S.B. No. 997

REAL ESTATE, PROBATE AND TRUST LAW SECTION GUARDIANSHIP BILL

Effective Date: September 1, 1997

AN ACT

relating to the procedures for and administration of guardianships.

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

SECTION 1.  Subsection (c), Section 609, Texas Probate Code, is amended to read as follows:

(c)  The court to which a transfer is made under this section shall apply the procedural and substantive provisions of the Family Code, including Sections 155.005 and 155.205 [Section 11.05(h), and its subsequent amendments], in regard to enforcing an order rendered by the court from which the proceeding was transferred.

SECTION 2.  Subsections (d) and (f), Section 633, Texas Probate Code, are amended to read as follows:

(d)  The court clerk, at the applicant's request, or the applicant shall mail a copy of the notice by registered or certified mail, return receipt requested, to the following persons if their whereabouts are known or can be reasonably ascertained:

(1)  all adult siblings and all adult children of a proposed ward;

(2)  the administrator of a nursing home facility or similar facility in which the proposed ward resides;

(3)  the operator of a residential facility in which the proposed ward resides; [and]

(4)  a person whom the applicant knows to hold a power of attorney signed by the proposed ward;

(5)  a person designated to serve as guardian of the proposed ward by a written declaration under Section 679 of this code, if the applicant knows of the existence of the declaration;

(6)  a person designated to serve as guardian of the proposed ward in the probated will of the last surviving parent of the ward; and

(7)  a person designated to serve as guardian of the proposed ward by a written declaration of the proposed ward's last surviving parent, if the declarant is deceased and the applicant knows of the existence of the declaration.

(f)  The court may not act on an application for the creation of a guardianship until the Monday following the expiration of the 10-day period beginning the date service of notice and citation has been made as provided by Subsections (b), (c), and (d)(1) of this section. The validity of a guardianship created under this chapter is not affected by the failure of the clerk or applicant to comply with the requirements of Subsections (d)(2)-(7) [(d)(2)-(4)] of this section.

SECTION 3.  Section 671, Texas Probate Code, is amended by adding Subsection (e) to read as follows:

(e)  The court may request an applicant or court-appointed fiduciary to produce other information identifying an applicant, ward, or guardian, including social security numbers, in addition to identifying information the applicant or fiduciary is required to produce under this code. The court shall maintain the information required under this subsection, and the information may not be filed with the clerk.

SECTION 4.  Subsection (a), Section 677A, Texas Probate Code, is amended to read as follows:

(a)  A written declaration appointing an eligible person to be guardian of the person of the parent's child under Section [676(d) or] 677(b) of this code must be attested to by at least two credible witnesses 14 years of age or older who are not named as guardian or alternate guardian in the declaration.

SECTION 5.  Section 682, Texas Probate Code, is amended to read as follows:

Sec. 682.  APPLICATION; CONTENTS. Any person may commence a proceeding for the appointment of a guardian by filing a written application in a court having jurisdiction and venue. The application must be sworn to by the applicant and state:

(1)  the name, sex, date of birth, and address of the proposed ward;

(2)  the name, relationship, and address of the person the applicant desires to have appointed as guardian;

(3)  [the social security number of the proposed ward and of the person the applicant desires to have appointed as guardian;

[(4)]  whether guardianship of the person or estate, or both, is sought;

(4) [(5)]  the nature and degree of the alleged incapacity, the specific areas of protection and assistance requested, and the limitation of rights requested to be included in the court's order of appointment;

(5) [(6)]  the facts requiring that a guardian be appointed and the interest of the applicant in the appointment;

(6) [(7)]  the nature and description of any guardianship of any kind existing for the proposed ward in this or any other state;

(7) [(8)]  the name and address of any person or institution having the care and custody of the proposed ward;

(8) [(9)]  the approximate value and description of the proposed ward's property, including any compensation, pension, insurance, or allowance to which the proposed ward may be entitled;

(9) [(10)]  the requested term, if known, of the guardianship;

(10) [(11)]  the name and address of any person whom the applicant knows to hold a power of attorney signed by the proposed ward and a description of the type of power of attorney;

(11) [(12)]  if the proposed ward is a minor, the names of the parents and next of kin of the proposed ward and whether either or both of the parents are deceased;

(12) [(13)]  if the proposed ward is a minor, whether the minor was the subject of a legal or conservatorship proceeding within the preceding two-year period and, if so, the court involved, the nature of the proceeding, and the final disposition, if any, of the proceeding;

(13) [(14)]  if the proposed ward is 60 years of age or older, the names and addresses, to the best of the applicant's knowledge, of the proposed ward's spouse, siblings, and children, or, if there is no spouse, sibling, or child, the names and addresses of the proposed ward's next of kin;

(14) [(15)]  if the proposed ward is a missing person:

(A)  the last known residence of the missing person;

(B)  the name of the executive department of the United States reporting the proposed ward as a missing person, the date of the report, and the last known whereabouts of the missing person; and

(C)  the names and addresses of the missing person's spouse, children, and parents, or, if there is no spouse, child, or parent, the names and addresses of the missing person's next of kin;

(15) [(16)]  facts showing that the court has venue over the proceeding; and

(16) [(17)]  if applicable, that the person whom the applicant desires to have appointed as a guardian is a private professional guardian who has complied with the requirements of Section 697 of this code.

SECTION 6.  Subsection (a), Section 774, Texas Probate Code, is amended to read as follows:

(a)  On application, and if authorized by an order, the guardian of the estate may renew or extend any obligation owed by or to the ward. On written application to the court and when a guardian of the estate deems it is in the best interest of the estate, the guardian may, if authorized by an order of the court:

(1)  purchase or exchange property;

(2)  take a claim or property for the use and benefit of the estate in payment of a debt due or owing to the estate;

(3)  compound a bad or doubtful debt due or owing to the estate;

(4)  make a compromise or a settlement in relation to property or a claim in dispute or litigation; [and]

(5)  compromise or pay in full any secured claim that has been allowed and approved as required by law against the estate by conveying to the holder of the secured claim the real estate or personalty securing the claim, in full payment, liquidation, and satisfaction of the claim, and in consideration of cancellation of a note, deed of trust, mortgage, chattel mortgage, or other evidence of a lien that secures the payment of the claim; and

(6)  abandon worthless or burdensome property and the administration of that property. Abandoned real or personal property may be foreclosed on by a secured party, trustee, or mortgagee without further order of the court.

SECTION 7.  Subpart F, Part 4, Chapter XIII, Texas Probate Code, is amended by adding Section 776A to read as follows:

Sec. 776A.  SUMS ALLOWABLE FOR EDUCATION AND MAINTENANCE OF WARD'S SPOUSE OR DEPENDENT. (a)  Subject to Section 777 of this code and on application to the court, the court may order the guardian of the estate of a ward to expend funds from the ward's estate for the education and maintenance of the ward's spouse or dependent.

(b)  In determining whether to order the expenditure of funds from a ward's estate for the ward's spouse or dependent, as appropriate, in accordance with this section, the court shall consider:

(1)  the circumstances of the ward, the ward's spouse, and the ward's dependents;

(2)  the ability and duty of the ward's spouse to support himself or herself and the ward's dependent;

(3)  the size of the ward's estate;

(4)  a beneficial interest the ward or the ward's spouse 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 or dependent.

(c)  A person who makes an application to the court under this section shall mail notice of the application by certified mail to all interested persons.

SECTION 8.  Subsection (a), Section 783, Texas Probate Code, is amended to read as follows:

(a)  Within one month after receiving letters, personal representatives of estates shall send to the comptroller of public accounts by certified or registered mail if the ward [decedent] remitted or should have remitted taxes administered by the comptroller of public accounts and publish in some newspaper, printed in the county where the letters were issued, if there be one, a notice requiring all persons having a claim against the estate being administered to present the claim within the time prescribed by law. The notice must include the time of issuance of letters held by the representative, the address to which a claim may be presented, and an instruction of the representative's choice that a claim be addressed in care of the representative, in care of the representative's attorney, or in care of "Representative, Estate of __________" (naming the estate).

SECTION 9.  Section 865, Texas Probate Code, is amended by amending Subsection (a) and adding Subsection (e) to read as follows:

(a)  On application of the guardian of the estate or any interested party and after the posting of notice [to all interested persons and to other persons as directed by the court], the court, after hearing, may enter an order that authorizes the guardian to apply the principal or income of the ward's estate that is not required for the support of the ward or the ward's family during the ward's lifetime toward the establishment of an estate plan for the purpose of minimizing income, estate, inheritance, or other taxes payable out of the ward's estate on a showing that the ward will probably remain incapacitated during the ward's lifetime. On the ward's behalf, the court may authorize the guardian to make gifts, outright or in trust, of the ward's personal property or real estate to or for the benefit of:

(1)  an organization to which charitable contributions may be made under the Internal Revenue Code and in which it is shown the ward would reasonably have an interest;

(2)  the ward's spouse, descendant, or other person related to the ward by blood or marriage [heirs at law] who are identifiable at the time of the order;

(3)  a devisee under the ward's last validly executed will, trust, or other beneficial instrument if the instrument exists [there is a will]; and

(4)  a person serving as guardian of the ward if the person is eligible under either Subdivision (2) or (3) of this subsection.

(e)  A person who makes an application to the court under this section shall mail notice of the application by certified mail to:

(1)  all devisees under a will, trust, or other beneficial instrument relating to the ward's estate;

(2)  the ward's spouse;

(3)  the ward's dependents; and

(4)  any other person as directed by the court.

SECTION 10.  A court may modify a guardianship in effect on September 1, 1997, to conform with the requirements of the Texas Probate Code, as amended by this Act, on the court's own motion or on application by the ward, the guardian, or any other interested person or entity.

SECTION 11.  Except as provided by Section 10 of this Act, the change in law made by this Act applies only to a proceeding for the appointment of a guardian instituted on or after the effective date of this Act. A proceeding for the appointment of a guardian instituted before the effective date of this Act is governed by the law in effect on the date on which the proceeding was instituted, and the former law is continued in effect for that purpose.

SECTION 12.  This Act takes effect September 1, 1997.

SECTION 13.  The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended.


Courtesy of Glenn M. Karisch, Ikard & Golden, P. C., Austin, Texas. This page was last revised May 9, 1997.