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.