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2011 Texas Statutes
ESTATES CODE
TITLE 3 - GUARDIANSHIP AND RELATED PROCEDURES
SUBTITLE D - CREATION OF GUARDIANSHIP
CHAPTER 1101 - GENERAL PROCEDURE TO APPOINT GUARDIAN

ESTATES CODE


TITLE 3. GUARDIANSHIP AND RELATED PROCEDURES


SUBTITLE D. CREATION OF GUARDIANSHIP


CHAPTER 1101. GENERAL PROCEDURE TO APPOINT GUARDIAN


SUBCHAPTER A. INITIATION OF PROCEEDING FOR APPOINTMENT OF GUARDIAN



Text of section effective on January 01, 2014


Sec. 1101.001.  APPLICATION FOR APPOINTMENT OF GUARDIAN;  CONTENTS. (a)  Any person may commence a proceeding for the appointment of a guardian by filing a written application in a court having jurisdiction and venue.  

(b)  The application must be sworn to by the applicant and state:

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

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

(3)  whether guardianship of the person or estate, or both, is sought;

(4)  the nature and degree of the alleged incapacity, the specific areas of protection and assistance requested, and the limitation or termination of rights requested to be included in the court's order of appointment, including a termination of:

(A)  the right of a proposed ward who is 18 years of age or older to vote in a public election; and

(B)  the proposed ward's eligibility to hold or obtain a license to operate a motor vehicle under Chapter 521, Transportation Code;

(5)  the facts requiring the appointment of a guardian;

(6)  the interest of the applicant in the appointment of a guardian;

(7)  the nature and description of any kind of guardianship existing for the proposed ward in any other state;

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

(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;

(10)  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)  for a proposed ward who is a minor, the following information if known by the applicant:

(A)  the name of each of the proposed ward's parents and either the parent's address or that the parent is deceased;

(B)  the name and age of each of the proposed ward's siblings, if any, and either the sibling's address or that the sibling is deceased; and

(C)  if each of the proposed ward's parents and siblings are deceased, the names and addresses of the proposed ward's next of kin who are adults;

(12)  for a proposed ward who is a minor, whether the minor was the subject of a legal or conservatorship proceeding in the preceding two years and, if so:

(A)  the court involved;

(B)  the nature of the proceeding; and

(C)  any final disposition of the proceeding;

(13)  for a proposed ward who is an adult, the following information if known by the applicant:

(A)  the name of the proposed ward's spouse, if any, and either the spouse's address or that the spouse is deceased;

(B)  the name of each of the proposed ward's parents and either the parent's address or that the parent is deceased;

(C)  the name and age of each of the proposed ward's siblings, if any, and either the sibling's address or that the sibling is deceased;

(D)  the name and age of each of the proposed ward's children, if any, and either the child's address or that the child is deceased; and

(E)  if there is no living spouse, parent, adult sibling, or adult child of the proposed ward, the names and addresses of the proposed ward's next of kin who are adults;

(14)  facts showing that the court has venue of the proceeding; and

(15)  if applicable, that the person whom the applicant seeks to have appointed as a guardian is a private professional guardian who is certified under Subchapter C, Chapter 111, Government Code, and has complied with the requirements of Subchapter G, Chapter 1104.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 1.02, eff. January 1, 2014.

SUBCHAPTER B. HEARING; JURY TRIAL



Text of section effective on January 01, 2014


Sec. 1101.051.  HEARING. (a)  At a hearing for the appointment of a guardian, the court shall:

(1)  inquire into the ability of any allegedly incapacitated adult to:

(A)  feed, clothe, and shelter himself or herself;

(B)  care for his or her own physical health; and

(C)  manage his or her property or financial affairs;

(2)  ascertain the age of any proposed ward who is a minor;

(3)  inquire into the governmental reports for any person who must have a guardian appointed to receive funds due the person from any governmental source; and

(4)  inquire into the qualifications, abilities, and capabilities of the person seeking to be appointed guardian.

(b)  A proposed ward must be present at the hearing unless the court, on the record or in the order, determines that a personal appearance is not necessary.

(c)  The court may close the hearing at the request of the proposed ward or the proposed ward's counsel.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 1.02, eff. January 1, 2014.


Text of section effective on January 01, 2014


Sec. 1101.052.  JURY TRIAL.  A proposed ward is entitled to a jury trial on request.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 1.02, eff. January 1, 2014.


Text of section effective on January 01, 2014


Sec. 1101.053.  PROVISION OF RECORDS REQUIRED; USE OF RECORDS. (a) Before a hearing may be held for the appointment of a guardian, current and relevant medical, psychological, and intellectual testing records of the proposed ward must be provided to the attorney ad litem appointed to represent the proposed ward unless:

(1)  the proposed ward is a minor or a person who must have a guardian appointed to receive funds due the person from any governmental source; or

(2)  the court makes a finding on the record that:

(A)  current or relevant records do not exist; and

(B)  examining the proposed ward for the purpose of creating the records is impractical.

(b)  Current medical, psychological, and intellectual testing records are a sufficient basis for a determination of guardianship.

(c)  The findings and recommendations contained in the medical, psychological, and intellectual testing records are not binding on the court.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 1.02, eff. January 1, 2014.

SUBCHAPTER C. DETERMINATION OF NECESSITY OF GUARDIANSHIP; FINDINGS AND PROOF



Text of section effective on January 01, 2014


Sec. 1101.101.  FINDINGS AND PROOF REQUIRED. (a)  Before appointing a guardian for a proposed ward, the court must:

(1)  find by clear and convincing evidence that:

(A)  the proposed ward is an incapacitated person;

(B)  it is in the proposed ward's best interest to have the court appoint a person as the proposed ward's guardian; and

(C)  the proposed ward's rights or property will be protected by the appointment of a guardian; and

(2)  find by a preponderance of the evidence that:

(A)  the court has venue of the case;

(B)  the person to be appointed guardian is eligible to act as guardian and is entitled to appointment, or, if no eligible person entitled to appointment applies, the person appointed is a proper person to act as guardian;

(C)  if a guardian is appointed for a minor, the guardianship is not created for the primary purpose of enabling the minor to establish residency for enrollment in a school or school district for which the minor is not otherwise eligible for enrollment; and

(D)  the proposed ward:

(i)  is totally without capacity as provided by this title to care for himself or herself and to manage his or her property; or

(ii)  lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself or to manage his or her property.

(b)  The court may not grant an application to create a guardianship unless the applicant proves each element required by this title.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 1.02, eff. January 1, 2014.


Text of section effective on January 01, 2014


Sec. 1101.102.  DETERMINATION OF INCAPACITY OF CERTAIN ADULTS: RECURRING ACTS OR OCCURRENCES.  A determination of incapacity of an adult proposed ward, other than a person who must have a guardian appointed to receive funds due the person from any governmental source, must be evidenced by recurring acts or occurrences in the preceding six months and not by isolated instances of negligence or bad judgment.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 1.02, eff. January 1, 2014.


Text of section effective on January 01, 2014


Sec. 1101.103.  DETERMINATION OF INCAPACITY OF CERTAIN ADULTS: PHYSICIAN EXAMINATION. (a)  Except as provided by Section 1101.104, the court may not grant an application to create a guardianship for an incapacitated person, other than a minor or person for whom it is necessary to have a guardian appointed only to receive funds from a governmental source, unless the applicant presents to the court a written letter or certificate from a physician licensed in this state that is:

(1)  dated not earlier than the 120th day before the date the application is filed; and

(2)  based on an examination the physician performed not earlier than the 120th day before the date the application is filed.

(b)  The letter or certificate must:

(1)  describe the nature, degree, and severity of the proposed ward's incapacity, including any functional deficits regarding the proposed ward's ability to:

(A)  handle business and managerial matters;

(B)  manage financial matters;

(C)  operate a motor vehicle;

(D)  make personal decisions regarding residence, voting, and marriage; and

(E)  consent to medical, dental, psychological, or psychiatric treatment;

(2)  in providing a description under Subdivision (1) regarding the proposed ward's ability to operate a motor vehicle and make personal decisions regarding voting, state whether in the physician's opinion the proposed ward:

(A)  has the mental capacity to vote in a public election; and

(B)  has the ability to safely operate a motor vehicle;

(3)  provide an evaluation of the proposed ward's physical condition and mental function and summarize the proposed ward's medical history if reasonably available;

(4)  state how or in what manner the proposed ward's ability to make or communicate responsible decisions concerning himself or herself is affected by the proposed ward's physical or mental health, including the proposed ward's ability to:

(A)  understand or communicate;

(B)  recognize familiar objects and individuals;

(C)  perform simple calculations;

(D)  reason logically; and

(E)  administer to daily life activities;

(5)  state whether any current medication affects the proposed ward's demeanor or the proposed ward's ability to participate fully in a court proceeding;

(6)  describe the precise physical and mental conditions underlying a diagnosis of a mental disability, and state whether the proposed ward would benefit from supports and services that would allow the individual to live in the least restrictive setting; and

(7)  include any other information required by the court.

(c)  If the court determines it is necessary, the court may appoint the necessary physicians to examine the proposed ward.  The court must make its determination with respect to the necessity for a physician's examination of the proposed ward at a hearing held for that purpose.  Not later than the fourth day before the date of the hearing, the applicant shall give to the proposed ward and the proposed ward's attorney ad litem written notice specifying the purpose and the date and time of the hearing.

(d)  A physician who examines the proposed ward, other than a physician or psychologist who examines the proposed ward under Section 1101.104(2), shall make available for inspection by the attorney ad litem appointed to represent the proposed ward a written letter or certificate from the physician that complies with the requirements of Subsections (a) and (b).

Added by Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 1.02, eff. January 1, 2014.


Text of section effective on January 01, 2014


Sec. 1101.104.  EXAMINATIONS AND DOCUMENTATION REGARDING MENTAL RETARDATION.  If mental retardation is the basis of the proposed ward's alleged incapacity, the court may not grant an application to create a guardianship for the proposed ward unless the applicant presents to the court:

(1)  a written letter or certificate that:

(A)  complies with Sections 1101.103(a) and (b); and

(B)  states that the physician has made a determination of mental retardation in accordance with Section 593.005, Health and Safety Code; or

(2)  both:

(A)  written documentation showing that, not earlier than 24 months before the hearing date, the proposed ward has been examined by a physician or psychologist licensed in this state or certified by the Department of Aging and Disability Services to perform the examination, in accordance with rules of the executive commissioner of the Health and Human Services Commission governing examinations of that kind; and

(B)  the physician's or psychologist's written findings and recommendations, including a statement as to whether the physician or psychologist has made a determination of mental retardation in accordance with Section 593.005, Health and Safety Code.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 1.02, eff. January 1, 2014.


Text of section effective on January 01, 2014


Sec. 1101.105.  PROHIBITION AGAINST CONSIDERATION OF AGE AS SOLE FACTOR IN APPOINTMENT OF GUARDIAN FOR ADULTS.  In determining whether to appoint a guardian for an incapacitated person who is not a minor, the court may not use age as the sole factor.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 1.02, eff. January 1, 2014.


Text of section effective on January 01, 2014


Sec. 1101.106.  EVIDENCE OF NECESSITY OF GUARDIANSHIP TO RECEIVE GOVERNMENTAL FUNDS.  A certificate of the executive head or a representative of a bureau, department, or agency of the government, to the effect that the appointment of a guardian is a condition precedent to the payment of any funds due the proposed ward from that governmental entity, is prima facie evidence of the necessity for the appointment of a guardian.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 1.02, eff. January 1, 2014.

SUBCHAPTER D. COURT ACTION



Text of section effective on January 01, 2014


Sec. 1101.151.  ORDER APPOINTING GUARDIAN WITH FULL AUTHORITY. (a)  If it is found that the proposed ward is totally without capacity to care for himself or herself, manage his or her property, operate a motor vehicle, and vote in a  public election, the court may appoint a guardian of the proposed ward's person or estate, or both, with full authority over the incapacitated person except as provided by law.

(b)  An order appointing a guardian under this section must contain findings of fact and specify:

(1)  the information required by Section 1101.153(a);

(2)  that the guardian has full authority over the incapacitated person;

(3)  if necessary, the amount of funds from the corpus of the person's estate the court will allow the guardian to spend for the education and maintenance of the person under Subchapter A, Chapter 1156;

(4)  whether the person is totally incapacitated because of a mental condition; and

(5)  that the person does not have the capacity to operate a motor vehicle and to vote in a public election.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 1.02, eff. January 1, 2014.


Text of section effective on January 01, 2014


Sec. 1101.152.  ORDER APPOINTING GUARDIAN WITH LIMITED AUTHORITY. (a)  If it is found that the proposed ward lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself or to manage his or her property, the court may appoint a guardian with limited powers and permit the proposed ward to care for himself or herself or to manage his or her property commensurate with the proposed ward's ability.

(b)  An order appointing a guardian under this section must contain findings of fact and specify:

(1)  the information required by Section 1101.153(a);

(2)  the specific powers, limitations, or duties of the guardian with respect to the person's care or the management of the person's property by the guardian;

(3)  if necessary, the amount of funds from the corpus of the person's estate the court will allow the guardian to spend for the education and maintenance of the person under Subchapter A, Chapter 1156; and

(4)  whether the person is incapacitated because of a mental condition and, if so, whether the person retains the right to vote in a public election or maintains eligibility to hold or obtain a license to operate a motor vehicle under Chapter 521, Transportation Code.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 1.02, eff. January 1, 2014.


Text of section effective on January 01, 2014


Sec. 1101.153.  GENERAL CONTENTS OF ORDER APPOINTING GUARDIAN. (a)  A court order appointing a guardian must specify:

(1)  the name of the person appointed;

(2)  the name of the ward;

(3)  whether the guardian is of the person or estate of the ward, or both;

(4)  the amount of any bond required;

(5)  if it is a guardianship of the estate of the ward and the court considers an appraisal to be necessary, one, two, or three disinterested persons to appraise the estate and to return the appraisement to the court; and

(6)  that the clerk will issue letters of guardianship to the person appointed when the person has qualified according to law.

(b)  An order appointing a guardian may not duplicate or conflict with the powers and duties of any other guardian.

(c)  An order appointing a guardian or a successor guardian may specify as authorized by Section 1202.001(c) a period during which a petition for adjudication that the ward no longer requires the guardianship may not be filed without special leave.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 1.02, eff. January 1, 2014.


Text of section effective on January 01, 2014


Sec. 1101.154.  APPOINTMENT OF GUARDIAN OF ESTATE FOR CERTAIN MINORS PROHIBITED.  A court may not appoint a guardian of the estate of a minor when a payment of claims is made under Chapter 1355.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 1.02, eff. January 1, 2014.


Text of section effective on January 01, 2014


Sec. 1101.155.  DISMISSAL OF APPLICATION.   If it is found that a proposed ward who is an adult possesses the capacity to care for himself or herself and manage his or her property as would a reasonably prudent person, the court shall dismiss an application for guardianship.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 1.02, eff. January 1, 2014.

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