HBA-EDN C.S.H.B. 3144 77(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 3144 By: Hartnett Judicial Affairs 4/17/2001 Committee Report (Substituted) BACKGROUND AND PURPOSE 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. C.S.H.B. 3144 modifies provisions relating to guardianship of incapacitated persons, wards, or former wards to address these issues. 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. ANALYSIS C.S.H.B. 3144 amends the Texas Probate Code to modify provisions relating to guardianship for a ward, former ward, or incapacitated person. The bill requires a sheriff or other officer to personally serve citation to appear and answer an application for guardianship on a proposed ward's spouse if the whereabouts of the spouse are known or can be reasonably ascertained. 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). C.S.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). C.S.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). EFFECTIVE DATE September 1, 2001. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.H.B. 3144 modifies the original by requiring a sheriff or other officer to personally serve citation to appear and answer an application for guardianship on a proposed ward's spouse if the whereabouts of the spouse are known or can be reasonably ascertained (Sec. 633). The substitute deletes provisions relating to the creation of a management trust.