HBA-KMH C.S.H.B. 2165 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 2165 By: Naishtat Judicial Affairs 4/29/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE Under current law, a court may only authorize compensation for a guardian of the person from the ward's estate. If the ward has no estate, the court cannot compensate guardians of the person and has to find volunteers to serve when the ward has no suitable family members. Courts need to appoint guardians in indigent guardianship cases, but have been resistant to paying guardians because of this law. County commissioners courts also have been willing to allow courts to pay guardians of the person out of the court's budget, but have been reluctant to do so because of the law. Similarly, attorneys who represent applicants to be appointed as guardians for indigent incapacitated persons have no way to be paid for their services. Current law provides that an applicant's attorney is paid out of the ward's estate. If the ward has no estate, the attorney must depend on the applicant to pay the attorney's fees for filing the guardianship application. Lack of funds prevents many family members or friends from pursuing guardianship of their incapacitated relatives or friends. Some courts wish to pay attorneys to file these applications to protect incapacitated persons in their counties. C.S.H.B. 2165 authorizes a county to pay for certain attorney and guardian ad litem fees if appropriate out of the county treasury. This bill authorizes certain evidence to be required to establish probable cause regarding the appointment a guardian, including a letter of information and a letter or certificate from a physician about the proposed ward. Furthermore, this bill provides the required content of the letter described by this Act. Additionally, this bill authorizes a guardian of the person filing to provide the report required by this Act without the assistance of an attorney. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 665, Probate Code, to authorize the court to authorize compensation for the services of a private professional guardian or a licensed attorney serving as guardian of the ward's person from the county treasury, if funds in the county treasury are budgeted for that purpose. SECTION 2. Amends Section 665B(a), Probate Code, to make conforming and nonsubstantive changes. SECTION 3. Amends Section 683, Probate Code, to authorize a court to require an information letter from an interested person about the proposed ward that satisfies Section 683A and a written letter or certificate from a physician who has examined the proposed ward that satisfies Section 687(a) (Examinations and Reports) except that the letter must be timely. Authorizes a court that creates a guardianship of the ward under this chapter (Guardianships) to authorize compensation of the guardian ad litem who files an application under this section from available funds of the ward's estate. Authorizes the court to authorize the compensation to be paid from the county treasury on a finding that the ward's assets are insufficient to pay for the services provided. SECTION 4. Amends Subpart A, Part 3, Chapter XIII, Probate Code, by adding Section 683A, as follows: Sec. 683A. INFORMATION LETTER. Sets forth the authorized contents of the information letter required by Section 683 of this code. SECTION 5. Amends Section 743, Probate Code, by adding Subsection (j), as follows: (j) Authorizes a guardian of the person to complete and file the report required under this section without the assistance of an attorney. SECTION 6. Makes application of this Act prospective as to Sections 665 and 665B(a), as amended by this Act. SECTION 7. Makes application of this Act prospective as to Section 743(j), as amended by this Act. SECTION 8. Effective date: September 1, 1999. SECTION 9. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 2165 modifies the original in SECTION 1(proposed Section 665(d), Probate Code) to provide that this provision for compensation applies to a private professional guardian or a licensed attorney serving as a guardian of the ward's person, rather than a person serving as a guardian or temporary guardian of the ward's person, and only if funds in the county treasury are budgeted for that purpose, rather than on approval of the commissioners court. C.S.H.B. 2165 modifies the original in SECTION 2 (proposed Section 665B(a)(2)(B), Probate Code) to make a conforming change. C.S.H.B. 2165 modifies the original in SECTION 3 (Section 683, Probate Code) to authorize a court to require a letter from an interested person or physician's letter or certificate to establish probable cause relating to the application for guardianship under this section, rather than requiring the court to make a determination of probable cause based on such letters prior to appointing a guardian ad litem. The substitute also provides certain standards of timeliness for the letter authorized to be required by this section. Additionally, the substitute provides that the provisions of this section apply to a ward, rather than a proposed ward. C.S.H.B. 2165 modifies the original in SECTION 4 (proposed Section 683A, Probate Code) to provide an authorized, rather than required, format for the information letter from an interested person under Section 683(b)(1). The substitute also removes proposed Section 683B, which prescribed a format for the authorized physician's letter and certificate. C.S.H.B. 2165 modifies the original by deleting SECTION 5 (amending Section 702(a), Probate Code, to make a conforming change) and redesignating SECTIONS 6 and 7 of the original as SECTIONS 5 and 6. C.S.H.B. 2165 modifies the original in SECTION 5 (proposed Section 743(j), Probate Code) to authorize a guardian of the person to complete and file the report required without the assistance of an attorney regardless of the guardian's financial ability to obtain legal representation. C.S.H.B. 2165 modifies the original by deleting SECTION 8 (referring to Section 702(a) as amended by the original) and redesignating SECTIONS 9-11 as SECTIONS 7-9.