2015 Texas Guardianship Legislative Update

1. 2015 Texas Guardianship Legislative Update Steven D. Fields Probate Court Two, Tarrant County sdfields@tarrantcounty.com 817-884-1049

2. Appointment Wheels • SB 1876 (Zaffirini) – effective 9.1.15 • Government Code 37.001 – 37.005 • The administrative judges in statutory probate court counties, at the request of a court, are to maintain rotation lists for the courts to use in appointing AALs, GALs, mediators and private professional guardians • A court may establish more than one list that is categorized by the type of case and the person’s qualifications • Lists are to be posted at courthouse and on court website

3. Appointment Wheels • The court shall appoint the person whose name appears first on the list unless: • Parties agree on an appointee who is then court approved; or • On finding of good cause, the appointment of a another person is required on a complex matter because the person possesses relevant specialized education, training, certification or skill After appointment, the court shall place that person’s name at the end of the list.

4. Reports on Court Appointments • SB 1369 (Zaffirini) • Each court shall prepare a report on court appointments for each state fiscal year. • Reports to include appointments of: • Attorneys ad litem • Guardians ad litem • Guardians (attorneys and private professionals) • Mediators • Competency evaluators (physicians and psychologists)

5. Reports on Court Appointments • Reports to include this information: • Name of person appointed • Name of the judge • Date of the order approving compensation • Number and style of each case to which person appointed • Total number of cases for year to which person was appointed • If available, number of hours and hourly rate, flat fee or pro bono hours of credit for year for each person appointed • Total amount of compensation paid for year to person appointed Reports to be submitted to Office of Court Administration by November 1 of each year and posted at courthouse and on any website of the court (no state grant funds if fail to comply)

6. Central Database for Guardianships • HB 3424 (Smithee) • Office of Court Administration shall conduct a study on the feasibility of developing and maintaining a central database of the names of all incapacitated persons and their guardians and contact information for all guardians in the State • Report from OCA is due 12.1.16 • The initial draft of this bill had the Department of Family and Protective Services maintaining this database

7. HB 39 - Alternatives to GS • Smithee - Judicial Council – Chief Justice Hecht • GS Reform & Decision Making group supported • Revised on House floor to fix problem of AAL having to tell court if GS necessary • Supported Decision (SB1881) added in Senate

8. HB 39 - Alternatives • 1002.0015 added “Alternatives to GS” • Medical POA • Durable financial POA • Representative Payee • Joint Bank Account • Management Trust • Special Needs Trust • Designation of Guardian before need arises • Supported Decision Making agreement

9. HB 39 – Supports & Services • 1002.031 added – “Supports & Services” are formal or informal resources and assistance that enable individuals to: • Meet food, clothing & shelter needs; • Care for physical or mental health; • Manage financial affairs; or • Make decisions about residence, voting, marriage and driving

10. HB 39 – Attorney Ad Litem • 1054.004 is amended to require AALto discuss with proposed ward: • Whether AAL thinks a GS is necessary; • Whether alternatives to GS would meet needs of PW and avoid need for appointment of G; & • Specific powers or duties of the G that should be limited if the PW receives supports and services

11. HB 39 – Guardian ad Litem • 1054.054 is amended to provide that GAL shall investigate: • whether a GS is necessary; and • evaluate alternatives to GS and supports and services available to PW that would avoid the need for GS; and • report that information to the court.

12. HB 39 – Certification for Attorneys • 1054.201 is amended to require attorneys for an applicant for guardianship to be certified by the State Bar of Texas: • as having completed a course of study in GS law consisting of four hours of credit • including one hour on alternatives to GS and supports and services available to proposed wards. • Court appointed attorneys (AAL & GAL) now have four hour certification requirement too

13. HB 39 – GS Applications • 1101.001 is amended to require that the GS application state: • Whether alternatives to GS and available supports and services to avoid GS were considered; and • Whether any alternatives or supports are feasible and would avoid the need for GS • Specifically whether the PW’s right to make decisions regarding PW’s residence should be terminated

14. HB 39 – Court Findings • 1101.101 is amended to require that before appointing a guardian, the court must find by clear & convincing evidence that: • Alternatives to GS that would avoid the need for GS have been considered and determined not to be feasible; and • Supports & services available to the PW that would avoid the need for GS have been considered and determined not to be feasible

15. HB 39 – Partial Incapacity • 1101.101 amended by adding new sub (c) that provides that if the court finds that the proposed ward lacks the capacity to do some, but not all, of the tasks necessary to care for himself or manage his property (partial incapacity) – • The court must specifically state whether the proposed ward lacks the capacity, or lacks sufficient capacity with supports and services, to make personal decisions regarding: • Residence • Voting • Operating a motor vehicle; and • Marriage

16. HB 39 – Partial Incapacity • 1101.152(a) is amended to provide that: • If it is found that PW lacks the capacity to some, but not all, of the tasks necessary to care for himself or manage his property with or without supports and services, the court may appoint a G with limited powers and permit the PW to care for himself, including making personal decisions regarding residence, or to manage his property commensurate with the PW’s ability 1101.152(b) amended to provide that the Order specify: Whether the IP retains the right to make residential decisions And, the specific rights and powers retained by the person: with the necessity for supports & services; and without the necessity for supports & services;

17. HB 39 – Total Incapacity • 1101.151(a) is amended: • If it is found that the PW is totally without capacity to: • Care for himself • Manage his property • Operate a motor vehicle • Make personal decisions regarding residence (new); and • Vote in a public election The court may appoint a G of the PW’s person or estate, or both, with full authority over the IP “except as provided by law” 1101.151(b)(5) now requires that the GS order must specify that the PW does not have the capacity to make personal decisions regarding residence.

18. HB 39 – Physician’s Certificate • 1101.103(b) is amended to: • State whether a guardianship is necessary for the PW, and if so, whether specific powers or duties of the G should be limited if the PW receives supports and services. • State how PW’s ability to make decisions is affected by the PW’s physical or mental health, including PW’s ability to: • Solve problems (replaces “perform simple calculations”) • Administer to daily life activities (adds) “with and without supports and services.”

19. HB 39 – Preference of IP • 1104.002 amended to provide: • Court shall give due consideration to the incapacitated person’s preference of the person to be appointed guardian • Regardless of whether the IP has designated by declaration a guardian before the need arises under Subchapter E

20. HB 39 – Placement of Wards • 1151.051 is amended to provide: • Except in cases of emergency, a GP of a W may only place the W in a more restrictive care facility if: • GP provides notice of the proposed placement to the court and any person who has requested notice • Court orders new placement after mandatory hearing if court wants one or if any person objects to the proposed placement before the eighth business day after the person’s receipt of the notice • Without court order on the seventh business day after the court’s receipt of notice if the court does not schedule a hearing and no objections have been filed

21. HB 39 – Reevaluation of Ward • 1101.103(b) is amended to require physician’s certificate to: • State whether improvement in the PW’s physical condition and mental functioning is possible and, if so, state the period after which the PW should be reevaluated to determine whether a GS continues to be necessary. • 1101.153 amended to provide: • If physician’s certificate stated that improvement in the W’s physical condition or mental functioning is possible and specified a period of less than a year after which the W should be evaluated to determine continued necessity for GS, • GS Order must include the date by which the G must submit to the court an updated physician’s certificate.

22. HB 39 – Termination of GS • 1202.001(b) is amended to provide that a guardianship shall be settled and closed when the ward: • (2) – if found by the court to have full capacity, or sufficient capacity with supports and services, to care for himself or herself and to manage the ward’s property • 1202.001(c) – amended to modify the ability to restrict restoration requests if physician’s certificate lists period for reevaluation that is less than one year.

23. HB 39 – Modify or Restore • 1202.051 amended to allow the ward or any person interested in the ward’s welfare to apply for a court order: • (2) finding that the ward lacks the capacity, or lacks sufficient capacity with supports and services, to do some of all of the tasks necessary… and granting additional powers for G; • (3) finding that the ward has the capacity, or sufficient capacity with supports and services, to do some, but not all, of the tasks necessary… and (B) permitting the ward to care for himself or herself, make personal decisions regarding residence, or manage the ward’s own financial affairs commensurate with the ward’s ability, with or without supports and services.

24. HB 39 – Modification Hearing • 1202.151(a) is amended to provide that at the hearing on the application for restoration or modification of the GS, • Court is to hear evidence relevant to the restoration or modification of the GS, including whether: • The guardianship is necessary; and • Specific powers or duties of the guardian should be limited if the ward receives supports and services 1202.153(c) is amended to provide that before the court modifies the guardianship, the court must find by a preponderance of the evidence that the current nature and degree of the ward’s incapacity, with or without supports and services, warrants a modification of the GS and that some of the W’s rights need to be restored, with or without supports and services.

25. HB 39 – Modification Order • 1202.154(a) is amended to provide that the court order to completely restore a ward’s capacity or to modify a GS must state: • (4) if applicable, any necessary supports and services for the restoration of the ward’s capacity or modification of the guardianship. • 1202.156 is amended to requires a court order modifying a guardianship to specify (4) if the ward’s incapacity resulted from a mental condition, whether the ward retains the right to vote and make personal decisions regarding residence.

26. HB 39 – Substitutes for GS • Subtitle I (starting with Chapter 1351) which formerly mentioned Alternatives to Guardianship is renamed as: • OTHER SPECIAL PROCEEDINGS AND SUBSTITUTES FOR GUARDIANSHIP • This includes sale of a minor or incapacitated person’s interest in real property with proceeds paid to court registry and management and control of an incapacitated spouse’s property with a community administrator.

27. SB 1881 – Supported Decisions • Subtitle I, Title 3, Estates Code, amended with Chapter 1357 • CH. 1357 . SUPPORTED DECISION-MAKING AGREEMENT ACT • 1357.002 Definitions • Adult – 18 or older or disabilities removed • Disability – impairment limiting one of more major life activities • Supported-decision making – process of supporting an adult with a disability to enable adult to make life decisions (residential, medical, employment) without impeding self-determination • Supported decision-making agreement – an agreement between an adult with a disability and a supporter • Supporter – an adult who enters a SDMA with adult w/ disability

28. SB 1881 – Supported Decisions • 1357.003 Purpose – to recognize a less restrictive alternative to GS for adults with disabilities who need assistance with decisions regarding daily living but who are not considered IP for purposes of establishing a GS • 1357.056 Form of Supported Decision-Making Agreement – a supported decision making agreement is valid only if it is substantially the form set out in this statute. The agreement is signed and acknowledged before a notary by the adult with disability and the supporter and is also signed in the presence of two witnesses who also sign the agreement. • 1357.054 Access to Personal Information – if supporter collects HIPAA info, supporter to keep it confidential

29. SB 1881 – SDM Agreements • 1357.051 – Scope of Agreement. An adult with a disability may voluntarily, without undue influence or coercion, enter into a SDMA with a supporter authorizing any or all of these: • Provide supported decision-making, including assistance in understanding the options, responsibilities, and consequences of the adult’s life decisions, without making those decisions on behalf of the adult with a disability • Assist with collection of medical, psychological, financial, educational, or treatment records that are relevant to a given life decision • Assist the adult to understand the relevant information and to communicate the adult’s decision to appropriate persons

30. SB 1881 – SDM Agreements • 1357.101 Reliance on Agreement – a person who receives a SDMA shall rely on the agreement and is not subject to criminal or civil liability for an act or omission done in good faith and in reliance on a SDMA • 1357.102 Reporting of Suspected Abuse – if a person who receives a SDMA has cause to believe that the adult with a disability is being abused, neglected or exploited by the supporter, the person shall report it to APS and the form agreement has a warning in capital letters and underlined that contains the APS abuse hotline and website. • Passed in Senate, now in House Human Services Committee

31. SB 1882 – Ward’s Bill of Rights • New Subchapter H is added to Chapter 1151 Estates Code • SUBCHAPTER H. RIGHTS OF WARDS – 24 Rights • 1151.351. BILL OF RIGHTS FOR WARDS. • (a) A ward has all the rights, benefits, responsibilities, and privileges grants by the constitution and laws of this state and the United States, except where specifically limited by a court-ordered guardianship or whether otherwise lawfully restricted.

32. SB 1882 – Bill of Rights • 1151.351(c) – A ward under GS may petition the probate court for the specific enforcement of any right in subsection (b). • 1151.351(d) – the court may award attorney’s fees to an attorney appointed or retained to represent a ward in a proceeding to enforce the ward’s rights under this section. • 1151.351(e) – this section does not supersede or abrogate other remedies existing in law.

33. SB 1882 – Bill of Rights • 1151.351(b) – Unless limited by a court or otherwise lawfully restricted, a ward has the right: • To have a copy of the GS Order, Letters of GS, and contact information for the probate court that issued Order & Letters • To have a GS that encourages maximum self-reliance and independence with eventual goal of self-sufficiency • To be treated with respect, consideration, and recognition of the ward’s dignity and individuality

34. SB 1882 – Bill of Rights • To reside and receive support services in the most integrated setting, including home-based or other community-based settings, as required by Title II of the ADA • To consideration of current and previously stated personal preferences, desires, medical and psychiatric treatment preferences, religious beliefs, living arrangements, and other preferences and opinions • To financial self-determination for all public benefits after essential living expenses and health needs are met to have access to a monthly personal allowance

35. SB 1882 – Bill of Rights • To receive timely and appropriate health care and medical treatment that does not violate the ward’s rights granted by the constitution and laws of Texas and the US • To exercise full control of all aspects of life not specifically granted by the court to the guardian • To control the ward’s personal environment based on the ward’s preferences

36. SB 1882 – Bill of Rights • To complain or raise concerns regarding the G or GS to the court, including living arrangements, retaliation by the G, conflicts of interest between the G and service providers, or a violation of any rights under this section • To receive notice in the W’s native language, or preferred mode of communication, and in a manner accessible to the W and appear before the court to express the W’s preferences and concerns regarding whether the GS should be continued, modified or terminated • To have a court investigator, GAL or AAL appointed by the court to investigate a complaint received by the court from the W or any person about the GS

37. SB 1882 – Bill of Rights • To participate in social, religious, and recreational activities, training, employment, education, habilitation, and rehabilitation of the W’s choice in most integrated setting • To self-determination in the substantial maintenance, disposition, and management of real and personal property after essential living and health needs are met, including the right to receive notice and object … and express preferences regarding this property and to receive notice of its disposition • To personal privacy and confidentiality in personal matters, subject to state and federal law

38. SB 1882 – Bill of Rights • To unimpeded, private and uncensored communication and visitation with persons of W’s choice, except that if G determines that certain communication or visitation causes substantial harm to the ward, a G may limit, supervise or restrict communication or visitation, but only to the extent necessary to protect the W from substantial harm, and W may request a hearing to remove restrictions imposed by G • Except as limited by 1054.006, to petition the court and retain counsel of the W’s choice who holds the required certification to represent the W’s interest for capacity restoration, GS modification, appointment of a different G or other appropriate relief including transition to a supported decision-making agreement

39. SB 1882 – Bill of Rights • To vote in a public election, mary, and retain a license to operate a motor vehicle, unless restricted by the court • To personal visits from the G or the G’s designee at least once every three months, but more often, if necessary, unless the court orders otherwise • To be informed of contact information for Disability Rights Texas, and to communicate and meet privately with its representatives

40. SB 1882 – Bill of Rights • To be informed of contact information and purpose of an independent living center, and aging and disability resource center, and the local mental health and intellectual and developmental disability center, and to communicate and meet with representatives of these organizations • To be informed of contact information and purpose of the Judicial Branch Certification Commission and the procedure for filing a complaint against a certified guardian

41. SB 1882 – Bill of Rights • To contact DFPS to report abuse, neglect, exploitation, or violation of personal rights without fear of punishment, interference, coercion or retaliation • To have the G, on appointment and on annual renewal of GS, explain the rights delineated in this subsection in the ward’s native language, or preferred mode of communication, and in a manner accessible to the ward Good luck! This is the committee substitute language negotiated between DADS & TCDD & GRDMS

42. HB 2665 – Access to Wards • 1151.055 added Application by Certain Relatives for Access to Ward; Hearing and Court Order • This is the Casey Kasem bill being proposed by his daughter in several different states. • 1151.055(a) provides that a relative of a ward (those entitled to notice on GS application) may file an application requesting access and visitation or communication with the ward • 1151.055(b) provides that the court shall schedule a hearing within 60 days, or (c) allows an emergency hearing within 10 days if the ward’s health is in significant decline

43. HB 2665 – Access to Wards • 1151.055(d) requires that the guardian be personally served and cited to appear at least 21 days before the regular hearing or as soon as practicable for an emergency hearing • 1151.055(e) provides that the court shall issue an order after notice and a hearing that prohibit the G from preventing access to the ward if the applicant shows G’s past acts prevented access to the ward and the ward desires contact with the applicant. • Court Order can specify frequency and terms of access including supervised visitation and may award prevailing party court costs including attorney’s fees (not from ward’s estate)

44. HB 2665 – G’s Duty to Inform • New 1151.056 – Guardian’s Duty to Inform Certain Relatives about Ward’s Health & Residence • Guardian has the duty to inform relatives (who are required to be notified on initial GS application) as soon as practicable if: • Ward dies (including funeral arrangements & final resting place) • Ward is admitted to a medical facility for acute care for a period or three days or more • Ward’s residence has changed; or • Ward is staying at a location other than ward’s residence for a period exceeding one calendar week

45. HB 2665 – Access to Ward • A relative entitled to notice may elect not to receive notice by sending a written request to the guardian who is to file it with the court. Guardian may file a motion with the court for relief from the duty to notify a relative if (G is to show good cause and non-missing relative is entitled to notice and hearing): • G is unable to locate the relative • G is unable to communicate with the relative; • A protective order was issued against the relative; • A court or state agency found that the relative abused, neglected or exploited the ward; or • Notice is not in the best interest of the ward

46. HB1438 -REPTLGS Bill • Bond Pending Transfer - 1023.005 & 1023.010 - when a GS is transferred to another court, the bond payable to the judge in the original court will remain in effect until the judge in the new court has an opportunity to review and set the amount of a new or amended bond payable to new judge. • Third degree of consanguinity - 1101.001 – “next of kin” now limited to this which is defined as grandparents, grandchildren, great-grandparents, great-grandchildren, aunt who is the sister of a parent of PW, uncle who is a brother of PW, nephew who is a child of a brother or sister of a PW, or niece who is a child of a brother or sister of PW

47. HB 1438 – REPTLGS Bill • Safekeeping Agreements - 1101.156 is added for a court to sign an order before a guardian is appointed requiring safekeeping of the ward’s assets in a financial institution under 1105.155 in order to reduce the amount of bond of the guardian of the estate • Foreign Guardianships - 1253.051 is amended to state that a guardian appointed by a foreign court may file an application with a court “in the county in which the ward resides” or “in which it is intended that the ward will reside” to have the guardianship transferred to Texas and the new county.

48. HB 1438 – REPTLGS Bill • Reimbursement of Costs - 1052.051(f)(2) – GS applicant who paid filing fee may now be reimbursed from the guardianship estate or a management trust • Costs Paid from Management Trust - 1155.151(a) – court costs of GS proceedings including GAL, AAL, court visitor, MH professionals and interpreters can be paid out of a management trust if the court determines it is in the ward’s best interest. • Initial Accounting by Trustee - 1301.1535 is amended to provide that management trustees are to required to file initial accountings or “inventories” within 30 days after the trustee receives property into the trust if the trust beneficiary is a “ward under an existing guardianship” or a “proposed ward with respect to whom an application for guardianship has been filed and is pending.”

49. HB 1438 – REPTLGS Bill • Sale of Minor’s Interest - 1351.001 – is amended to add sub “(b) if a minor who is not a ward does not have a parent or managing conservator willing or able to file an application under sub (a), the court may appoint an AAL or GAL to act on the minor’s behalf for the limited purpose of applying for an order to sell the minor’s interest in property under this subchapter.” • Sale of Ward’s Interest - 1351.051 & 1351.053 are amended to allow guardian of an estate from a foreign jurisdiction to sell a ward’s interest in real property located in Texas without a guardianship in Texas if the ward’s interest is less than $100,000 and the proceeds are put in court’s registry in Texas.

50. HB 1438 – Court Initiated GS • 1102.001(b) added to provide that: • Order appointing GAL or court investigator must include statement that person believed to be IP has right to petition court to have appointment set aside • On initial meeting, GAL or CI to provide copy of information letter and appointment order to, and discuss the contents of letter and order with, the person believed to be IP • Person believed to be IP may petition the court to have GAL or CI appointment set aside between the time of the initial meeting and the filing of the application for GS