Enacted-Effective 9/1/11: HB 2759 -- Recodification of guardianship statutes

Caption: Relating to the nonsubstantive revision of provisions of the Texas Probate Code relating to durable powers of attorney, guardianships, and other related proceedings and alternatives, and the redesignation of certain other provisions of the Texas Probate Code, including conforming amendments and repeals.
Author: Hartnett
Bill History
Bill Text

Relevance: This is the recodification of the guardianship portion of the Probate Code, as well as the power of attorney portion of the Probate Code, into the new Estates Code, to be effective January 1, 2014. This is intended as a nonsubstantive revision of those statutes and was prepared by the Legislative Council. 

Enacted-Effective 9/1/11: SB 220 -- Guardianships and DADS

Caption: Relating to guardianships, including the assessment of prospective wards for, and the provision of, guardianship services by the Department of Aging and Disability Services.
Author:  Nelson
Bill History
Bill Text 

 Relevance:  Revises sections of the Probate Code regarding guardianship costs, notice, citation, removal and reinstatement of a guardian and permanent successor guardians.

See "Ad litem fees and attorneys' fees in guardianships: who pays?" on texasprobate.com.

Enacted-Effective 9/1/11: SB 481 -- Removal/reinstatement of guardian

Caption:  Relating to the removal of a guardian of an incapacitated person ordered by a court.
Author:  Harris
Bill History
Bill Text 

Relevance:  Requires notice to a removed guardian and a hearing on an application for reinstatement as guaridian within 60 days of the date of removal.

Enacted-Effective 9/1/11: SB 1196 -- REPTL guardianship bill

Caption: Relating to guardianships and alternatives to guardianship for persons who have physical disabilities or who are incapacitated.
Author: Rodriguez
Bill History
Bill Text

Relevance: This bill is supported by the Real Estate, Probate and Trust Law Section of the State Bar of Texas. It makes multiple changes to the guardianship statutes in the Texas Probate Code. These include:

• Changing the guardianship jurisdiction statutes in a way that is consistent to 2009's changes to the decedents' estates jurisdiction statutes. This is related to the enactment of the new Estates Code. (Sections 601, 605, 606A, 607A, 607B, 607C, 607D, 607E, and other technical changes) 
• Clarifies that an attorney ad litem appointed in a temporary guardianship continues to serve until a permanent guardian is appointed or the guardianship application is denied. (Section 646)
• Makes it easier for the conservator of an adult disabled child to obtain a guardianship of that child. (Section 682A)
• Fixes some technical problems caused by 2009 changes to the physician's certificate requirements for guardianships. (Section 687)
• Eliminates the need to list other co-owners of property on guardianship inventories. (Sections 729 and 730)
• Clarifies that a guardianship of the estate shall be settled when all of the guardianship assets are transferred to a pooled trust subaccount. (Section 745)
• Changes the maximum age for a guardian of a person to "voluntarily" admit the ward to an inpatient psychiatric facility from 16 to 18. (Section 770)
• Makes it possible to apply to the court for permission to transfer a portion of the ward's estate "as necessary to qualify the ward for government benefits." (Section 865)
• Permits a person with a physical disability only to apply for creation of a guardianship management trust (which may be necessary to qualify for governmental benefits). (Sections 867, 868, 868C, 869 and 870) The court cannot require the trustee of a trust created for a person with a physical disability only to file annual or final accountings. (Sections 871 and 873)
• Requires the trustee of a guardianship management trust to file an "initial accounting" (the equivalent of an inventory) within 30 days after the date a trustee receives property. (Section 870A
• Clarifies who can apply for the establishment of a pooled trust subaccount and who is eligible for a pooled trust subaccount. (Sections 910 and 911)

See "REPTL bills would make changes to trusts, guardianships and powers of attorney" on texasprobate.com. 

Awaiting Governor's Signature: SB 1 (First Called Session) -- Transfers of guardianships

Caption: Relating to certain state fiscal matters; providing penalties.
Author: Duncan, Shapiro
Bill History
Bill Text

Relevance: In a rarity for probate and guardianship legislation, SB1 in the First Called (Special) Session makes some changes to the guardianship portion of the Probate Code. It is primarily a school finance bill, but it has been loaded up with provisions from bills which failed to pass during the regular session. It makes a number of changes to the provisions regarding transfer of guardianship proceedings (Sections 612, 613, 614, 615, 616, 617, 618 and 619), including requiring the guardian of a guardianship that is transferred to give a new bond payable to the court to which the guardianship is transferred or to file a rider to the existing bond noting the court to which the guardianship is transferred. (Section 614) The bill also requires the court to which the guardianship is transferred to conduct a hearing within 90 days to consider modifying the rights, duties, and powers of the guardian. (Section 619) SB1 also alters the procedures for dealing with interstate guardianships (Sections 892, 893, 894 and 895). New Section 895 provides a means for a court in which a guardianship proceeding is pending to determine if it is the most appropriate forum for the guardianship. 

x-Did Not Pass: HB 836 -- Mental health services for minors

Caption: Relating to certain persons receiving mental health services.
Author: Shelton
Bill History
Bill Text 

Relevance:  This bill would permit the guardian of a person 16 years of age or older in certain circumstances to voluntarily admit the person to a public or private inpatient psychiatric facility for up to 14 days

x-Did Not Pass: HB 1325 -- Ad litem fees in guardianships

Caption:  Relating to payment of the costs for services of a guardian ad litem and attorney ad litem in a guardianship proceeding.
Author:  Hartnett
Bill History
Bill Text

Relevance:  This bill would permit the court to order the applicant to pay ad litem fees, but only if the proposed ward's assets are insufficient. 

See "Ad litem fees and attorneys' fees in guardianships: who pays?" on texasprobate.com.

x-Did Not Pass: HB 1837 -- REPTL guardianship bill

Caption: Relating to guardianships and alternatives to guardianship for persons who have physical disabilities or who are incapacitated.
Author: Hartnett
Bill History
Bill Text

Relevance: This bill is supported by the Real Estate, Probate and Trust Law Section of the State Bar of Texas. It makes multiple changes to the guardianship statutes in the Texas Probate Code. These include:

• Changing the guardianship jurisdiction statutes in a way that is consistent to 2009's changes to the decedents' estates jurisdiction statutes. This is related to the enactment of the new Estates Code. (Sections 601, 605, 606A, 607A, 607B, 607C, 607D, 607E, and other technical changes) 
• Clarifies that an attorney ad litem appointed in a temporary guardianship continues to serve until a permanent guardian is appointed or the guardianship application is denied. (Section 646)
• Eliminates the 5% of income and 5% of disbursement method of determining guardianship compensation in favor of a "reasonable compensation" standard. (Section 665)
• Makes it easier for the conservator of an adult disabled child to obtain a guardianship of that child. (Section 682A)
• Fixes some technical problems caused by 2009 changes to the physician's certificate requirements for guardianships. (Section 687)
• Eliminates the need to list other co-owners of property on guardianship inventories. (Sections 729 and 730)
• Clarifies that a guardianship of the estate shall be settled when all of the guardianship assets are transferred to a pooled trust subaccount. (Section 745)
• In the settlement of a guardianship estate, the attorney ad litem's fees may be taxed as costs instead of automatically coming from the ward's estate. (Section 745)
• Changes the maximum age for a guardian of a person to "voluntarily" admit the ward to an inpatient psychiatric facility from 16 to 18. (Section 770)
• Makes it possible to apply to the court for permission to transfer a portion of the ward's estate "as necessary to qualify the ward for government benefits." (Section 865)
• Permits a person with a physical disability only to apply for creation of a guardianship management trust (which may be necessary to qualify for governmental benefits). (Sections 867, 868, 868C, 869 and 870) The court cannot require the trustee of a trust created for a person with a physical disability only to file annual or final accountings. (Sections 871 and 873)
• Requires the trustee of a guardianship management trust to file an "initial accounting" (the equivalent of an inventory) within 30 days after the date a trustee receives property. (Section 870A
• Clarifies who can apply for the establishment of a pooled trust subaccount and who is eligible for a pooled trust subaccount. (Sections 910 and 911)

See "REPTL bills would make changes to trusts, guardianships and powers of attorney" on texasprobate.com. 

x-Did Not Pass: HB 2744 -- Procedural changes affecting guardianships

Caption: Relating to guardianships, including the functions of the Guardianship Certification Board.
Author: Lucio
Bill History
Bill Text

Relevance: This bill would amend 8 sections of the Probate Code to add procedural requirements in guardianships, including adding to the duties of the court investigator, requiring certain persons to be called as witnesses at hearings to appoint a guardian, adding to the list of persons entitled to notice of certain proceedings, requiring a full hearing with notice before a removed guardian is permanently replaced, and permitting a removed guardian who is a family member or friend to seek reinstatement if he or she is replaced by a private professional guardian.

x-Did Not Pass: HB 2900 -- Guardianship transfers

Caption: Relating to guardianships.
Author: Hartnett
Bill History
Bill Text

Relevance: HB 2900 addresses transfers of guardianship (both intrastate and interstate) and the location where a hearing on a guardianship application may be held.

x-Did Not Pass: SB 286 -- Costs in guardianships

Caption:  Relating to attorney's fees and other amounts taxed as costs in guardianship proceedings.
Author:  Harris
Bill History
Bill Text 

Relevance:  This bill would amend Probate Code Sections 665A and 665B to permit the court to allocate costs in a guardianship proceeding among the parties as the court finds is fair and just.  Costs include compensation of attorneys ad litem, guardians ad litem, mental health professionals and interpreters.

See "Ad litem fees and attorneys' fees in guardianships: who pays?" on texasprobate.com.

x-Did Not Pass: SB 1027 -- Attorney/guardians can't provide legal services

Caption: Relating to the provision of legal services by a guardian in connection with a guardianship.
Author: Harris
Bill History
Bill Text

Relevance: This bill would add Section 773A to the Probate Code, reading: "An attorney who services as guardian may not provide legal services in connection with the guardianship." It would repeal Section 665D, which was added in 2009 and which provides that an attorney serving as guardian who also provides legal services (1) must file detailed billing with the court and (2) "is not entitled to payment of attorney's fees for guardianship services that are not legal services."

x-Did Not Pass: SB 1299 -- Recodification of guardianship statutes

Caption: Relating to the nonsubstantive revision of provisions of the Texas Probate Code relating to durable powers of attorney, guardianships, and other related proceedings and alternatives, and the redesignation of certain other provisions of the Texas Probate Code, including conforming amendments and repeals.
Author: Duncan
Bill History
Bill Text

Relevance: This is the recodification of the guardianship portion of the Probate Code, as well as the power of attorney portion of the Probate Code, into the new Estates Code, to be effective January 1, 2014. This is intended as a nonsubstantive revision of those statutes and was prepared by the Legislative Council.