Guardianship Bills Filed With 2021 Texas Legislature
The Texas Guardianship Association has identified 17 bills (some with companion bills) that would affect guardianship practice in Texas if passed. If you want to read an entire bill or follow its progress through the legislature, you can go to www.capitol.texas.gov and enter the bill number and print out the text of the bill (middle option prints out best). TGA members have already testified in support of or have raised concerns about at least five of these bills in either the House or the Senate. TGA encourages you to let your voice be heard either in person or by submitting written testimony to the legislature on these bills.
Here is a list of the bills followed by a short summary of each bill.
The TGA Board of Directors have prepared bill analyses that address potentially positive and negative aspects of each of six bills if passed, as well as the likely impact of the bill on persons under guardianship and the guardianship community (please click on link to read the bill analysis):
HB 79/SB 691 - Regional Guardianship Specialty Courts
SB 1129/HB 3318 - Transfer, Mediation & Termination (TGA Bill)
When possible, TGA will periodically send Bill Action Alerts to TGA members to provide information on bill movement and opportunities to testify; however, you are encouraged to monitor the bills and take whatever position or action you consider appropriate. Bills can also be amended or have substitutions, so it is important to monitor for modifications of bills as well.
The bills are heard in only two committees: The House Judiciary and Civil Jurisprudence Committee and the Senate Judiciary Committee. House bills are heard in the House Committee first and if passed by the House they are then heard by the Senate Committee. Senate bills are heard in the Senate Committee first and if passed by the Senate are then heard in the House Committee.
Here are the committee chairs and members:
Senate Judiciary Committee
Sen. Joan Huffman (R) (Houston)
Sen. Juan Hinojosa (D) (McAllen)
Sen. Brandon Creighton (R) (Conroe)
Sen. Bryan Hughes (R) (Mineola)
Sen. Nathan Johnson (D) (Dallas)
House Judiciary and Civil Jurisprudence Committee
Rep. Jeff Leach (R) Allen
Rep. Yvonne Davis (D) Dallas
Rep. Harold V. Dutton, Jr. (D) Houston
Rep. Julie Johnson (D) (Dallas)
Rep. Matt Krause (R) (Haslett/Tarrant Cty)
Rep. Mayes Middleton (R) Galveston
Rep. Joe Moody (D) El Paso
Rep. Mike Schofield (R) Katy/Harris Cty)
Rep. Reggie Smith (R) Sherman
Bill # Description
HB 79/SB 691 - Regional Guardianship Specialty Courts
HB 270 - Personal Needs Allowance Increase - REPTL Bill
SB 615 - Certification of Guardianship Attorneys
SB 626/HB 2178 - REPTL Bill
SB 692 - OCA Access to a Guardian’s Financial Records
SB 759/HB 1447 - Guardianship Hearings via Remote Technology
HB 877 - Educational Reps for Students with Disabilities
SB 1129/HB 3318 - Transfer, Mediation & Termination (TGA Bill)
HB 1156 - Increased Penalties for Elder Financial Abuse
HB 1296 - Notice to Guardians on Transfer & Removal
HB 1800 - Pilot Project to Stop Elder Financial Exploitation
HB 3126 - Advance Practice Registered Nurse Act
HB 3394 - Determination of Guardian’s Capacity
HOUSE AND SENATE BILLS INTRODUCED IN THE
2021 LEGISLATIVE SESSION
Regional Guardianship Specialty Courts (Supported by TGA)
HB 79 by Rep. Murr/ SB 691 by Sen. Zaffirini relating to associate judges for guardianship proceedings and protective services proceedings in certain courts.
Government Code Chapter 54A is added to provide that the presiding judge of each administrative judicial region, after conferring with the judges of courts in that region with guardianship jurisdiction (other than statutory probate courts) may appoint a full or part-time associate judge in that region to conduct and monitor guardianship proceedings and protective services proceedings. These associate judges must be attorneys with at least four years of guardianship or protective proceeding experience and must live in that region or a county adjacent to the region. An associate judge serves for a four year term and is entitled to a salary of 90% of a district judge’s salary to be paid from available state, federal or county funds. One of the counties in the region shall serve as the host county and provide courtroom and office space for the associate judge. The Office of Court Administration (OCA) is to assist the presiding judges of each region in monitoring and training and developing caseload standards for associate judges that handle these proceedings. Associate judges may not continue to engage in private practice of law and will have the judicial immunity of a district judge. The parties to these proceedings are entitled to a de novo hearings before the referring court unless such hearings are waived. The presiding judges of each judicial region may appoint personnel needed to assist an associate judge in handling these proceedings, and such personnel shall be paid from available state, federal and county funds.
Personal Needs Allowance Increase
HB 270 by Rep. Senfronia Thompson relating to the personal needs allowance for certain Medicaid recipients who are residents of long-term care facilities.
Human Resource Code 32.024 (w) is amended to increase the personal needs allowance from the current amount of $60 to $75 for residents of long-term care facilities who receive Medicaid assistance.
Certification for Guardianship Attorneys
SB 615 by Sen. Zaffirini relating to guardianship matters and proceedings
EC 1054.201 is amended to require that an attorney representing any party’s interest in a guardianship proceeding be certified by the State Bar of Texas as having successfully completed a copy of study in guardianship law and procedure sponsored by the state bar or its designee. However, an attorney may commence representation of a person’s interests and file an appearance in a guardianship proceeding before completing the course required for certification but must complete the course not later than the 14thday after the date of filing the appearance and before filing any substantive motion in the guardianship proceeding.
Government Code 81.114 is amended to provide that the state bar’s certification courses for attorneys representing any party in a guardianship proceeding must be low-cost and available to persons throughout the state including on the internet provided by through the state bar.
EC 1101.153 (a) is amended to require that a court order appointing a guardian that includes a waiver of the guardian’s training requirement must contain a specific finding that the waiver is in accordance with the rules adopted by the TX Supreme Court in GC 155.203.
EC 1151.005 is added to provide that the guardian of the person or of the estate of a ward may not be excluded from attending a legal proceeding in which the ward is a party or is participating as a witness.
EC 1251.005 is amended to provide that the citation issued by the clerk after the filing of an application for temporary guardianship must contain a statement regarding the right under EC 1051.252 to be notified of any or all motions, applications, or pleading relating to the application for guardianship or any subsequent guardianship involving the ward after a guardianship is created.
EC 1253.001 is amended to provide that the court, on its own motion, may transfer a guardianship to a court in a foreign jurisdiction to which the ward has permanently moved.
Government Code 25.0006, 25.00231, and 26.001 are amended to provide that the bond or insurance policy required of judges of the various courts with guardianship jurisdiction shall provide the same coverage to visiting judges assigned the court or to an associate judge appointed by the court as the bond or insurance policy provides to the judge elected or appointed to the court.
SB 626 by Sen. Zaffirini relates to guardianships, management trusts, and certain other proceedings for persons who are incapacitated.
County Court ad Law Jurisdiction Expanded. EC1021.001 is amended to provide that in counties where a county court at law is exercising original probate jurisdiction, a matter related to a guardianship proceeding will now also include the interpretation and administration of testamentary trusts and intervivos trusts in which the ward is an income or remainder beneficiary.
Guardians May Sign Oath by Unsworn Declaration. EC 1105.051 is amended to provide that permanent or temporary guardians can now sign an unsworn declaration under penalty of perjury as an alternative to an oath sworn before a notary. The declaration is to provide “my name is ____, my date of birth is ____, and my address is _____. I declare under penalty of perjury that the information in this declaration is true and correct. I will faithfully discharge the duties of _____ guardian or the person (or estate or both) of (ward’s name), an incapacitated person, according to law. Signed on _____, 202_.”
Sales of Real Property by Guardians of the Estate. EC 1158.401-.405 is amended to provide that a public sale of the ward’s real property shall be made at a public auction that is completed on the bid of the highest bidder. The auction is to be held on the first Tuesday of the month at the courthouse door in the county where the real property is located, or if ward owns real property in more than one county, then auction can be held at the courthouse door of any county in which real property is located. If the first Tuesday of the month occurs on Jan. 1 or July 4, the auction must occur between 10 am and 4pm on the first Wednesday of the month. A court may order that the auction be held in the county where the proceedings are pending and notice will be posted in the court’s county and the county where the real property is located. If the successful bidder fails to comply with the purchase, the property shall be re-advertised and auctioned without further court order.
EC 1158.451 is amended to provide that the guardian of the estate may enter into a contract for the private sale of real property of the ward’s estate in the manner the court directs in its order of sale.
EC 1158.551 is amended to provide that a successful bid or private contact for the sale of the ward’s real property shall be reported to the court not later than the 30thday after the bid is made or the property is placed under contract. The report is now to include the date that the property was put under contract and include the amount of the successful bid of the purchase price of each parcel of real property.
EC 1158.552 is amended to provide that after the expiration of five days from when the report is filed, the court shall consider the manner in which the auction described in the report was held or the contract described in the report was entered into and consider the evidence for or against the report and the court may then “approve” (“confirm” no longer used) the sale after determining if the bond is sufficient to cover the amount of proceeds the guardian will receive and may not approve the sale until the general bond is increased or an additional bond is given.
EC 1158.556 is amended to provide that if the court is satisfied that the proposed sale of real property is for a fair price and has approved any increase in bond, the court shall enter an order approving the sale, detailing the terms of the sale and authorizing the guardian of the estate to convey the property on the purchaser’s compliance with the terms of the sale. If the court is not satisfied that the proposed sale is for a fair price, the court shall enter an order setting aside the bid or contract and ordering a new sale be made, if necessary. The court’s order has the effect of a final judgment.
Management Trusts. EC 1301.0511is added to provide that upon the filing of an application for the creation of a management trust, notice shall be issued and served in the same manner required on the filing of an application for guardianship. Applicants for the creation of a management trust need not be served. If the ward is the applicant, the sheriff or other officer must also serve each guardian of the ward with citation to appear and answer the application. Service is not required if a proceeding for the appointment of a guardian is pending for the person for whom an application for creation of management trust is filed.
EC 1301.101 & 1301.203 are amended to provide that a management trust for a minor terminates on the earlier of the minor’s death, or the person’s 18thbirthday, or on the date provided in the court order which may not be later than the person’s 25thbirthday. However, if the person for whom the trust is created is a minor who is also incapacitated for a reason other than being a minor, the trust terminates on the person’s death, or when the person regains capacity, or on the date the court determines that continuing the trust is no longer in the person’s best interests, or on the person’s death.
Non-Resident Guardians. EC 1355.002 & 1355.105are amended to provide that the court may require a nonresident guardian of the estate of a creditor who is a nonresident minor or incapacitated person to provide proof that the nonresident guardian gave an adequate bond in the foreign jurisdiction if the court determines that it is in the nonresident ward’s best interests. If the nonresident guardian wishes to withdraw funds from the court registry, the non-resident guardian must present to the Texas court exemplified copies of the order of a foreign court appoint the guardian and current letter of guardianship issued in the foreign jurisdiction.
OCA Access to a Guardian’s Financial Records
SB 692 by Sen. Zaffirini relating to access to certain financial records by OCA’s guardianship abuse, fraud and exploitation deterrence program.
Government Code 72.1221is added to provide that, to the extent allowed by federal law, a financial institution or other person shall on request provide OCA with access to financial institution records, accounting records and other financial records concerning a ward’s estate for OCA’s purpose of conducting reviews and audits. OCA may request the court in which a guardianship is pending, or other person who possesses these records to provide records to OCA. After notice and hearing, a court may issue an order requiring the financial institution or other person to provide the records to OCA under the conditions that the court prescribes.
Guardianship Hearings via Remote Technology
SB 759 Sen. Melendez & HB 1447 Rep. Minjarez – relating to the used of remote technology when conducting guardianship proceedings.
EC 1053.106 is added to provide that a guardianship proceeding conducted through remote technology including teleconferences and videoconferences is considered to be conducted in “open court.” Testimony provided through remote technology and a decision rendered through remote technology in a guardianship proceeding is considered to be taken or rendered in open court. The court that conducts a guardianship proceeding through remote technology must ensure that the public has access to the proceeding, and establish, and make readily available to the parties and to the public, guidelines regarding the conduct of guardianship proceedings through remote technology.
Educational Representatives for Students with Disabilities
HB 877 by Rep. Gonzalez of El Paso relating to the appointment of an educational representative for certain students with disabilities.
Education Code 29.0171 is added to provide that a school district shall appoint an “educational representative” for a student who is 18 years of age or older who has not been determined to be “incompetent” and who has been certified by a physician, physician’s assistant or clinical psychologist as not being able to provide informed consent with respect to the student’s educational program based and the professional’s knowledge and expertise and clear and convincing evidence obtained through a personal examination or interview with the student. On receiving a written request from the student’s parent, legal guardian, spouse or other interested adult to appoint an educational representative that is accompanied by a professional’s certification dated within 91 days of the request, the school district shall appoint one of the following individuals to serve as the student’s educational representative: the student’s spouse; the student’s parent or legal guardian; or another appropriate individual who is preferred by the student and who is not employed by the district and who has significant knowledge of the student’s strengths, opportunities and post-educational transitional goals. The educational representative shall consult with the student and shall consider the student’s interest, preferences, and goals, and shall notify the student when the representative has provided informed consent or made any educational decisions on the student’s behalf. If the student disagrees with any decisions made by the educational representative, the school district shall include a statement to that effect in the student’s individualized education program. The term of the representative’s appointment expires on the earliest of the date the student is no longer eligible for special education services; the date the student graduates with a high school diploma; the date a guardian is appointed for the student; or the date the student rescinds the representative’s appointment.
Pilot Project to Establish Public Guardians(Supported by TGA)
SB 960 by Sen. Zaffirini relating to a pilot program that allows counties to establish public guardians for certain incapacitated persons.
EC 1104.326-.348 are added to provide that OCA is to develop and implement a pilot program and assist one or more counties to establish public guardians for their counties. The commissioners’ courts of the counties are to appoint an individual who is a licensed attorney or a certified guardian as public guardian to administer the office of public guardian and to hire additional staff as approved by the courts. The public guardian must not provide housing, medical, legal or other services to their wards other than money management services unless approved by the court. The public guardian is to file a general bond payable to the county in an amount set by the commissioners’ court. The public guardian is to serve incapacitated adults without financial means to pay for a private professional guardian. The public guardian may be paid from a probate fee collected in the county as a “supplemental court-initiated guardianship fee.” All individuals employed by the public guardian who provide guardianship services to a ward must be a certified guardian. HHSC may contact with these pilot programs to provide guardianship services to its wards. OCA is to adopt minimum standards for the provision of guardianship services by offices under the pilot program. Each office of public guardian established under the pilot program must file a report with OCA by 9.1.22 stating the number of wards served, the amount of money received from the State for providing guardianship services, and the amount of money receive from other sources (including county or federal government) to provide guardianship services. OCA is then to provide a report to the governor and legislature analyzing the effectiveness of these pilot programs by 12.1.22.
Transfer, Mediation & Termination (TGA Bill)(Supported by TGA)
SB 1129 by Sen. Zaffirini and relates to intrastate guardianship transfers, mediation of contested guardianship matters, and termination of guardianships of the person in favor of supports and services.
Intrastate Guardianship Transfers – EC 1023.005 is modified to allow a court to transfer an existing guardianship to another Texas county where the ward has resided for at least six months or good cause is not otherwise shown to deny the transfer. The court is to consider the interests of justice, the convenience of the parties and the preference of wards over 12 years old to determine if the transfer is in the ward’s best interests. The transfer order must certify that the guardianship is in compliance with the Estates Code at the time of the transfer. On receipt of the transfer order, the new county where the ward resides must accept the transfer.
EC1023.008 is amended to state that the county that receives the guardianship becomes the court of continuing exclusive jurisdiction and that judgments and orders signed in the former court are enforceable by the new county court and that the former court retains no jurisdiction over the case.
EC 1023.044 is added to clarify that the former court is only liable for any injury, loss or damage that occurred before the transfer and that the new court is only liable for any injury, loss or damage that occurs after the transfer.
Mediation of Contested Guardianships – EC 1055.151 is amended to provide that if the court refers a contested guardianship to mediation, the applicant must still prove to the court that the ward is an incapacitated person. All parties to the mediation must evaluate alternatives to guardianship and supports and services that would be feasible to avoid the need for guardianship. The cost of mediation is to be paid by the parties to the proceeding unless otherwise ordered by the court. If the parties are unable to pay the costs of mediation, the court may refer the parties to a local alternative dispute resolution center that may waive mediation costs if appropriate.
EC 1202.001 is amended to provide that an existing guardianship of the person can be referred to mediation and that it can be settled and closed when the court finds that the ward’s incapacity needs can be managed without the necessity of continued guardianship by an alternative to guardianship or support and services.
EC 155.301 is added to provide that OCA shall establish a guardianship mediation course with at least 24 hours of training for persons facilitating these mediations and that such training may be provided by a mediation training provider approved by OCA.
Termination of GS of the Person where Incapacity Needs Can be Managed Otherwise. EC 1202.231-.235 are added to provide that the court may order that a guardianship of the person of a ward may terminate and be closed if the ward court makes certain findings. The applicant for termination must present to the court a doctor’s certificate dated within 120 days before the application is filed or between the filing of the application and the date of hearing. The doctor’s certificate should describe feasible alternatives to guardianship or supports and services available to the ward that would avoid the need for continued appointment of a guardian of the person and state whether, in the doctor’s opinion, those alternatives or supports and services would meet the ward’s need for food, clothing, shelter and finances without the continued necessity of a guardian. The court may require notice to interested parties and may appoint a court investigator or may appoint an attorney ad litem or guardian ad litem, or both, for the ward.
Before terminating the guardianship, the court must find by a preponderance of the evidence that the ward remains partially or completely incapacitated but that the ward’s incapacity needs can be managed without the continued necessity of a guardianship of the person by feasible alternatives to guardianship or feasible supports and services that are available to the ward and that termination of the guardianship of the person is in the wards best interests and will encourage the development or maintenance of maximum self-reliance and independence in the ward.
A court order that terminates a guardianship for these reasons must recite the findings stated above and must specify the supports and services or alternatives to guardianship that will meet the ward’s incapacity needs without the continuation of the guardianship of the person and must identify the person or entities who will be providing the alternatives or supports and services to the ward. The order must also state that the guardian is to immediately settle the guardianship and deliver all the ward’s remaining personal effects and assets, if any, to the persons or entities identified in the order and that the clerk shall revoke all letters of guardianship when the guardianship is finally settled and closed.
Increased Penalties for Elder Financial Abuse
HB 1156 by Rep. Thierry relates to creating the criminal offense of financial abuse of an elderly individual.
Penal Code 32.55 is added to provide that financial abuse of an elderly individual (65 or older) includes “financial exploitation” including the breach of a fiduciary relationship involving the misuse of a durable power of attorney or the abuse of guardianship powers that results in the unauthorized appropriation, sale or transfer of another person’s property. It may also include the unauthorized taking of personal assets, the unauthorized transfer of another person’s money from a personal or joint account, and the intentional failure to effectively use another person’s income and assets for the necessities required for the person’s support and maintenance.
A person commits an offense if the persons knowingly engages in financial abuse of an elderly individual, and an offense under this section is a state jail felony if the value of the property taken is less than $500, or a felony of the third degree if the value of the assets taken is between $500 and $10,000, or a felony in the second degree if the value of the property taken is between $10,000 and $100,000, or a felony of the first degree if the property taken exceeds $100,000.
Notice to Guardians on Transfer and Removal
HB 1296 authored by Rep. Metcalf relates to the provision of certain notices in guardianship proceedings.
EC 1023.004 is amended to provide that if a court makes a motion to transfer a guardianship to another county, the guardian shall be given notice by certified mail to appear and show cause why the guardianship should not be transferred.
EC 1203.052 (b) is amended to provide that the court may, on the complaint of the JBCC guardianship certification program, remove a guardian who would be ineligible for appointment due to failure to maintain professional guardianship certification, and the guardian shall be given notice by certified mail, return receipt requested, to appear and contest the request for removal at a time and place set in the notice.
Independent Guardianship for Parents
HB 1675 by Rep. Steve Allison relates to a guardianship proceeding brought a parent of a minor with profound intellectual disability who will require a guardian upon becoming an adult.
EC 1103A.001 is added to provide that a parent of a minor, who has a profound intellectual disability as stated in a letter from a physician or an HHSC licensed psychologist and who will require a guardianship upon becoming an adult, may present an affidavit to the court that the parent is the primary caregiver of the minor and has never been the subject of an allegation of abuse, neglect or exploitation of the minor and is not disqualified to serve as guardian. The parent may then make a request that that court find that the minor is an incapacitated person without the necessity of a hearing or the appointment of an attorney ad litem or an investigation by a court investigator and that the parent be appointed as independent guardian to serve without bond. If the court is able to find that the minor is an incapacitated person based on the doctor’s certificate, it shall appoint the parent as independent guardian without conducting a hearing or appointing an ad litem or court investigator unless the parent is disqualified or the court believes the affidavit is inaccurate or that the appointment is not in the minor’s best interests.
EC 1103A.002 is added to provide that the court shall seal the doctor’s certificate or any other medical record or document examined by the court for purposes of making this determination unless the court finds good cause not to seal these documents.
EC 1103A.003 is added to provide that a parent of an adult ward with profound intellectual disabilities under an existing guardianship created prior to 9.1.21 may apply to have their guardianship treated on a prospective basis as an “independent guardianship.”
EC 1106.002 is amended to provide that letters of guardianship for “independent guardians” do not expire unless the guardian is removed or would otherwise be ineligible to serve as guardian.
EC 1163.0025 is added that independent guardians are not required to file annual accounts required of guardians of the estate unless the court finds this would not be in the best interests of the ward.
EC 1163.101 is amended to provide that independent guardians are not required to file annual reports required of guardians of the person unless the court finds this would not be in the best interests of the ward.
EC 1201.052 is amended to provide that independent guardianships are not subject to the court’s annual determination and can only be reviewed for continuation, modification and termination not more frequently than once every five years.
Pilot Project to Stop Elder Financial Exploitation
HB 1800 by Rep. Lopez relating to a pilot program to establish a community collaborative to address financial exploitation of elderly persons in Texas.
No later than December 1, 2021, the Department of Family and Protective Services is to develop and implement a pilot program under which entities with an interest in preventing financial exploitation of elderly persons may collaborate to help prevent such exploitation and otherwise improve the financial security of elderly persons. Each community collaborative should include a social service agency capable of providing services to the community to prevent financial exploitation including financial counseling, benefits assistance, insurance counseling, presentations on scams, fraud and identity theft targeted at elderly persons, and money management and employment services. Each community collaborative should also include at least one local court with jurisdiction over guardianship proceedings and the office of a prosecuting attorney that has an independent unit committed to investigating and prosecuting financial exploitation.
In developing the pilot program, DFPS shall consult with the Elder Financial Safety Center and establish a collaborative in at least five different geographical areas of the state that are representative of diverse communities with different resources and services to evaluate how the collaborative model can be adapted to different communities. DFPS is to file a report no later than December 1, 2022, that tells the location of each collaborative and the entities involved and recommends whether each collaborative should be continued or terminated.
Temporary Guardians to Receive Social Security Benefits
HB 2439 by Rep. White relating to the appointment of a temporary guardian to receive certain social security benefits.
EC chapter 1251A is added to provide that the court shall appoint a temporary guardian with limited power to receive social security benefits including SSI and SSDI if the court is presented with substantial evidence that a person may be an incapacitated person and have probable cause to believe that the immediate appointment of a guardian is required. The person for whom a temporary guardian is appointed may not be presumed to be incapacitated and retains all other rights. The following persons are eligible for this appointment: the person’s spouse; the person’s reasonably available adult children; the person’s parents; or the person’s nearest living relative. A sworn written application must be filed with facts supporting the allegations and it must be served on the proposed ward and must contain a date and time and consequences of a hearing on the application. The court must set a hearing not later than 48 hours after the time the application is filed, and shall issue an order setting the date of the hearing. The proposed ward may consent to postpone the hearing on the application for a period not to exceed seven days after the date the application is filed. The proposed ward may also appear and move for dismissal of the application with one day’s notice to the applicant, and such motion shall be heard by the court as expeditiously as possible. At the hearing, the proposed ward has the right to receive prior notice, be present, be represented by counsel, present evidence, confront and cross-examine witnesses, and request a closed hearing. The court is to issue an order on the application not later than 24 hours after the hearing concludes. The order is limited to collecting social security benefits and the temporary guardian is not required to give a bond but must give an oath and lasts for 30 days and may be extended by the court for not longer than 30 days. At the expiration of the temporary guardianship, the temporary guardian must account for all property coming into his possession and must account for all acts taken with regard to the assets. At the expiration of the temporary guardianship, the temporary guardian shall deliver all assets remaining to the person legally entitled to possession of the estate.
The Michael Hickson Act – End of Life Decisions
HB 3063 by Rep. Smithee relates to the duties of a private professional guardian (“PPG”) regarding end of life and critical care decisions concerning an adult ward.
New EC 1151.0057 would be added to impose new duties on a PPG who discovers that a critical care or end of life decision is necessary for one of the PPG’s adult wards.
Immediately after discovering that a critical care decision (not defined) or end of life decision is necessary for one of the PPG’s adult wards, the PPG who was appointed as guardian of the person of the adult ward must contact the ward’s closest living next of kin (from priority listing) to obtain such relative’s informed consent agreement prior to making these decisions.
The PPG must attempt to contact the closest living next of kin at least three times each day for a period of at least 48 hours by telephone and email messages left at different times during the day and including the reason for the call or message and call back and return email contact information.
If the PPG contacts ward’s closest living next of kin within 48 hours, the health care professional shall continue to provide reasonable and prudent care to the ward until the PPG and relative agree on how to proceed with the ward’s care.
If the PPG and the closest living relative cannot agree on a care decision, the PPG shall contact a disability advocacy organization (“Disability Rights”) to assist in mediating the dispute until an agreement is reached. Upon reaching an agreement, the relative shall provide informed consent for the agreed upon care in writing. The PPG shall provide a copy of the informed consent to the health care provider and to the court.
If the PPG is unable to contact the closest living next of kin after 48 hours, the PPG is to submit documentation of contact attempts to the court and consult with Disability Rights regarding what care decision is in the ward’s best interest.
If the PPG, Disability Rights and the health care professional unanimously agree on the decision to be made, the PPG may consent to the agreed upon treatment.
At least once a year, the PPG shall obtain and verify contact information for each ward’s next of kin.
Advanced Practice Registered Nurse Act
HB 3126 by Rep. VanDeaver – relating to health care providers authorized to examine a person to determine whether the person is incapacitated for purposes of guardianship proceedings.
EC 1101.103 is amended to include an “advanced practice registered nurse” as an alternative to a physician to complete a written letter or certificate dated not earlier than 120 days before the filing of a guardianship application and based upon an examination by the physician or advanced practice registered nurse performed not earlier than 120 days before the date the guardianship application is filed.
EC 1101.104 is amended to include an “advanced practice registered nurse” in addition to a physician or psychologist certified by HHSC to complete a written letter or certificate that states that an intellectual disability is the basis for a proposed ward’s incapacity based upon an examination occurring not earlier than 24 months before the guardianship hearing date.
EC 1102.002 is amended to add that an “advanced practice registered nurse” as an alternative to a physician may examine a person alleged to be incapacitated and may provide a letter or certificate to the court to give the court probable cause to appoint a guardian ad litem or court investigator to investigate the need for a guardianship for the alleged incapacitated person. The letter must be dated not earlier than 120 prior to the appointment of the guardian ad litem or court investigator.
EC 1202.152 is amended to add that an “advanced practice registered nurse” as an alternative to a physician may examine a ward under guardianship and submit a letter or certificate not earlier than 120 days before the application is filed as to whether the ward should be restored to capacity or whether a ward’s guardianship should be modified.
Determination of Guardian’s Capacity
HB 3394 by Rep. Metcalf relating to determining the incapacity of a guardian or proposed guardian.
EC 1203.0521 is added to provide that the court, on its own motion, or on the sworn application of any interested person shall order an investigation into whether a guardian or proposed guardian is an incapacitated person. The court shall appoint a guardian ad litem or court investigator to determine whether there is probable cause to believe the guardian or proposed guardian is incapacitated. A guardian ad litem or court investigator that finds probable cause for incapacity shall file an application for independent medical exam by a Texas physician. The court is to then hold a hearing with at least four day’s written notice to the guardian or proposed guardian.
If the court grants an independent medical exam, the court may appoint one or more Texas physicians to examine the guardian or proposed guardian. The physicians shall submit a certificate of medical exam that complies with existing law, and it can be used by the court for making a determination of incapacity. If the court determines that the guardian or proposed guardian is not incapacitated, the court may order costs association with making a capacity determination to be paid by the applicant who requested the investigation. If the guardian or proposed guardian is determined to be an incapacitated person, the cost associated with making a capacity determination can be assessed against the guardian or proposed guardian. If the applicant, guardian or proposed guardian files on his own behalf an affidavit of inability to pay court costs, the court shall order costs to be paid out of the county treasury.