Office of House Bill AnalysisH.B. 3144
By: Hartnett
Judicial Affairs


Notice of application of guardianship, physical examination by a physician
of a ward, and closing or terminating of a guardianship, paying creditors,
or selling certain assets of the estate are some issues that arise with
regard to guardianships for incapacitated persons, wards, or former wards.
Modifying existing laws to resolve such issues may be beneficial to a
guardian, incapacitated person, ward, or former ward. Under current law, a
probate court is prohibited from acting on an application for guardianship
until all adult siblings and all adult children of the proposed ward are
served with notice.  This may take any number of months, but the validity
of the guardianship may be affected if all such persons are not served with
notice. A court is authorized to appoint a physician to examine the
proposed ward if the court determines that this is necessary, but the court
is not required to have a hearing for this purpose.  Current law does not
place a time constraint on a claim made on a ward's estate by an unsecured
creditor, though similar provisions exist regarding a decedent's estate.
Also, there are caps on the amount of money of an estate under which the
guardianship of the estate may be terminated, creditors paid, or an
interest of the estate may be sold. House Bill 3144 modifies provisions
relating to guardianship of incapacitated persons, wards, or former wards
to address these issues.        


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. 


House Bill 3144 amends the Texas Probate Code to modify provisions relating
to guardianship for  a ward, former ward, or incapacitated person.  The
bill provides that the validity of a guardianship is not affected by the
failure to notify all adult siblings (Sec. 633).  The bill provides that a
court must make a determination as to whether it is necessary to appoint
physicians to examine the proposed ward at a hearing and requires an
applicant, not later than the 4th day before the date of the hearing, to
give to the proposed ward and the proposed ward's attorney ad litem written
notice specifying the purpose, date, and time of the hearing (Sec. 687).   

H.B. 3144 increases, from $25,000 to $100,000, the maximum amount that a
minor's estate may consist of in cash or cash equivalents for the
guardianship of the estate to be terminated and the assets paid to the
county clerk for management (Sec. 745).  The bill authorizes the guardian
of an estate to expressly state in a notice to an unsecured creditor that
the unsecured creditor must present a claim not later than the 120th day
after the date on which the unsecured creditor receives notice or the claim
is barred, if the claim is not barred by the general statutes of
limitation.  The bill provides that such notice must include the address to
which claims may be presented and an instruction that the claim be filed
with the clerk of the court issuing the letters of guardianship.  The bill
provides  that a claim of an unsecured creditor for money that is not
presented within the time prescribed by these provisions is barred.  (Secs.
784 and 786).   

H.B. 3144 requires a court which finds that the creation of a management
trust is in the best interest of a ward to appoint a financial institution
to serve as trustee of the trust and order the guardian or another  person
to deliver all or part of the assets of the guardianship to the corporate
fiduciary appointed by the court as trustee of the trust (Sec. 867).   

H.B. 3144 increases, from $50,000 to $100,000, the maximum amount of
liquidated and uncontested funds for which a resident or nonresident person
is without guardianship, who is a creditor and who is entitled to such
money is authorized to have the money paid to the county clerk of the
county in which the creditor resides.  The bill also increases, from
$50,000 to $100,000, the maximum amount of an interest of an estate of a
minor or ward for which an application for an order to sell such interest
may be made (Secs. 887, 889, and 890).       


September 1, 2001.