85R7236 KFF-F     By: Creighton S.B. No. 2016       A BILL TO BE ENTITLED   AN ACT   relating to parental administrations for certain adults with   intellectual disabilities and the prosecution of a related criminal   offense.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 1002.0015, Estates Code, is amended to   read as follows:          Sec. 1002.0015.  ALTERNATIVES TO GUARDIANSHIP.   "Alternatives to guardianship" includes the:                (1)  execution of a medical power of attorney under   Chapter 166, Health and Safety Code;                (2)  appointment of an attorney in fact or agent under a   durable power of attorney as provided by Subtitle P, Title 2;                (3)  execution of a declaration for mental health   treatment under Chapter 137, Civil Practice and Remedies Code;                (4)  appointment of a representative payee to manage   public benefits;                (5)  establishment of a joint bank account;                (6)  creation of a management trust under Chapter 1301;                (7)  creation of a special needs trust;                (8)  designation of a guardian before the need arises   under Subchapter E, Chapter 1104; [and]                (9)  establishment of alternate forms of   decision-making based on person-centered planning; and                (10)  appointment of a parental administrator under   Chapter 1359.          SECTION 2.  Section 1002.002, Estates Code, is amended to   read as follows:          Sec. 1002.002.  ATTORNEY AD LITEM. "Attorney ad litem"   means an attorney appointed by a court to represent and advocate on   behalf of:                (1)  a proposed ward, an incapacitated person, an   unborn person, or another person described by Section 1054.007 in a   guardianship proceeding; or                (2)  a proposed incapacitated adult, as defined by   Section 1359.001, in a proceeding for a parental administration   under Chapter 1359.          SECTION 3.  Subchapter A, Chapter 1202, Estates Code, is   amended by adding Section 1202.004 to read as follows:          Sec. 1202.004.  TERMINATION OF GUARDIANSHIP OF THE PERSON IF   ELIGIBLE FOR PARENTAL ADMINISTRATION. On the application of a   parent, as defined by Section 1359.001, a court with jurisdiction   over a guardianship of the person may terminate the guardianship on   a finding that the ward qualifies as an incapacitated adult under   Chapter 1359 and appoint a parental administrator of the   incapacitated adult under that chapter.          SECTION 4.  Subtitle I, Title 3, Estates Code, is amended by   adding Chapter 1359 to read as follows:   CHAPTER 1359. PARENTAL ADMINISTRATION   SUBCHAPTER A. GENERAL PROVISIONS RELATING TO APPOINTMENT OF   PARENTAL ADMINISTRATOR          Sec. 1359.001.  DEFINITIONS. (a) In this chapter:                (1)  "Incapacitated adult" means a person who is 18   years of age or older or will be 18 years of age within 180 days of   the date of an application under this chapter who, because of a   mental condition, is substantially unable to:                      (A)  provide food, clothing, or shelter for   himself or herself;                      (B)  care for the person's own physical health; or                      (C)  manage the person's own financial affairs.                (2)  "Intellectual disability" has the meaning   assigned by Section 591.003, Health and Safety Code.                (3)  "Parent" has the meaning assigned by Section   1002.022, except that the term includes a person who was appointed   the conservator of a child under Chapter 153, Family Code.                (4)  "Proposed incapacitated adult" means a person   alleged in a parental administration proceeding under this chapter   to be an incapacitated adult.          (b)  To the extent a definition of a term provided by this   chapter conflicts with the definition of that term provided by   Chapter 1002, the definition provided by this chapter prevails in   this chapter.          Sec. 1359.002.  APPLICABILITY. This chapter applies only   to:                (1)  an incapacitated adult whose incapacity has   existed since the person was a minor; and                 (2)  the parent of an incapacitated adult.   SUBCHAPTER B. APPOINTMENT OF PARENTAL ADMINISTRATOR          Sec. 1359.051.  PARENTAL ADMINISTRATOR. The parent of a   proposed incapacitated adult may in accordance with this chapter   seek appointment as the parental administrator of that adult with   the rights and duties granted under Section 1359.061.          Sec. 1359.052.  APPLICATION; VENUE. (a) A parent of a   proposed incapacitated adult may apply to the court for the   appointment of a parental administrator.          (b)  Subject to Section 1359.053, the application must be   under oath and in writing and must include:                (1)  the proposed incapacitated adult's name, date of   birth, and address;                (2)  the name, relationship, and address of the person   the applicant seeks to have appointed as parental administrator;                (3)  a description of the nature of the proposed   incapacitated adult's alleged incapacity and a statement that the   incapacity existed during minority;                (4)  a statement that the proposed incapacitated adult   is totally without capacity to care for himself or herself;                (5)  a statement of the facts requiring the appointment   of a parental administrator;                (6)  a statement of the nature and description of any   existing guardianship of the proposed incapacitated adult;                (7)  a statement as to whether the proposed   incapacitated adult was the subject of a conservatorship proceeding   and, if so, the name of the conservator;                (8)  the name of the proposed incapacitated adult's   spouse, if any, and the spouse's address or a statement that the   spouse is deceased;                (9)  the names of the proposed incapacitated adult's   parents and, for each parent, the parent's address or a statement   that the parent is deceased;                (10)  the name and age of each of the proposed   incapacitated adult's siblings, if any, and, for each sibling, the   sibling's address or a statement that the sibling is deceased; and                (11)  a statement of facts showing that the proposed   incapacitated adult is a resident of the county in which the   proceeding is brought.          (c)  Venue for a proceeding for the appointment of a parental   administrator is the same as venue for a proceeding for the   appointment of a guardian.          Sec. 1359.053.  CONFIDENTIALITY OF CERTAIN ADDRESSES. An   application filed under Section 1359.052 may omit the address of a   person named in the application if:                (1)  the application states that the person is   protected by a protective order issued under Chapter 85, Family   Code;                (2)  a copy of the protective order is attached to the   application as an exhibit;                (3)  the application states the county in which the   person resides;                (4)  the application indicates the place where notice   to or the issuance and service of citation on the person may be made   or sent; and                (5)  the application is accompanied by a request for an   order under Section 1051.201 specifying the manner of issuance,   service, and return of citation or notice on the person.          Sec. 1359.054.  APPOINTMENT OF ATTORNEY AD LITEM IN   PROCEEDING FOR APPOINTMENT OF PARENTAL ADMINISTRATOR. (a) In a   proceeding for the appointment of a parental administrator, the   court shall appoint an attorney ad litem to represent the proposed   incapacitated adult's interests.          (b)  The attorney ad litem must have the certification   required by Section 1054.201.          (c)  The provisions of Chapter 1054 applicable to the term of   appointment, right to access records, and duties of an attorney ad   litem appointed in a guardianship proceeding apply to an attorney   ad litem appointed under this section in a proceeding for the   appointment of a parental administrator.          Sec. 1359.055.  DETERMINATION OF INCAPACITY: EXAMINATIONS.   (a) The court may not grant an application for the appointment of a   parental administrator for a proposed incapacitated adult unless   the applicant presents to the court:                (1)  a written letter or certificate from a physician   licensed in this state that:                      (A)  is dated not earlier than the 120th day   before the date the application is filed;                       (B)  is based on an examination the physician   performed not earlier than the 120th day before the date the   application is filed; and                      (C)  complies with Subsection (b); or                (2)  a written letter or certificate that:                      (A)  shows that not earlier than 24 months before   the date of a hearing on the application:                            (i)  the proposed incapacitated adult has   been examined by a physician or psychologist licensed in this state   or certified by the Health and Human Services Commission to perform   the examination, in accordance with rules of the executive   commissioner of the Health and Human Services Commission governing   examinations of that kind, and the physician's or psychologist's   written findings and recommendations include a determination of an   intellectual disability; or                            (ii)  a physician or psychologist licensed   in this state or certified by the Health and Human Services   Commission to perform examinations described by Subparagraph (i)   updated or endorsed in writing a prior determination of an   intellectual disability for the proposed incapacitated adult made   by a physician or psychologist licensed in this state or certified   by the commission; and                      (B)  complies with Subsection (b).          (b)  A letter or certificate under Subsection (a)(1) or (2)   must:                (1)  describe the nature, degree, and severity of the   proposed incapacitated adult's incapacity, including any   functional deficits regarding the proposed incapacitated adult's   ability to consent to medical, dental, psychological, or   psychiatric treatment;                (2)  provide an evaluation of the proposed   incapacitated adult's physical condition and mental functioning   and summarize the proposed incapacitated adult's medical history if   reasonably available, including whether the incapacitated adult's   incapacity existed when the incapacitated adult was a minor;                (3)  state how or in what manner the proposed   incapacitated adult's ability to make or communicate responsible   decisions concerning himself or herself is affected by the proposed   incapacitated adult's physical or mental health, including the   proposed incapacitated adult's ability to:                      (A)  understand or communicate;                      (B)  recognize familiar objects and individuals;                      (C)  solve problems;                      (D)  reason logically; and                      (E)  administer to daily life activities with and   without supports and services;                (4)  state whether any current medication affects the   proposed incapacitated adult's demeanor or the proposed   incapacitated adult's ability to participate fully in a court   proceeding;                (5)  describe the precise physical and mental   conditions underlying a diagnosis of an intellectual disability;                (6)  state whether a parental administration is   necessary for the proposed incapacitated adult; and                (7)  include any other information required by the   court.          (c)  If the court determines it is necessary, the court may   appoint a physician to examine the proposed incapacitated adult.   The court must make a determination with respect to the necessity   for a physician's examination of the proposed incapacitated adult   at a hearing held for that purpose. Not later than the fourth day   before the date of the hearing, the applicant shall give to the   proposed incapacitated adult and the proposed incapacitated   adult's attorney ad litem written notice specifying the purpose and   the date and time of the hearing.          (d)  A physician who examines the proposed incapacitated   adult for purposes of Subsection (a)(1) shall file with the court   and provide to the attorney ad litem appointed to represent the   proposed incapacitated adult a written letter or certificate from   the physician that complies with the requirements of Subsections   (a)(1) and (b).          Sec. 1359.056.  SERVICE AND NOTICE. (a) The citation and   the application filed under this chapter shall be personally served   on the proposed incapacitated adult by a sheriff, constable, or   other person authorized by law to serve process.          (b)  Notice shall be given by certified mail, return receipt   requested, to:                (1)  a guardian of the proposed incapacitated adult, if   applicable, unless the guardian is the applicant; and                (2)  each other person named under Section   1359.052(b)(8), (9), or (10).          (c)  The applicant shall file with the court:                (1)  a copy of any notice required by Subsection (b) and   the proof of delivery of the notice; and                (2)  for each notice, an affidavit sworn to by the   applicant or the applicant's attorney stating:                      (A)  that the notice was mailed as required by   Subsection (b); and                      (B)  the name of the person to whom the notice was   mailed, if the person's name is not shown on the proof of delivery.          (d)  A person who is entitled to receive notice under   Subsection (b) may, by writing filed with the clerk, waive the   receipt of notice either in person or through an attorney ad litem.          Sec. 1359.057.  HEARING. (a) At a hearing for the   appointment of a parental administrator, the court shall inquire   into:                (1)  the ability of the proposed incapacitated adult   to:                      (A)  feed, clothe, and shelter himself or herself;   and                      (B)  care for his or her own physical health;                (2)  whether the incapacity existed when the proposed   incapacitated adult was a minor; and                (3)  the parental status of the applicant seeking to be   appointed parental administrator.          (b)  A proposed incapacitated adult must be present at the   hearing unless the court, on the record or in the order, determines   that a personal appearance is not necessary.          (c)  The court may close the hearing at the request of the   proposed incapacitated adult.          (d)  A proposed incapacitated adult is entitled to a jury   trial on timely request.          Sec. 1359.058.  USE OF RECORDS. Current medical,   psychological, and intellectual testing records are a sufficient   basis for an appointment of a parental administrator, but the   findings and recommendations contained in those records are not   binding on the court.          Sec. 1359.059.  FINDINGS AND PROOF REQUIRED. Before   appointing a parental administrator for a proposed incapacitated   adult, the court must find by a preponderance of the evidence that:                (1)  the proposed incapacitated adult is an   incapacitated adult;                (2)  the incapacitated adult's incapacity existed when   the incapacitated adult was a minor; and                (3)  the person to be appointed parental administrator   is suitable to act as parental administrator.          Sec. 1359.060.  APPOINTMENT OF PARENTAL ADMINISTRATOR.   After making the findings required by Section 1359.059, the court   may appoint a parent of the person found to be an incapacitated   adult as parental administrator.          Sec. 1359.061.  RIGHTS AND DUTIES OF PARENTAL ADMINISTRATOR.   (a)  A parental administrator has the following rights and duties:                (1)  the right to have physical possession of the   incapacitated adult and to establish the incapacitated adult's   legal domicile;                (2)  the duty to provide care, supervision, and   protection for the incapacitated adult;                (3)  the duty to provide the incapacitated adult with   clothing, food, medical care, and shelter;                (4)  the power to consent to medical, psychiatric, and   surgical treatment of the incapacitated adult;                (5)  the power to establish a trust in accordance with   42 U.S.C. Section 1396p(d)(4)(B) and direct that the income of the   incapacitated adult as defined by that section be paid directly to   the trust, solely for the purpose of the incapacitated adult's   eligibility for medical assistance under Chapter 32, Human   Resources Code; and                (6)  the power to sign documents necessary or   appropriate to facilitate employment of the incapacitated adult.          (b)  With respect to the rights and duties described under   Subsection (a), a parental administrator has the same authority as   a guardian of the person under law.   SUBCHAPTER C. REPORTING          Sec. 1359.101.  REPORT OF PARENTAL ADMINISTRATOR. At any   time after a parental administrator is appointed, the court, on its   own motion or on the motion of a person interested in the welfare of   the incapacitated adult and for good cause shown, may order the   parental administrator to submit to the court a report on the   condition of the incapacitated adult. The parental administrator   must include in the report a statement regarding:                (1)  whether the incapacitated adult is receiving   residential care in a public or private residential care facility;   and                (2)  if the incapacitated adult is receiving care in a   residential care facility, the necessity for continued care in the   facility.   SUBCHAPTER D.  INVESTIGATION OF ALLEGED ABUSE, NEGLECT, OR   EXPLOITATION CONCERNING INCAPACITATED ADULT          Sec. 1359.151.  INTERFERENCE WITH INVESTIGATION OR SERVICES   PROHIBITED. A parental administrator may not interfere with:                (1)  an investigation by the Department of Family and   Protective Services, another state agency, or a law enforcement   agency of alleged abuse, neglect, or exploitation of the   incapacitated adult; or                (2)  the provision of protective services by the   Department of Family and Protective Services or another state   agency to the incapacitated adult.          Sec. 1359.152.  REPORT TO COURT OF INVESTIGATION OF ALLEGED   ABUSE, NEGLECT, OR EXPLOITATION. Subject to rules adopted under   Section 48.101, Human Resources Code, the Department of Family and   Protective Services or another state agency that conducts an   investigation of alleged abuse, neglect, or exploitation of an   incapacitated adult for whom a parental administrator is appointed   shall report the results of the investigation to the court with   jurisdiction of the parental administration.   SUBCHAPTER E. REMOVAL OR TERMINATION OF POWERS OF PARENTAL   ADMINISTRATOR          Sec. 1359.201.  GROUNDS FOR REMOVAL OF PARENTAL   ADMINISTRATOR. A court may remove a parental administrator if the   parental administrator:                (1)  fails to comply with a court order for a report   under Section 1359.101;                (2)  is proven to have been guilty of gross misconduct   or gross mismanagement in the performance of duties as parental   administrator;                (3)  becomes an incapacitated person;                (4)  is convicted of an offense and subsequently   confined or imprisoned; or                (5)  for any other reason becomes unable to properly   perform the parental administrator's duties.          Sec. 1359.202.  TERMINATION OF PARENTAL ADMINISTRATOR'S   RIGHTS AND POWERS ON CONVERSION TO GUARDIANSHIP. The rights and   powers of a parental administrator terminate when a court orders   the parental administration converted into a guardianship of the   person.          Sec. 1359.203.  PROCEDURE FOR REMOVAL OF PARENTAL   ADMINISTRATOR OR CONVERSION OF PARENTAL ADMINISTRATION TO   GUARDIANSHIP. (a)  The court on the court's own motion or on the   application of any person may initiate a proceeding to:                (1)  subject to Subsection (b), remove a parental   administrator on proof of a ground for removal described by Section   1359.201; or                (2)  subject to Subsection (c), convert a parental   administration for an incapacitated adult to a guardianship of the   person for the incapacitated adult.          (b)  In a proceeding for the removal of a parental   administrator initiated under Subsection (a)(1), the court shall   have the parental administrator cited by personal service to appear   before the court. The citation must state:                (1)  the time and place of a hearing on the matter at   which the parental administrator is to appear; and                (2)  the alleged ground for removal of the parental   administrator.          (c)  Notice of a proceeding to convert a parental   administration and appoint a guardian of the person initiated under   Subsection (a)(2) must be provided in the manner required by   Chapter 1051.          (d)  Notwithstanding the requirements of Section 1101.104,   an application for the conversion of a parental administration and   the appointment of a guardian of the person does not require a   written letter or certificate from a physician licensed in this   state.          SECTION 5.  The heading to Section 25.10, Penal Code, is   amended to read as follows:          Sec. 25.10.  INTERFERENCE WITH CERTAIN POSSESSORY RIGHTS [OF   GUARDIAN OF THE PERSON].          SECTION 6.  Sections 25.10(a) and (b), Penal Code, are   amended to read as follows:          (a)  In this section:                (1)  "Incapacitated adult" has the meaning assigned by   Section 1359.001, Estates Code.                (1-a)  "Possessory right" means:                      (A)  the right of a guardian of the person to have   physical possession of a ward and to establish the ward's legal   domicile, as provided by Section 1151.051 [767(1)], Estates [Texas   Probate] Code; or                      (B)  the right of a parental administrator to have   physical possession of an incapacitated adult and to establish the   incapacitated adult's legal domicile, as provided by Section   1359.061, Estates Code.                (2)  "Ward" has the meaning assigned by Section   1002.030 [601], Estates [Texas Probate] Code.          (b)  A person commits an offense if the person takes,   retains, or conceals a ward or incapacitated adult when the person   knows that the person's taking, retention, or concealment   interferes with a possessory right with respect to the ward or   incapacitated adult.          SECTION 7.  To the extent of any conflict, this Act prevails   over another Act of the 85th Legislature, Regular Session, 2017,   relating to nonsubstantive additions to and corrections in enacted   codes.          SECTION 8.  The changes in law made by this Act to Section   25.10, Penal Code, apply only to an offense committed on or after   the effective date of this Act. An offense committed before the   effective date of this Act is governed by the law in effect on the   date the offense was committed, and the former law is continued in   effect for that purpose. For purposes of this section, an offense   was committed before the effective date of this Act if any element   of the offense occurred before that date.          SECTION 9.  This Act takes effect September 1, 2017.