assets of
the ward's estate that are in the possession of the attorney in fact
or agent; and
(2) account to the guardian of the estate as the
attorney in fact or agent would account to the principal if the
principal had terminated the powers of the attorney in fact or
agent.
[(b) If, after execution of a durable power of attorney, a
court of the principal's domicile appoints a temporary guardian of
the estate of the principal, the court may suspend the powers of the
attorney in fact or agent on the qualification of the temporary
guardian of the estate until the date the term of the temporary
guardian expires. This subsection may not be construed to prohibit
the application for or issuance of a temporary restraining order
under applicable law.]
SECTION 3. Section 751.054(a), Estates Code, is amended to
read as follows:
(a) The revocation by, the death of, or the qualification of
a temporary or permanent guardian of the estate of a principal who
has executed a durable power of attorney or the removal of an
attorney in fact or agent under Chapter 753 does not revoke,
suspend, or terminate the agency as to the attorney in fact, agent,
or other person who acts in good faith under or in reliance on the
power without actual knowledge of the termination or suspension, as
applicable, of the power by:
(1) the revocation;
(2) the principal's death; [or]
(3) the qualification of a temporary or permanent
guardian of the estate of the principal; or
(4) the attorney in fact's or agent's removal.
SECTION 4. Section 751.055(a), Estates Code, is amended to
read as follows:
(a) As to an act undertaken in good-faith reliance on a
durable power of attorney, an affidavit executed by the attorney in
fact or agent under the durable power of attorney stating that the
attorney in fact or agent did not have, at the time the power was
exercised, actual knowledge of the termination or suspension of the
power, as applicable, by revocation, the principal's death, the
principal's divorce or the annulment of the principal's marriage if
the attorney in fact or agent was the principal's spouse, [or] the
qualification of a temporary or permanent guardian of the estate of
the principal, or the attorney in fact's or agent's removal, is
conclusive proof as between the attorney in fact or agent and a
person other than the principal or the principal's personal
representative dealing with the attorney in fact or agent of the
nonrevocation, nonsuspension, or nontermination of the power at
that time.
SECTION 5. Section 752.051, Estates Code, is amended to
read as follows:
Sec. 752.051. FORM. The following form is known as a
"statutory durable power of attorney":
STATUTORY DURABLE POWER OF ATTORNEY
NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING.
THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, SUBTITLE P,
TITLE 2, ESTATES CODE. IF YOU HAVE ANY QUESTIONS ABOUT THESE
POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES NOT
AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE DECISIONS
FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU LATER WISH TO
DO SO.
You should select someone you trust to serve as your agent
(attorney in fact). Unless you specify otherwise, generally the
agent's (attorney in fact's) authority will continue until:
(1) you die or revoke the power of attorney;
(2) your agent (attorney in fact) resigns, is removed
by court order, or is unable to act for you; or
(3) a guardian is appointed for your estate.
I, __________ (insert your name and address), appoint
__________ (insert the name and address of the person appointed) as
my agent (attorney in fact) to act for me in any lawful way with
respect to all of the following powers that I have initialed below.
TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN
FRONT OF (N) AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS
LISTED IN (A) THROUGH (M).
TO GRANT A POWER, YOU MUST INITIAL THE LINE IN FRONT OF THE
POWER YOU ARE GRANTING.
TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF THE
POWER. YOU MAY, BUT DO NOT NEED TO, CROSS OUT EACH POWER WITHHELD.
____ (A) Real property transactions;
____ (B) Tangible personal property transactions;
____ (C) Stock and bond transactions;
____ (D) Commodity and option transactions;
____ (E) Banking and other financial institution
transactions;
____ (F) Business operating transactions;
____ (G) Insurance and annuity transactions;
____ (H) Estate, trust, and other beneficiary transactions;
____ (I) Claims and litigation;
____ (J) Personal and family maintenance;
____ (K) Benefits from social security, Medicare, Medicaid,
or other governmental programs or civil or military service;
____ (L) Retirement plan transactions;
____ (M) Tax matters;
____ (N) ALL OF THE POWERS LISTED IN (A) THROUGH (M). YOU DO
NOT HAVE TO INITIAL THE LINE IN FRONT OF ANY OTHER POWER IF YOU
INITIAL LINE (N).
SPECIAL INSTRUCTIONS:
Special instructions applicable to gifts (initial in front of
the following sentence to have it apply):
____ I grant my agent (attorney in fact) the power to apply my
property to make gifts outright to or for the benefit of a person,
including by the exercise of a presently exercisable general power
of appointment held by me, except that the amount of a gift to an
individual may not exceed the amount of annual exclusions allowed
from the federal gift tax for the calendar year of the gift.
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS
LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS
EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE
ALTERNATIVE NOT CHOSEN:
(A) This power of attorney is not affected by my subsequent
disability or incapacity.
(B) This power of attorney becomes effective upon my
disability or incapacity.
YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY
IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT
YOU CHOSE ALTERNATIVE (A).
If Alternative (B) is chosen and a definition of my
disability or incapacity is not contained in this power of
attorney, I shall be considered disabled or incapacitated for
purposes of this power of attorney if a physician certifies in
writing at a date later than the date this power of attorney is
executed that, based on the physician's medical examination of me,
I am mentally incapable of managing my financial affairs. I
authorize the physician who examines me for this purpose to
disclose my physical or mental condition to another person for
purposes of this power of attorney. A third party who accepts this
power of attorney is fully protected from any action taken under
this power of attorney that is based on the determination made by a
physician of my disability or incapacity.
I agree that any third party who receives a copy of this
document may act under it. Revocation of the durable power of
attorney is not effective as to a third party until the third party
receives actual notice of the revocation. I agree to indemnify the
third party for any claims that arise against the third party
because of reliance on this power of attorney.
If any agent named by me dies, becomes legally disabled,
resigns, [or] refuses to act, or is removed by court order, I name
the following (each to act alone and successively, in the order
named) as successor(s) to that agent: __________.
Signed this ______ day of __________, _____________
___________________________
(your signature)
State of _______________________
County of ______________________
This document was acknowledged before me on ____________(date) by
________________________
(name of principal)
______________________________
(signature of notarial officer)
(Seal, if any, of notary) ________________________________________
(printed name)
My commission expires: ______________
IMPORTANT INFORMATION FOR AGENT (ATTORNEY IN FACT)
Agent's Duties
When you accept the authority granted under this power of
attorney, you establish a "fiduciary" relationship with the
principal. This is a special legal relationship that imposes on you
legal duties that continue until you resign or the power of attorney
is terminated, suspended, or revoked by the principal or by
operation of law. A fiduciary duty generally includes the duty to:
(1) act in good faith;
(2) do nothing beyond the authority granted in this
power of attorney;
(3) act loyally for the principal's benefit;
(4) avoid conflicts that would impair your ability to
act in the principal's best interest; and
(5) disclose your identity as an agent or attorney in
fact when you act for the principal by writing or printing the name
of the principal and signing your own name as "agent" or "attorney
in fact" in the following manner:
(Principal's Name) by (Your Signature) as Agent (or as
Attorney in Fact)
In addition, the Durable Power of Attorney Act (Subtitle P,
Title 2, Estates Code) requires you to:
(1) maintain records of each action taken or decision
made on behalf of the principal;
(2) maintain all records until delivered to the
principal, released by the principal, or discharged by a court; and
(3) if requested by the principal, provide an
accounting to the principal that, unless otherwise directed by the
principal or otherwise provided in the Special Instructions, must
include:
(A) the property belonging to the principal that
has come to your knowledge or into your possession;
(B) each action taken or decision made by you as
agent or attorney in fact;
(C) a complete account of receipts,
disbursements, and other actions of you as agent or attorney in fact
that includes the source and nature of each receipt, disbursement,
or action, with receipts of principal and income shown separately;
(D) a listing of all property over which you have
exercised control that includes an adequate description of each
asset and the asset's current value, if known to you;
(E) the cash balance on hand and the name and
location of the depository at which the cash balance is kept;
(F) each known liability;
(G) any other information and facts known to you
as necessary for a full and definite understanding of the exact
condition of the property belonging to the principal; and
(H) all documentation regarding the principal's
property.
Termination of Agent's Authority
You must stop acting on behalf of the principal if you learn
of any event that terminates or suspends this power of attorney or
your authority under this power of attorney. An event that
terminates this power of attorney or your authority to act under
this power of attorney includes:
(1) the principal's death;
(2) the principal's revocation of this power of
attorney or your authority;
(3) the occurrence of a termination event stated in
this power of attorney;
(4) if you are married to the principal, the
dissolution of your marriage by court decree of divorce or
annulment;
(5) the appointment and qualification of a permanent
guardian of the principal's estate unless a court order provides
otherwise; or
(6) if ordered by a court, your removal as agent
(attorney in fact) under this power of attorney. An event that
suspends this power of attorney or your authority to act under this
power of attorney is the appointment and qualification of a
temporary guardian unless a court order provides otherwise [if
ordered by a court, the suspension of this power of attorney on the
appointment and qualification of a temporary guardian until the
date the term of the temporary guardian expires].
Liability of Agent
The authority granted to you under this power of attorney is
specified in the Durable Power of Attorney Act (Subtitle P, Title 2,
Estates Code). If you violate the Durable Power of Attorney Act or
act beyond the authority granted, you may be liable for any damages
caused by the violation or subject to prosecution for
misapplication of property by a fiduciary under Chapter 32 of the
Texas Penal Code.
THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER
THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL
RESPONSIBILITIES OF AN AGENT.
SECTION 6. Subtitle P, Title 2, Estates Code, is amended by
adding Chapter 753 to read as follows:
CHAPTER 753. REMOVAL OF ATTORNEY IN FACT OR AGENT
Sec. 753.001. PROCEDURE FOR REMOVAL. (a) In this section,
"person interested," notwithstanding Section 22.018, has the
meaning assigned by Section 1002.018.
(b) The following persons may file a petition under this
section:
(1) any person named as a successor attorney in fact or
agent in a durable power of attorney; or
(2) if the person with respect to whom a guardianship
proceeding has been commenced is a principal who has executed a
durable power of attorney, any person interested in the
guardianship proceeding, including an attorney ad litem or guardian
ad litem.
(c) On the petition of a person described by Subsection (b),
a probate court, after a hearing, may enter an order:
(1) removing a person named and serving as an attorney
in fact or agent under a durable power of attorney;
(2) authorizing the appointment of a successor
attorney in fact or agent who is named in the durable power of
attorney if the court finds that the successor attorney in fact or
agent is willing to accept the authority granted under the power of
attorney; and
(3) if compensation is allowed by the terms of the
durable power of attorney, denying all or part of the removed
attorney in fact's or agent's compensation.
(d) A court may enter an order under Subsection (c) if the
court finds:
(1) that the attorney in fact or agent has breached the
attorney in fact's or agent's fiduciary duties to the principal;
(2) that the attorney in fact or agent has materially
violated or attempted to violate the terms of the durable power of
attorney and the violation or attempted violation results in a
material financial loss to the principal;
(3) that the attorney in fact or agent is
incapacitated or is otherwise incapable of properly performing the
attorney in fact's or agent's duties; or
(4) that the attorney in fact or agent has failed to
make an accounting:
(A) that is required by Section 751.104 within
the period prescribed by Section 751.105, by other law, or by the
terms of the durable power of attorney; or
(B) as ordered by the court.
Sec. 753.002. NOTICE TO THIRD PARTIES. Not later than the
21st day after the date the court enters an order removing an
attorney in fact or agent and authorizing the appointment of a
successor under Section 753.001, the successor attorney in fact or
agent shall provide actual notice of the order to each third party
that the attorney in fact or agent has reason to believe relied on
or may rely on the durable power of attorney.
SECTION 7. Section 1055.003, Estates Code, is amended by
amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) Notwithstanding the Texas Rules of Civil Procedure and
except as provided by Subsection (d), an interested person may
intervene in a guardianship proceeding only by filing a timely
motion to intervene that is served on the parties.
(d) A person who is entitled to receive notice under Section
1051.104 is not required to file a motion under this section to
intervene in a guardianship proceeding.
SECTION 8. Section 1101.002, Estates Code, is amended to
read as follows:
Sec. 1101.002. CONTENTS OF APPLICATION; CONFIDENTIALITY OF
CERTAIN ADDRESSES. An application filed under Section 1101.001 may
omit the address of a person named in the application if:
(1) the application states that the person is or was
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.
SECTION 9. Section 1151.051(d), Estates Code, is amended to
read as follows:
(d) Notwithstanding Subsection (c)(4), a guardian of the
person of a ward has the power to personally transport the ward or
to direct the ward's transport by emergency medical services or
other means to an inpatient mental health facility for a
preliminary examination in accordance with Subchapters A and C,
Chapter 573, Health and Safety Code. The guardian shall
immediately provide written notice to the court that granted the
guardianship as required by Section 573.004, Health and Safety
Code, of the filing of an application under that section.
SECTION 10. Section 1357.052, Estates Code, is amended to
read as follows:
Sec. 1357.052. AUTHORITY OF SUPPORTER; NATURE OF
RELATIONSHIP. (a) A supporter may exercise the authority granted
to the supporter in the supported decision-making agreement.
(b) The supporter owes to the adult with a disability
fiduciary duties as listed in the form provided by Section
1357.056(a), regardless of whether that form is used for the
supported decision-making agreement.
(c) The relationship between an adult with a disability and
the supporter with whom the adult enters into a supported
decision-making agreement:
(1) is one of trust and confidence; and
(2) does not undermine the decision-making authority
of the adult.
SECTION 11. Subchapter B, Chapter 1357, Estates Code, is
amended by adding Section 1357.0525 to read as follows:
Sec. 1357.0525. DESIGNATION OF ALTERNATE SUPPORTER IN
CERTAIN CIRCUMSTANCES. In order to prevent a conflict of interest,
if a determination is made by an adult with a disability that the
supporter with whom the adult entered into a supported
decision-making agreement is the most appropriate person to provide
to the adult supports and services for which the supporter will be
compensated, the adult may amend the supported decision-making
agreement to designate an alternate person to act as the adult's
supporter for the limited purpose of participating in
person-centered planning as it relates to the provision of those
supports and services.
SECTION 12. Section 1357.053(b), Estates Code, is amended
to read as follows:
(b) The supported decision-making agreement is terminated
if:
(1) the Department of Family and Protective Services
finds that the adult with a disability has been abused, neglected,
or exploited by the supporter; [or]
(2) the supporter is found criminally liable for
conduct described by Subdivision (1); or
(3) a temporary or permanent guardian of the person or
estate appointed for the adult with a disability qualifies.
SECTION 13. Section 1357.056(a), Estates Code, is amended
to read as follows:
(a) Subject to Subsection (b), a supported decision-making
agreement is valid only if it is in substantially the following
form:
SUPPORTED DECISION-MAKING AGREEMENT
Important Information For Supporter: Duties
When you agree to provide support to an adult with a
disability under this supported decision-making agreement, you
have a duty to:
(1) act in good faith;
(2) act within the authority granted in this
agreement;
(3) act loyally and without self-interest; and
(4) avoid conflicts of interest.
Appointment of Supporter
I, (insert your name), make this agreement of my own free
will.
I agree and designate that:
Name:
Address:
Phone Number:
E-mail Address:
is my supporter. My supporter may help me with making everyday life
decisions relating to the following:
Y/N obtaining food, clothing, and shelter
Y/N taking care of my physical health
Y/N managing my financial affairs.
My supporter is not allowed to make decisions for me. To help
me with my decisions, my supporter may:
1. Help me access, collect, or obtain information that is
relevant to a decision, including medical, psychological,
financial, educational, or treatment records;
2. Help me understand my options so I can make an informed
decision; or
3. Help me communicate my decision to appropriate persons.
Y/N A release allowing my supporter to see protected
health information under the Health Insurance Portability and
Accountability Act of 1996 (Pub. L. No. 104-191) is attached.
Y/N A release allowing my supporter to see educational
records under the Family Educational Rights and Privacy Act of 1974
(20 U.S.C. Section 1232g) is attached.
Effective Date of Supported Decision-Making Agreement
This supported decision-making agreement is effective
immediately and will continue until (insert date) or until the
agreement is terminated by my supporter or me or by operation of
law.
Signed this ______ day of _________, 20___
Consent of Supporter
I, (name of supporter), consent to act as a supporter under
this agreement.
(signature of supporter)(printed name of supporter)
Signature
(my signature)(my printed name)
(witness 1 signature)(printed name of witness 1)
(witness 2 signature)(printed name of witness 2)
State of
County of
This document was acknowledged before me
on _______________________________ (date)
by _______________________________ and _______________________
(name of adult with a disability)(name of supporter)
(signature of notarial officer)
(Seal, if any, of notary)
(printed name)
My commission expires:
WARNING: PROTECTION FOR THE ADULT WITH A DISABILITY
IF A PERSON WHO RECEIVES A COPY OF THIS AGREEMENT OR IS AWARE
OF THE EXISTENCE OF THIS AGREEMENT HAS CAUSE TO BELIEVE THAT THE
ADULT WITH A DISABILITY IS BEING ABUSED, NEGLECTED, OR EXPLOITED BY
THE SUPPORTER, THE PERSON SHALL REPORT THE ALLEGED ABUSE, NEGLECT,
OR EXPLOITATION TO THE DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
BY CALLING THE ABUSE HOTLINE AT 1-800-252-5400 OR ONLINE AT
WWW.TXABUSEHOTLINE.ORG.
SECTION 14. (a) Sections 751.052, 751.054(a), and
751.055(a), Estates Code, as amended by this Act, and Chapter 753,
Estates Code, as added by this Act, apply to a durable power of
attorney, including a statutory durable power of attorney, executed
before, on, or after the effective date of this Act.
(b) Section 752.051, Estates Code, as amended by this Act,
applies to a statutory durable power of attorney executed on or
after the effective date of this Act. A statutory durable power of
attorney executed before the effective date of this Act is governed
by the law as it existed on the date the statutory durable power of
attorney was executed, and the former law is continued in effect for
that purpose.
(c) Section 1055.003, Estates Code, as amended by this Act,
applies to a guardianship proceeding that is pending or commenced
on or after the effective date of this Act.
(d) Section 1101.002, Estates Code, as amended by this Act,
applies to an application for a guardianship filed on or after the
effective date of this Act.
(e) Sections 1357.052 and 1357.053(b), Estates Code, as
amended by this Act, and Section 1357.0525, Estates Code, as added
by this Act, apply to a supported decision-making agreement entered
into before, on, or after the effective date of this Act.
(f) Section 1357.056(a), Estates Code, as amended by this
Act, applies to a supported decision-making agreement entered into
on or after the effective date of this Act. A supported
decision-making agreement entered into before the effective date of
this Act is governed by the law as it existed on the date the
supported decision-making agreement was entered into, and the
former law is continued in effect for that purpose.
SECTION 15. This Act takes effect September 1, 2017.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 39 passed the Senate on
April 5, 2017, by the following vote: Yeas 30, Nays 0; and that the
Senate concurred in House amendment on May 25, 2017, by the
following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 39 passed the House, with
amendment, on May 22, 2017, by the following vote: Yeas 144,
Nays 0, two present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor