Bill Text: TX SB647 | 2013-2014 | 83rd Legislature | Introduced

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Bill Title: Relating to guardianships, including the assessment and payment of attorney's fees and other court costs in guardianships, and to court-created management trusts for persons who have physical disabilities or who are incapacitated.

Sponsorship: Partisan Bill (Democrat 1)

Status: (Introduced - Dead) 2013-05-07 - Left pending in committee [SB647 Detail]

Download: Texas-2013-SB647-Introduced.html

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83R3599 CLG-F
By: Rodriguez S.B. No. 647

A BILL TO BE ENTITLED
AN ACT
relating to guardianships, including the assessment and payment of
attorney's fees and other court costs in guardianships, and to
court-created management trusts for persons who have physical
disabilities or who are incapacitated.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1051.253(c), Estates Code, as effective
January 1, 2014, is amended to read as follows:
(c) At the expiration of the 10-day period prescribed by
Subsection (a):
(1) [commission may issue for taking] the depositions
for which the notice was posted may be taken; and
(2) the judge may file cross-interrogatories if no
person appears.
SECTION 2. Chapter 1055, Estates Code, as effective January
1, 2014, is amended by adding Subchapter D to read as follows:
SUBCHAPTER D. MEDIATION
Sec. 1055.151. MEDIATION OF CONTESTED GUARDIANSHIP
PROCEEDING. (a) On the written agreement of the parties or on the
court's own motion, the court may refer a contested guardianship
proceeding to mediation.
(b) A mediated settlement agreement is binding on the
parties if the agreement:
(1) provides, in a prominently displayed statement
that is in boldfaced type, in capital letters, or underlined, that
the agreement is not subject to revocation by the parties;
(2) is signed by each party to the agreement; and
(3) is signed by the party's attorney, if any, who is
present at the time the agreement is signed.
(c) If a mediated settlement agreement meets the
requirements of this section, a party is entitled to judgment on the
mediated settlement agreement notwithstanding Rule 11, Texas Rules
of Civil Procedure, or another rule or law.
(d) Notwithstanding Subsections (b) and (c), a court may
decline to enter a judgment on a mediated settlement agreement if
the court finds that the agreement is not in the ward's or proposed
ward's best interests.
SECTION 3. Section 1102.005(b), Estates Code, as effective
January 1, 2014, is amended to read as follows:
(b) After examining the [ward's or] proposed ward's assets
and determining that the [ward or] proposed ward is unable to pay
for services provided by the guardian ad litem, the court may
authorize compensation from the county treasury.
SECTION 4. Sections 1155.052(a) and (c), Estates Code, as
effective January 1, 2014, are amended to read as follows:
(a) Notwithstanding any other provision of this chapter [or
Section 665B], an attorney who serves as guardian and who also
provides legal services in connection with the guardianship is not
entitled to compensation for the guardianship services or payment
of attorney's fees for the legal services from the ward's estate or
other funds available for that purpose unless the attorney files
with the court a detailed description of the services performed
that identifies which of the services provided were guardianship
services and which were legal services.
(c) The court shall set the compensation of an attorney
described by Subsection (a) for the performance of guardianship
services in accordance with Subchapter A. The court shall set
attorney's fees for an attorney described by Subsection (a) for
legal services provided in accordance with Sections 1155.054
[1155.051], 1155.101, and 1155.151 [665B].
SECTION 5. Notwithstanding the transfer of Section 665B,
Texas Probate Code, as amended by Chapters 314 (H.B. 587) and 930
(H.B. 3080), Acts of the 81st Legislature, Regular Session, 2009,
to the Estates Code and redesignation as Section 665B of that code
effective January 1, 2014, by Section 3.01(e), Chapter 823 (H.B.
2759), Acts of the 82nd Legislature, Regular Session, 2011, Section
665B, Texas Probate Code, is transferred to Subchapter B, Chapter
1155, Estates Code, redesignated as Section 1155.054, Estates Code,
and reenacted and amended to read as follows:
Sec. 1155.054 [665B]. PAYMENT OF ATTORNEY'S FEES TO
CERTAIN ATTORNEYS. (a) A court that creates a guardianship or
creates a management trust under Chapter 1301 [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 the payment of reasonable and
necessary attorney's fees, as determined by the court, in amounts
the court considers equitable and just, to 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)] available funds of the ward's estate or
management trust, if created, subject to Subsections (b) and (d).
(b) The court may authorize amounts that otherwise would be
paid from the ward's estate or the management trust as provided by
Subsection (a) to instead be paid from the county treasury,[; or
[(2)] subject to Subsection (e), [(c) of this section,
the county treasury] if:
(1) [(A)] the ward's estate or[, if created,]
management trust[,] is insufficient to pay [for] the amounts
[services provided by the attorney]; and
(2) [(B)] funds in the county treasury are budgeted
for that purpose.
(c) [(b)] The court may not authorize attorney's fees under
this section unless the court finds that the applicant acted in good
faith and for just cause in the filing and prosecution of the
application.
(d) If the court finds that a party in a guardianship
proceeding acted in bad faith or without just cause in prosecuting
or objecting to an application in the proceeding, the court may
require the party to reimburse the ward's estate for all or part of
the attorney's fees awarded under this section and shall issue
judgment against the party and in favor of the estate for the amount
of attorney's fees required to be reimbursed to the estate.
(e) [(c)] The court may authorize the payment of attorney's
fees from the county treasury under Subsection (b) [(a) of this
section] only if the court is satisfied that the attorney to whom
the fees will be paid has not received, and is not seeking, payment
for the services described by that subsection from any other
source.
SECTION 6. Section 1155.151, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 1155.151. COSTS IN GUARDIANSHIP [COST OF] PROCEEDING
GENERALLY [IN GUARDIANSHIP MATTER]. (a) In a guardianship
proceeding [Except as provided by Subsection (b)], the court costs
[cost] of the proceeding [in a guardianship matter], including the
cost of the guardians [guardian] ad litem, attorneys ad litem, [or]
court visitor, mental health professionals, and interpreters
appointed under this title, shall be set in an amount the court
considers equitable and just and, except as provided by Subsection
(c), shall be paid out of the guardianship estate, or [the cost of
the proceeding shall be paid out of] the county treasury if the
estate is insufficient to pay the cost, and the court shall issue
the judgment accordingly.
(b) The costs attributable to the services of a person
described by Subsection (a) shall be paid under this section at any
time after the commencement of the proceeding as ordered by the
court.
(c) If the court finds that a party in a guardianship
proceeding acted in bad faith or without just cause in prosecuting
or objecting to an application in the proceeding, the court may
order the party to pay all or part of the costs of the proceeding.
If the party found to be acting in bad faith or without just cause
was required to provide security for the probable costs of the
proceeding under Section 1053.052, the court shall first apply the
amount provided as security as payment for costs ordered by the
court under this subsection. If the amount provided as security is
insufficient to pay the entire amount ordered by the court, the
court shall render judgment in favor of the estate against the party
for the remaining amount. [An applicant for the appointment of a
guardian under this title shall pay the cost of the proceeding if
the court denies the application based on the recommendation of a
court investigator.]
SECTION 7. Subchapter C, Chapter 1163, Estates Code, as
effective January 1, 2014, is amended by adding Section 1163.1011
to read as follows:
Sec. 1163.1011. USE OF UNSWORN DECLARATION FOR ELECTRONIC
FILING OF ANNUAL REPORT. (a) A guardian of the person who files the
annual report required by Section 1163.101 electronically with the
court may use an unsworn declaration made as provided by this
section instead of a written sworn declaration or affidavit
required by Section 1163.101.
(b) An unsworn declaration authorized by this section must
be:
(1) in writing; and
(2) subscribed by the person making the declaration as
true under penalty of perjury.
(c) The form of an unsworn declaration authorized by this
section must be substantially as follows:
I, (insert name of guardian of the person), the guardian of
the person for (insert name of ward) in _______ County, Texas,
declare under penalty of perjury that the foregoing is true and
correct.
Executed on (insert date)
________________________
(signature)
(d) An unsworn declaration authorized by Section 132.001,
Civil Practice and Remedies Code, may not be used instead of a
written sworn declaration or affidavit required by Section
1163.101.
SECTION 8. Section 1251.013, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 1251.013. COURT COSTS. If the court appoints a
temporary guardian after the hearing required by Section
1251.006(b), all court costs, including attorney's fees, may be
assessed as provided by Sections 1155.054 and [1155.051,]
1155.151[, and 665B].
SECTION 9. The heading to Section 1301.052, Estates Code,
as effective January 1, 2014, is amended to read as follows:
Sec. 1301.052. VENUE FOR PROCEEDING INVOLVING TRUST FOR AN
ALLEGED INCAPACITATED PERSON.
SECTION 10. Section 1301.054, Estates Code, as effective
January 1, 2014, is amended by amending Subsection (c) and adding
Subsection (c-1) to read as follows:
(c) Except as provided by Subsection (c-1), the [The] court
shall appoint an attorney ad litem and, if necessary, may appoint a
guardian ad litem, to represent the interests of the alleged
incapacitated person in the hearing to determine incapacity under
Subsection (a).
(c-1) If the application for the creation of the trust is
filed by a person who has only a physical disability, the court may,
but is not required to, appoint an attorney ad litem or guardian ad
litem to represent the interests of the person in the hearing to
determine incapacity under Subsection (a).
SECTION 11. Section 1301.055, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 1301.055. AUTHORITY OF COURT TO APPOINT GUARDIAN
INSTEAD OF CREATING TRUST. If, after a hearing under Section
1301.054, the court finds that the person for whom the application
was filed is an incapacitated person but that it is not in the
incapacitated person's best interests for the court to create a
trust under this subchapter for the incapacitated person's estate,
the court may appoint a guardian of the person or estate, or both,
for the incapacitated person without commencing a separate
proceeding for that purpose.
SECTION 12. Sections 1301.057(b), (c), and (d), Estates
Code, as effective January 1, 2014, are amended to read as follows:
(b) Except as provided by Subsection (c), the court shall
appoint a financial institution to serve as trustee of a management
trust, other than a management trust created for a person who has
only a physical disability.
(c) The court may appoint a person or entity described by
Subsection (d) to serve as trustee of a management trust created for
a ward or incapacitated person instead of appointing a financial
institution to serve in that capacity if the court finds:
(1) that the appointment is in the best interests of
the ward or incapacitated person for whom the trust is created; and
(2) if the value of the trust's principal is more than
$150,000, that the applicant for the creation of the trust, after
the exercise of due diligence, has been unable to find a financial
institution in the geographic area willing to serve as trustee.
(d) The following are eligible for appointment as trustee of
a management trust created for a ward or incapacitated person under
Subsection (c):
(1) an individual, including an individual who is
certified as a private professional guardian;
(2) a nonprofit corporation qualified to serve as a
guardian; and
(3) a guardianship program.
SECTION 13. Section 1301.058, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 1301.058. BOND REQUIREMENTS FOR TRUSTEES. (a) The
following serve [A trustee of a management trust that is a corporate
fiduciary serves] without giving a bond in accordance with the
trust terms required by Sections [Section] 1301.101(a)(4) and
(a-1):
(1) a trustee of a management trust that is a corporate
fiduciary; and
(2) any other trustee of a management trust created
for a person who has only a physical disability.
(b) Except as provided by Subsection (a), the [The] court
shall require a person[, other than a corporate fiduciary,] serving
as trustee of a management trust to file with the county clerk a
bond that:
(1) is in an amount equal to the value of the trust's
principal and projected annual income; and
(2) meets the conditions the court determines are
necessary.
SECTION 14. Section 1301.101, Estates Code, as effective
January 1, 2014, is amended to conform to Section 31, Chapter 1085
(S.B. 1196), Acts of the 82nd Legislature, Regular Session, 2011,
and is further amended to read as follows:
Sec. 1301.101. REQUIRED TERMS. (a) Except as provided by
Subsection (c), a management trust created for a ward or
incapacitated person must provide that:
(1) the ward or incapacitated person [for whom the
trust is created] is the sole beneficiary of the trust;
(2) the trustee may disburse an amount of the trust's
principal or income as the trustee determines is necessary to spend
for the health, education, maintenance, or support of the [ward or
incapacitated] person for whom the trust is created;
(3) the trust income that the trustee does not
disburse under Subdivision (2) must be added to the trust
principal;
(4) a trustee that is a corporate fiduciary serves
without giving a bond; and
(5) subject to the court's approval and Subsection
(b), a [the] trustee is entitled to receive reasonable compensation
for services the trustee provides to the [ward or incapacitated]
person for whom the trust is created as the person's trustee.
(a-1) A management trust created for a person who has only a
physical disability must provide that the trustee of the trust:
(1) serves without giving a bond; and
(2) is entitled to receive, without the court's
approval, reasonable compensation for services the trustee
provides to the person as the person's trustee.
(b) A trustee's compensation under Subsection (a)(5) must
be:
(1) paid from the management trust's income,
principal, or both; and
(2) determined, paid, reduced, and eliminated in the
same manner as compensation of a guardian [of an estate] under
Subchapter A, Chapter 1155.
(c) The court creating or modifying a management trust may
omit or modify otherwise applicable terms required by Subsection
(a), (a-1), or (b) [(a)(1) or (2) only] if the court is creating the
trust for a person who has only a physical disability, or if the
court determines that the omission or modification:
(1) is necessary and appropriate for the [ward or
incapacitated] person for whom the trust is created to be eligible
to receive public benefits or assistance under a state or federal
program that is not otherwise available to the [ward or
incapacitated] person; or [and]
(2) is in the [ward's or incapacitated person's] best
interests of the person for whom the trust is created.
SECTION 15. Section 1301.102(a), Estates Code, as effective
January 1, 2014, is amended to conform to Section 31, Chapter 1085
(S.B. 1196), Acts of the 82nd Legislature, Regular Session, 2011,
and is further amended to read as follows:
(a) A management trust created for a ward or incapacitated
person may provide that the trustee make a distribution, payment,
use, or application of trust funds for the health, education,
maintenance, or support of the [ward or incapacitated] person for
whom the trust is created or of another person whom the [ward or
incapacitated] person for whom the trust is created is legally
obligated to support:
(1) as necessary and without the intervention of:
(A) a guardian or other representative of the
ward; or
(B) a representative of the incapacitated
person; and
(2) to:
(A) the ward's guardian;
(B) a person who has physical custody of the
[ward or incapacitated] person for whom the trust is created or of
another person whom the [ward or incapacitated] person for whom the
trust is created is legally obligated to support; or
(C) a person providing a good or service to the
[ward or incapacitated] person for whom the trust is created or to
another person whom the [ward or incapacitated] person for whom the
trust is created is legally obligated to support.
SECTION 16. Section 1301.103, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 1301.103. ENFORCEABILITY OF CERTAIN TERMS. A
provision in a management trust created for a ward or incapacitated
person that relieves a trustee from a duty or liability imposed by
this chapter or Subtitle B, Title 9, Property Code, is enforceable
only if:
(1) the provision is limited to specific facts and
circumstances unique to the property of that trust and is not
applicable generally to the trust; and
(2) the court creating or modifying the trust makes a
specific finding that there is clear and convincing evidence that
the inclusion of the provision is in the best interests of the trust
beneficiary.
SECTION 17. Section 1301.154(a), Estates Code, as effective
January 1, 2014, is amended to read as follows:
(a) The trustee of a management trust created for a ward
shall prepare and file with the court an annual accounting of
transactions in the trust in the same manner and form that is
required of a guardian of the estate under this title.
SECTION 18. Section 1301.202, Estates Code, as effective
January 1, 2014, is amended by adding Subsection (a-1) to read as
follows:
(a-1) For purposes of a proceeding to determine whether to
transfer property from a management trust to a pooled trust
subaccount, the court may, but is not required to, appoint an
attorney ad litem or guardian ad litem to represent the interests of
a person who has only a physical disability for whom the management
trust was created.
SECTION 19. Section 1155.051, Estates Code, as effective
January 1, 2014, is repealed.
SECTION 20. (a) Except as otherwise provided by this
section, the changes in law made by this Act apply to:
(1) a guardianship created before, on, or after the
effective date of this Act; and
(2) an application for a guardianship pending on, or
filed on or after, the effective date of this Act.
(b) The changes in law made by this Act to Sections
1301.054, 1301.055, 1301.057(b), (c), and (d), 1301.058, 1301.101,
and 1301.102(a), Estates Code, apply only to an application for the
creation, modification, or termination of a management trust that
is filed on or after the effective date of this Act. An application
described by this subsection that is 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) The changes in law made by this Act to Sections 1301.103
and 1301.154(a), Estates Code, and by Section 1301.202(a-1),
Estates Code, as added by this Act, apply to a management trust
created before, on, or after the effective date of this Act.
SECTION 21. To the extent of any conflict, this Act prevails
over another Act of the 83rd Legislature, Regular Session, 2013,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 22. This Act takes effect January 1, 2014.