87R6714 KFF-F     By: Zaffirini S.B. No. 960       A BILL TO BE ENTITLED   AN ACT   relating to a pilot program that allows counties to establish   public guardians for certain incapacitated persons.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Chapter 1104, Estates Code, is amended by adding   Subchapter G-1 to read as follows:   SUBCHAPTER G-1. PILOT PROGRAM TO ESTABLISH PUBLIC GUARDIANS          Sec. 1104.326.  DEFINITIONS. In this subchapter:                (1)  "Office," unless the context requires otherwise,   means an office of public guardian established under the pilot   program.                (2)  "Participating county" means a county that   participates in the pilot program.                (3)  "Pilot program" means the pilot program   established under Section 1104.327.          Sec. 1104.327.  ESTABLISHMENT OF PILOT PROGRAM; PUBLIC   GUARDIANS. (a)  Not later than January 1, 2022, the Office of Court   Administration of the Texas Judicial System shall develop and   implement a pilot program under which the office will assist one or     more counties that elect to participate in the program to establish   public guardians in accordance with this subchapter.  The program   must require, if a county elects to participate in the program, that   the commissioners court of the county by order:                (1)  create an office of public guardian to provide   guardianship services described by Section 1104.334 to   incapacitated persons; or                (2)  enter into an agreement with a person operating a   nonprofit guardianship program or private professional   guardianship program located in the county or in an adjacent county   to act as a public guardian by providing guardianship services   described by Section 1104.334 to incapacitated persons.          (b)  Subject to Subsection (c) and Section 1104.328, the   commissioners court of a participating county shall appoint an   individual as public guardian to administer the office of public   guardian established under Subsection (a)(1) and may employ or   authorize the public guardian to employ personnel necessary to   perform the duties of the office, including personnel who will   represent the interests of a ward as a guardian on behalf of the   office if approved by the commissioners court.          (c)  The commissioners court of a participating county may   enter into an agreement with an individual to act as public guardian   under Subsection (b) on a part-time basis with appropriate   compensation if:                (1)  the commissioners court determines a full-time   appointment does not serve the needs of the county; and                (2)  the individual who is appointed on a part-time   basis is not employed in or does not hold another position that   presents a conflict of interest.          (d)  The commissioners courts of two or more participating   counties may collectively enter into an agreement:                (1)  to create and fund an office of public guardian for   purposes of Subsection (a)(1) and to appoint the same individual as   public guardian to that office under Subsection (b); or                (2)  with a person operating a guardianship program   described by Subsection (a)(2) to serve as a public guardian for   purposes of that subdivision.          (e)  An individual appointed as public guardian under   Subsection (b) serves a term that expires on September 1, 2023.          Sec. 1104.328.  QUALIFICATIONS OF PUBLIC GUARDIAN. To be   appointed as public guardian under Section 1104.327(b), an   individual must:                (1)  be a licensed attorney or be certified under   Subchapter C, Chapter 155, Government Code; and                (2)  have demonstrable guardianship experience.          Sec. 1104.329.  CONFLICT OF INTEREST. (a)  Except as   provided by Subsection (b), an office or a public guardian must be   independent from providers of services to wards and proposed wards   and may not directly provide housing, medical, legal, or other   direct, non-surrogate decision-making services to a ward or   proposed ward, unless approved by the court.          (b)  An office or a public guardian may provide money   management services described by Section 531.125, Government Code,   or other representative payee services to a ward or proposed ward.          Sec. 1104.330.  COMPENSATION. A person appointed or acting   as public guardian under Section 1104.327 shall receive   compensation as set by the commissioners court and is not entitled   to compensation under Subchapter A, Chapter 1155, unless approved   by the court or the person is appointed as guardian of a ward in   accordance with Section 1104.334(a)(2)(B).          Sec. 1104.331.  BOND REQUIREMENT. (a)  A public guardian   shall file with the court clerk a general bond in an amount fixed by   the commissioners court payable to the participating county and   issued by a surety company approved by the county judge. The bond   must be conditioned on the faithful performance by the person of the   person's duties and, if the public guardian administers an office,   the office's duties.          (b)  The bond required by this section satisfies any bond   required under Chapter 1105.          Sec. 1104.332.  VACANCY. If an individual appointed as   public guardian under Section 1104.327(b) vacates the position, the   commissioners court of the participating county shall appoint,   subject to Section 1104.328, an individual to serve as public   guardian for the unexpired term.          Sec. 1104.333.  POWERS AND DUTIES. (a)  An office or a   public guardian shall:                (1)  if applicable, evaluate the financial status of a   proposed ward to determine whether the proposed ward is eligible to   have the office or public guardian appointed guardian of the ward   under Section 1104.334(a)(2)(A); and                (2)  serve as guardian of the person or of the estate of   a ward, or both, on appointment by a court in accordance with the   requirements of this title.          (b)  In connection with a financial evaluation under   Subsection (a)(1) and on the request of an office or a public   guardian, a court with jurisdiction over the guardianship   proceeding may order the release of public and private records,   including otherwise confidential records, to the office or public   guardian.          (c)  Notwithstanding Section 552.261, Government Code, a   state agency may not charge an office or a public guardian for   providing the office or public guardian with a copy of public   information requested from the agency by the office or public   guardian.          Sec. 1104.334.  APPOINTMENT OF OFFICE OR PUBLIC GUARDIAN AS   GUARDIAN. (a)  In accordance with applicable law, including   Subchapter C, Chapter 1101, a court may appoint an office or a   public guardian to serve as guardian of the person or of the estate   of a ward, or both, if:                (1)  on the date the guardianship application is filed,   the ward resides in or is located in a participating county served   by an office or a public guardian; and                (2)  the court finds that the ward:                      (A)  does not have sufficient assets or other   resources to pay a private professional guardian to serve as the   ward's guardian and the appointment is in the ward's best interest;   or                      (B)  has sufficient assets or other resources to   pay a private professional guardian to serve as the ward's   guardian, the appointment is in the ward's best interest, and:                            (i)  the ward's family members who are   eligible for appointment as the ward's guardian agree to the   appointment of an office or a public guardian to serve as the ward's   guardian or are unable to agree on the person or persons that should   be appointed as the ward's guardian; or                            (ii)  the ward does not have a family member,   friend, or other suitable person willing and able to serve as the   ward's guardian.          (b)  For purposes of Subsection (a)(2), the determination of   a ward's ability to pay a private professional guardian is   dependent on:                (1)  the nature, extent, and liquidity of the ward's   assets;                (2)  the ward's disposable net income, including income   of a recipient of medical assistance that is used to pay expenses   under Section 1155.202(a);                (3)  the nature of the guardianship;                (4)  the type, duration, and complexity of services   required by the ward; and                (5)  additional, foreseeable expenses.          (c)  The number of appointments of an office under the pilot   program may not exceed 35 wards for each guardian representing the   interests of wards on behalf of the office.          (d)  If each guardian representing the interests of wards on   behalf of an office reaches the limitation provided by Subsection   (c), the office shall immediately give notice to the courts.          Sec. 1104.335.  CONFIDENTIALITY AND DISCLOSURE OF   INFORMATION. (a)  All files, reports, records, communications, or   working papers used or developed by an office or a public guardian   in the performance of duties relating to a financial evaluation   under Section 1104.333(a)(1) or the provision of guardianship   services are confidential and not subject to disclosure under   Chapter 552, Government Code.          (b)  Confidential information may be disclosed only for a   purpose consistent with this subchapter, as required by other state   or federal law, or as necessary to enable an office or a public   guardian to exercise the powers and duties as guardian of the person   or of the estate of a ward, or both.          (c)  A court on its own motion or on the motion of an   interested person may order disclosure of confidential information   only if:                (1)  a hearing on the motion is conducted;                (2)  notice of the hearing is served on the office or   public guardian and each interested person; and                (3)  the court determines after the hearing and an in   camera review of the information that disclosure is essential to   the administration of justice and will not endanger the life or   safety of any individual who:                      (A)  is being assessed for guardianship services;                      (B)  is a ward of the office or public guardian; or                      (C)  provides services to a ward of the office or   public guardian.          (d)  The Office of Court Administration of the Texas Judicial   System shall establish policies and procedures for the exchange of   information between offices, public guardians, and other   appropriate governmental entities, as necessary for offices,   public guardians, and governmental entities to properly execute   their respective duties and responsibilities relating to   guardianship services or other needed services for a ward. An   exchange of information under this subsection does not constitute a   release for purposes of waiving the confidentiality of the   information exchanged.          (e)  To the extent consistent with policies and procedures   adopted by an office or a public guardian, the office or public   guardian on request may release confidential information in the   record of an individual who is a former ward of the office or public   guardian to:                (1)  the individual;                (2)  the individual's guardian; or                (3)  an executor or administrator of the individual's   estate.          (f)  Before releasing confidential information under   Subsection (e), an office or a public guardian shall edit the   information to protect the identity of any individual whose life or   safety may be endangered by the release. A release of information   under Subsection (e) does not constitute a release for purposes of   waiving the confidentiality of the information released.          Sec. 1104.336.  CERTAIN ADMINISTRATIVE COSTS. (a)  If an   office or a public guardian is appointed guardian of the person or   of the estate of a ward, or both, the administrative costs of the   guardianship services provided to the ward may not be charged to the   ward's estate unless the court determines, subject to Subsection   (b), that the ward is financially able to pay all or part of the   costs.          (b)  A court shall measure a ward's ability to pay for costs   under Subsection (a) by whether the ward has sufficient assets or   other resources to pay a private professional guardian to serve as   the ward's guardian in accordance with Section 1104.334(b).          Sec. 1104.337.  COSTS OF GUARDIANSHIP PROCEEDING GENERALLY.   Notwithstanding any other law requiring the payment of court costs   in a guardianship proceeding and in accordance with Section   1155.151(a-2)(5), an office is not required to pay court costs on   the filing of or during a guardianship proceeding.          Sec. 1104.338.  CONTRACT WITH HEALTH AND HUMAN SERVICES   COMMISSION TO PROVIDE GUARDIANSHIP SERVICES. A contract under   Section 161.103, Human Resources Code, may allow for the provision   of guardianship services by an office.          Sec. 1104.339.  FUNDING USING SUPPLEMENTAL COURT-INITIATED   GUARDIANSHIP FEE; MONITORING.  (a)  Notwithstanding Section   118.067, Local Government Code, if a county participates in the   pilot program, the "supplemental court-initiated guardianship fee"   under Section 118.052(2)(E), Local Government Code, may be used to   support guardianship services provided by public guardians.          (b)  The Office of Court Administration of the Texas Judicial   System shall monitor participating counties to ensure money is   appropriately used in compliance with this section.          Sec. 1104.340.  ACCESS TO CRIMINAL HISTORY RECORD   INFORMATION; AUTHORITY TO CHARGE FEE.  (a) The clerk of a   participating county having venue of the proceeding for the   appointment of a guardian shall obtain criminal history record   information that is maintained by the Department of Public Safety   or the Federal Bureau of Investigation identification division and   may charge a fee in the manner and amount provided by Section   1104.402 relating to:                (1)  a public guardian appointed under Section   1104.327(b);                (2)  each person who represents or plans to represent   the interests of a ward as a guardian on behalf of an office; or                (3)  each person employed by an office who will:                      (A)  have personal contact with a ward or proposed   ward;                      (B)  exercise control over and manage a ward's   estate; or                      (C)  perform any duties with respect to the   management of a ward's estate.          (b)  The Department of Public Safety shall provide a report   requested under this section to the clerk in the manner provided by   Section 411.1386, Government Code.          Sec. 1104.341.  USE OF CRIMINAL HISTORY RECORD INFORMATION.   The court shall use the information obtained under Section 1104.340   only in determining whether to appoint, remove, or continue the   appointment of an office.          Sec. 1104.342.  ADDITION TO VERIFICATION OF ACCOUNT AND   STATEMENT REGARDING TAXES AND STATUS AS GUARDIAN. In addition to   the other requirements of Section 1163.005, an affidavit attached   to an account under that section must state whether the public   guardian or an individual certified under Subchapter C, Chapter   155, Government Code, who is providing guardianship services to the   ward and who is swearing to the account on the guardian's behalf, is   or has been the subject of an investigation conducted by the   Judicial Branch Certification Commission during the accounting   period.          Sec. 1104.343.  GUARDIAN'S AFFIDAVIT ON ANNUAL REPORT.  In   addition to the other requirements of Section 1163.101(c), an   affidavit under that subsection must state whether the public   guardian or an individual certified under Subchapter C, Chapter   155, Government Code, who is providing guardianship services to the   ward and who is filing the affidavit on the guardian's behalf, is or   has been the subject of an investigation conducted by the Judicial   Branch Certification Commission during the preceding year.          Sec. 1104.344.  MINIMUM STANDARDS FOR GUARDIANSHIP   SERVICES. The Office of Court Administration of the Texas Judicial   System shall consult with the Judicial Branch Certification   Commission to adopt minimum standards for the provision of   guardianship services by offices under the pilot program.          Sec. 1104.345.  CERTIFICATION OF CERTAIN OFFICE PERSONNEL.   An individual who will provide guardianship services to a ward of an   office or represent the interests of a ward as a guardian on behalf   of a public guardian must hold a certificate issued under   Subchapter C, Chapter 155, Government Code.          Sec. 1104.346.  REPORTS BY OFFICES. Not later than   September 1, 2022, each office of public guardian established under   the pilot program shall provide to the Office of Court   Administration of the Texas Judicial System a report containing:                (1)  the number of wards served by the office under the   pilot program;                (2)  the total amount of any money received from this   state for the provision of guardianship services; and                (3)  the amount of money received from any other public   source, including a participating county or the federal government,   for the provision of guardianship services, reported by source, and   the total amount of money received from those public sources.          Sec. 1104.347.  REPORT ON PILOT PROGRAM. (a)  Not later than   December 1, 2022, the Office of Court Administration of the Texas   Judicial System shall submit a report to the governor and the   legislature that contains an evaluation of the pilot program,   including the establishment and operation of offices of public   guardians under the program and the provision of guardianship   services by the offices. The report must include:                (1)  an analysis of costs and offsetting savings or   other benefits to the state as a result of the establishment and   operation of offices and public guardians under the program; and                (2)  recommendations for legislation, if any.          (b)  If it is cost-effective and feasible, the Office of   Court Administration of the Texas Judicial System may contract with   an appropriate research or public policy entity with expertise in   gerontology, disabilities, and public administration to conduct   the analysis described by Subsection (a)(1).          Sec. 1104.348.  RULES. The supreme court, in consultation   with the Office of Court Administration of the Texas Judicial   System and the presiding judge of the statutory probate courts   elected under Section 25.0022, Government Code, shall adopt rules   necessary to implement the pilot program.          Sec. 1104.349. EXPIRATION.  The pilot program terminates and   this subchapter expires on September 1, 2023.          SECTION 2.  Not later than January 1, 2022, the supreme court   shall adopt rules necessary to develop and implement the pilot   program required by Subchapter G-1, Chapter 1104, Estates Code, as   added by this Act, including rules governing:                (1)  the transfer of a guardianship of the person or of   the estate of a ward, or both, if appropriate, to an office of   public guardian established under that program or a public guardian   contracted under that program; and                (2)  the transfer or continuation of a guardianship of   the person or of the estate of a ward, or both, if appropriate, from   an office of public guardian established under the program or a   public guardian contracted under the program on the expiration of   the program.          SECTION 3.  This Act takes effect September 1, 2021.