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.