Zaffirini’s guardianship code rewrite

The text as introduced · 2,411 words

89R9882 EAS-F

By: Zaffirini
S.B. No. 1760

A BILL TO BE ENTITLED

AN ACT

relating to guardianships for persons who are incapacitated;

changing a fee.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. 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 2. Section 1023.004(a), Estates Code, is 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.

SECTION 3. 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 4. Sections 1023.006(a), (b), (c), (d), (e), and

(g), Estates Code, are amended to read as follows:

(a) Not later than the 10th working day after the date an

order of transfer is signed under Section 1023.002 or 1023.005, the

clerk shall record any unrecorded papers of the guardianship

required to be recorded. On payment of the clerk's fee, the clerk

shall send, using the electronic filing system established under

Section 72.031, Government Code, to the county clerk of the county

to which the guardianship was ordered transferred:

(1) a transfer certificate and certified index of

transferred documents;

(2) a copy of each [ final ] order;

(3) a copy of the order of transfer signed by the

transferring court;

(4) a copy of the original papers filed in the

transferring court , including any papers previously received on

transfer from a court in another county ;

(5) a copy of the transfer certificate and certified

index of transferred documents from each previous transfer , if

applicable ; and

(6) a bill of any costs accrued in the transferring

court.

(b) The clerk of the transferring court shall use the

standardized transfer certificate and certified index of

transferred documents form developed 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

the documents transferred under Subsection (a) , including

transferred pleadings, orders, and all other papers filed into the

case record .

(d) The clerk of the court to which the proceeding is

transferred shall , subject to Section 1023.005 :

(1) accept documents transferred under Subsection

(a);

(2) docket the proceeding [ suit ]; and

(3) notify, using the electronic filing system

established under Section 72.031, Government Code, all parties, the

clerk of the transferring court, and, if appropriate, the

transferring court's local registry that the proceeding [ suit ] has

been docketed.

(e) The clerk of the transferee court shall physically or

electronically mark or stamp the transfer certificate and certified

index of transferred documents to evidence the date and time of

acceptance under Subsection (d), but may not physically or

electronically mark or stamp any other document transferred under

Subsection (a).

(g) The clerks of both the transferee and transferring

courts may each produce under Chapter 51, Government Code,

certified or uncertified copies of documents transferred under

Subsection (a) but must include a copy of the transfer certificate

and certified index of transferred documents with each document

produced.

SECTION 5. 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 6. 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 7. 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 8. The heading to 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 ].

SECTION 9. Section 1156.052, Estates Code, is amended by

amending Subsections (a) and (b) and adding Subsection (d) to read

as follows:

(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 ].

(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 10. 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 11. 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 12. 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 13. 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 14. 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 on the proposed ward's

appointed attorney.

SECTION 15. Section 1023.008, Estates Code, is repealed.

SECTION 16. (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), 1023.005(c), and

1023.006(a), (b), (c), (d), (e), and (g), 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. An

application filed or motion made before the effective date of this

Act is governed by the law in effect on the date the application was

filed or motion was made, and the former law is continued in effect

for that purpose.

(c) Sections 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 17. This Act takes effect September 1, 2025.