HBA-LCA H.B. 2893 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2893 By: Hartnett Judicial Affairs 4/22/1999 Introduced BACKGROUND AND PURPOSE Over the past several years, concern has developed that current law does not provide adequate protection for the community interest of a spouse who has been declared incapacitated. To establish additional protective measures, H.B. 2893: _Includes the definition of "community administrator" in Chapter XIII, Probate Code (Guardianship); _Provides that the surviving spouse of a person declared incapacitated has full power over all parts of a community estate, unless that person is not qualified to manage the community estate, in which case a court may appoint a guardian; and _Authorizes a court to appoint or remove a community administrator. 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 601, Probate Code, to include the definition of "community administrator" in Chapter XIII (Guardianship). Redesignates Subdivisions (6) through (33) as Subdivisions (7) through (34). SECTION 2. Amends Section 702(b), Probate Code, to make a conforming change. SECTION 3. Amends Section 883, Probate Code, by adding Subsection (b) and amending Subsections (a) and (c), as follows: (a) Provides that the surviving partner of a marital partnership, when a husband or wife is judicially declared incapacitated, has full power over all parts of a community estate, except as provided by Subsection (b). (b) Requires the guardian of an estate of an incapacitated spouse, if the spouse who is not incapacitated would be disqualified to serve as guardian under Section 681, Probate Code (Persons Disqualified to Serve as Guardians), to administer the part of the community estate that the incapacitated spouse would have the power to manage. Requires a court to appoint a guardian to administer that part if the incapacitated spouse does not have a guardian of the estate. (c) Provides that a court may appoint a guardian of the estate to manage any separate property owned by the incapacitated spouse, whose qualification does not deprive the competent spouse of full power over the entire community estate, as provided in the chapter. Makes a conforming change. SECTION 4. Amends Subpart C, Part 5, Chapter XIII, Texas Probate Code, by adding Sections 883B and 883C, as follows: Sec. 883B. ACCOUNTING, INVENTORY, AND APPRAISEMENT BY COMMUNITY ADMINISTRATOR. (a) Requires a court, on the motion of a person interested in the community estate, to require a community administrator to file within a designated period an inventory and appraisement of an incapacitated spouse's part of a community estate being managed by a community administrator. Provides that the inventory and appraisement must be prepared in the same form and manner required of a guardian under Section 729, Probate Code (Inventory and Appraisement). (b) Provides that a person interested in a community estate may demand, at any time after 15 months after a community administrator's spouse is declared incapacitated, an accounting of the incapacitated spouse's part of a community estate. Provides that the accounting must be prepared in the same form and manner required of a guardian under Section 741, Probate Code (Annual Account Required), except for the requirement for annual filing with a county clerk. (c) Requires a community administrator to comply with a demand for an accounting under Subsection (b) within 60 days of its receipt. (d) Provides that a person interested in a community estate, after receiving an initial accounting under Subsection (b), may request from the court subsequent periodic accountings, at intervals of not less than 12 months, for good cause shown. Sec. 883C. REMOVAL OF COMMUNITY ADMINISTRATOR. (a) Authorizes a court to remove a community administrator on its own motion for failure to timely return an inventory and appraisement, initial accounting, or a subsequent accounting under Section 883B(a) of this code; upon appearance of sufficient grounds to support belief that the community administrator has misapplied or embezzled, or may misapply or embezzle, property under the care of the community administrator; if the community administrator is proven guilty of gross misconduct or gross mismanagement in the performance of duties; or if the community administrator becomes incapacitated, is sentenced to the penitentiary, or is otherwise legally incapacitated from the performance of duties. (b) Provides that an order of removal must state the cause of removal. Requires the order of removal to direct by order the disposition of the assets under the control of the removed community administrator. (c) Provides that a community administrator who defends an action for the removal of the community administrator in good faith may recover from the incapacitated spouse's part of the estate expenses and disbursements in the removal proceedings, including attorney's fees. SECTION 5. Amends Section 884, Probate Code, as follows: Sec. 884. DELIVERY TO SPOUSE. Requires a guardian of the estate of an incapacitated married person who is administering community property to deliver on demand the community property to the spouse who is not incapacitated if the spouse acquires full power to control the community estate under Section 883 of this Code. SECTION 6. Effective date: September 1, 1999. Makes application of this Act prospective. SECTION 7. Emergency clause.