Guardianship Bills Passed by 2021 Texas Legislature
For the Benefit of Members of the Texas Guardianship Association www.texasguardianship.org
by Steven D. Fields, JD, on 6.29.21
Regional Guardianship Specialty Courts
HB 79 by Rep. Murr 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.
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 14th day 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 30th day 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 1301.0511 is 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 18th birthday, or on the date provided in the court order which may not be later than the person’s 25th birthday. 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 & 1355.105 are 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 72.1221 is 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.
Transfer & Mediation
SB 1129 – by Sen. Zaffirini and relates to intrastate guardianship transfers and mediation of contested guardianship matters.
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 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.
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.
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.
For updated information on COVID-19, please refer to the CDC website.
Effective 03/16/2020, the JBCC will be operating on limited in-office staff for the time being. Customers will still be able to reach us by phone at 512-475-4368. For licensing and certification matters, you can also reach our licensing specialists at the department addresses below.
Certification & Registration Departments:
- Court Reporter Certification: email@example.com
- (Professional) Guardianship Certification: firstname.lastname@example.org
- (court appointed) Guardianship Registration: email@example.com
- Licensed Court Interpreters: firstname.lastname@example.org
- Process Server Certification: email@example.com
Compliance and Records Departments:
Guardianship Certification and Visitations
Efforts to protect wards and guardians from COVID-19 and its variants can obviously interfere with a guardian’s duty to make regular visits to persons under their guardianship. If a guardian is unable to visit with a person under guardianship, the guardian should attempt to conduct a visit with them through Skype or Zoom or another app that allows visual face-time communication or over the phone. If the ward is not able to communicate, the guardian should obtain a status report from someone on the staff at the facility who has contact with the person under the guardian’s care. Guardians are not required to expose themselves, their wards, staff at assisted living facilities, or others to the virus in order to comply with visitation requirements.
Guardians should document their visits – or attempted visits – and file reports with the court regarding no-visitation measures taken at facilities where persons under the guardian’s care reside. If the guardian receives written communication from the facility, the guardian should file a copy with the guardian’s report to the court and maintain a copy for their records.
JBCC will not take disciplinary action if a guardian is unable to make visits in person due to the virus but the guardian should still make reasonable, good-faith efforts to stay informed about the health and well-being of persons under their guardianship. And the guardian should continue to keep the court informed about the condition of persons for whom the court is responsible.
Process Server Certification
Service of process is essential. For further clarification or additional information, we recommend contacting the county where service is being issued. Should any further orders or direction become available, we will update the information online. Please continue to check this page for any updates regarding the COVID-19 Pandemic and our licensees.
Certification and Licensing Examinations
For information on certification and licensing examinations, please refer to the Exam web page for your program (i.e., court reporter certification, licensed court interpreters, and guardianship certification). Updates regarding any cancellations, change in procedures, etc. will be made available on these pages.
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TGA encourages its members and all guardians as well as others involved in the guardianship process to immediately become familiar with these modifications.
For more information:
The Texas Guardianship Association has been advocating for increased State resources that would improve Texas guardianship courts’ capacity to properly adjudicate and manage guardianships and to protect the rights of Texans who need a guardian. To that end, TGA was instrumental in the passage of HB 79 that would allow creation of a statewide grid of specialty courts with specialized court staff to handle these matters. Governor Abbott signed the bill into law but at this time there is no funding to assist counties with the challenges referenced in this article.