Texas Guardianship & Elder Abuse Prevention Legislation 2021 Summary

6/11/2025 1 TEXAS GUARDIANSHIP & ELDER ABUSE PREVENTION LEGISLATION FROM 2021 Steven D. Fields Senior Attorney, Prob. Ct. #2 of Tarrant County sdfields@tarrantcounty.com 817-884-1049

2 6/11/2025 Key to Abbreviations AAL = Attorney ad litem EC = Estates Code G = Guardian GE = Guardian of Estate GP = Guardian of Person GPE = G of Person & Estate GAL = Guardian ad litem GC = Government Code GS = Guardianship IP = Incapacitated Person JBCC = Judicial Branch Certification Commission OCA = Office of Court Administration TG = Temporary Guardian TGP = Temporary Guardian of the Person

3 6/11/2025 How to Find Code Section On-Line Go to www.capitol.texas.gov Click on Statutes Click on triangle and scroll to desired Code Click on triangle by Article/Chapter to get right chapter Click on triangle to Art./Sec. to get right section Click on Go

4 6/11/2025 Eight Bills Passed in 2021 HB 79 Regional GS Courts SB 615 Certification & Misc. SB 626 REPTL Guardianship Bill SB 692 OCA Access to Financial Records SB 1129 Intrastate Transfer & Mediation HB 1156 Financial Abuse of Elderly HB 1296 Notice to Guardians HB 3394 Capacity of Guardians

5 6/11/2025 County Courts at Law Jurisdiction EC 1021.001(a-1) Original Probate Jurisdiction. In counties without statutory probate courts in which there is a county court at law exercising original probate jurisdiction, a matter related to a guardianship proceeding includes: All matters previously described in EC1021.001(a); The interpretation and administration of a testamentary trust in which a ward is an income or remainder beneficiary; and The interpretation and administration of an inter-vivos trust in which a ward is an income or remainder beneficiary. (SB 626)

6 6/11/2025 Intrastate GS Transfer Procedure EC 1023.004c Notice - Court making motion to transfer a GS to another TX county can serve the G by CMRR to appear and show cause why a GS should not be transferred. EC 1023.005a Hearing & Findings At hearing on motion to transfer, if: transfer is in best interest* of the ward; and either Ward has resided in new county for at least six month; or Good cause is not otherwise shown to deny the transfer, *EC 1023.005b - To determine best interest of the ward, court is to consider the interests of justice, convenience of parties and preference of ward who is over 12 years old.

7 6/11/2025 Intrastate GS Transfer Order EC 1023.005a GS Transfer Order shall: authorize transfer upon payment of court costs; and require that existing bond remain in effect until new bond or rider is filed; and certify that GS is in compliance with EC at the time of the transfer EC 1023.005c Acceptance of Transfer - On receipt of a transfer order, the county to which GS is transferred shall accept the transfer of the GS

8 6/11/2025 Intrastate GS Transfer Procedure EC 1023.007 Effective Date. The order transferring a GS does not take effect until the case file and certified copy of the index are filed in electronic or paper form with county clerk of county to which case was transferred. EC 1023.008 Continuing Jurisdiction. The court to which the GS is transferred becomes the court of continuing, exclusive jurisdiction and any proceeding related to the GS continues as if the proceeding commenced in the receiving court. All orders signed by transferring court are enforceable by receiving court.

9 6/11/2025 Intrastate GS Transfer Procedure EC 1023.008a(5) The court ordering the transfer does not retain jurisdiction of the ward nor the authority to enforce an order for a violation that occurred before or after the transfer. EC 1023.011 Liability. The judge of the court from which a GS is transferred may not be held liable for any injury, damage or loss to the ward or ward s estate that occurs after the transfer. The judge of court to which a case is transferred may not be held liable for any loss that occurred before the transfer. (SB 1129)

10 6/11/2025 Attorney Guardianship Certification EC 1054.201a & b Universal Application. An attorney representing any person s interests in a guardianship proceeding must be certified by the State Bar of Texas as having completed four hours of guardianship law and procedure including one hour on alternatives to GS and supports and services available to proposed wards. EC 1054.201c Certification Grace Period. An attorney may enter an appearance to represent a party in a guardianship proceeding but must complete the four hour course not later than 14 days after filing appearance and before filing any substantive motion in the GS. (SB615) GC 81.114 Courses. State Bar is directed to provide on-line and affordable courses for attorney guardianship certification.

11 6/11/2025 Mediation of Contested GS Matters EC 1055.151b Referral to Mediation. On written agreement of the parties or on the court s own motion, the court may refer a contested GS proceeding to mediation. EC 1055.151b Issue of Capacity. Capacity of proposed ward may be an issue to be mediated, but applicants for GS must still prove to the court that PW is an incapacitated person per EC 1101. Alternatives to GS and Supports & Services shall be evaluated by all parties to the mediation to see if such might be feasible to avoid the need for a GS.

12 6/11/2025 Mediation Costs EC 1055.151 Cost of Mediation shall be paid by the parties to the proceeding unless otherwise ordered by the court. If the parties are unable to pay the cost of mediation, the court may refer the parties to a local alternative dispute resolution center. A local alternative resolution center may waive mediation costs as appropriate. (SB 1129)

13 6/11/2025 Additions to GS Applications EC 1101.001. New Requirements in GS Application. If the applicant for guardianship has any former names, the former names must be included in the application. In addition to the approximate value of the proposed ward s property, the application must now include a detailed description of both liquid assets including any compensation, pension, insurance or allowance, and non-liquid assets including real property. (SB 615) CPRC 30.014a All initial pleadings in any civil proceeding (including GS proceedings) must include the last 3 digits of a party s social security number and driver s license number. (SB 626)

14 6/11/2025 Additions to GS Orders EC 1101.153 Waiver of GS Training. If the court waives the guardian s training requirement, the guardian s appointment order must contain a finding that the waiver is in accordance with the rules* adopted by the TX Sup. Ct. under Gov. Code 155.203. (SB 626) GC 155.203-204 *rules are to ensure that before a person is appointed guardian, the person completes an free on-line training course designed by OCA to educate proposed guardians about responsibilities, alternatives to GS, supports and services available to proposed wards and a ward s bill of rights and shall identify the circumstances under which a court may waive this training. Training does not apply to the initial appointment of a temporary guardian unless there is a motion to extend the TG s term.

15 6/11/2025 Guardian s Oath EC 1105.003 Oath or Declaration. In order to qualify, a G or TG must take an Oath or make a Declaration at any time prior to the 21st day after the date of the GS Order or before the letters of GS are revoked for failure to qualify. EC 1105.051c Oath must be substantially as follows: I (insert G s name) do solemnly swear that I will discharge faithfully the duties of guardian of (insert the person , the estate, or the person and estate ) of (insert ward s name), an incapacitated person, according to law. EC 1105.052 - Oath may be taken before anyone authorized to administer oaths under laws of Texas. (notary, clerk, judge, etc.)

16 6/11/2025 Guardian s Declaration EC 1105.051d Declaration. A declaration (taken by a person to serve as guardian or temporary guardian in order to qualify to serve - EC 1105.001) must be substantially as follows: My name is (insert guardian s name), my date of birth is (insert G s date of birth), and my address is (insert G s address), I declare under penalty of perjury that the information in this declaration is true and correct. I solemnly declare that I will discharge faithfully the duties of (insert guardian or temporary guardian ) of (insert the person, the estate, or the person and estate ) of (insert ward s name), an incapacitated person, according to law. Signed on (insert date of signing). EC 1105.052 The declaration prescribed by EC 1105.051 must be signed by the declarant. (SB 626)

17 6/11/2025 Legal Proceedings Involving Wards EC 1151.005 No Exclusion. The GP or GE of a ward may not be excluded from attending a legal proceeding: In which the Ward is a party, or In which the Ward is participating as a witness. (SB 615)

18 6/11/2025 Notice to Claimants EC 1153.001(a)(1) within one month after qualifying, a guardian of the estate must publish a notice to potential claimants against the estate. Notice must now be published in a newspaper of general circulation in the county with jurisdiction over the guardianship (newspaper no longer has to be printed in the county with jurisdiction). EC 1153.001c If there is no newspaper of general circulation in such county, the notice must be posted by the county clerk. (SB 626)

19 6/11/2025 Sales of Real Property EC 1158.256(b)(2) Order To Specify Manner of Sale as inwhether the property is to be sold at public auction or private sale and, if at public auction, the time and place of the auction. EC 1158.401 Public Auction. A public sale of real property of a GS estate shall be made at public auction. Notice of the public auction shall be published by the GE in the county in which the estate is located (unless court orders auction in county where GS proceeding is pending) and must include a reference to the order of sale, include the time, place, and required terms of sale, and briefly describe the real property to be sold.

20 6/11/2025 Sales at Public Auction EC 1158.402 Completion of Auction. A public auction of real property of an estate shall be completed on the bid of the highest bidder. EC 1158.403 Time & Place of Auction. The auction is to occur on the first Tuesday of the month after publication of notice has been completed between the hours of 10 a.m. and 4 p.m. at the courthouse door in the county in which the real property is located. Exception to Time: If first Tuesday is January 1 or July 4, then auction to occur on first Wednesday of the month. Exception to Location: If real property is located in more than one county, auction can be in any county where property is located.

21 6/11/2025 Sales at Public Auction EC 1158.404 Continuation of Auction. A public auction that is not completed on the day advertised may be continued from day to day between 10 a.m. and 4 p.m. by oral public announcement. The continuation should be mentioned in the GE s report of sale. EC 1158.405 Failure of Bidder to Comply. If a successful bidder fails to comply with the terms of the bid, the property shall be re-advertised and auctioned without further court order. GE can recover 10% penalty against defaulting bidder by suit in any court with jurisdiction over claims in county in which auction was held.

22 6/11/2025 Sale of Real Property by Private Sale EC 1158.451 Terms of Sale. A guardian of the estate may enter into a contract for private sale of real property in the manner the court directs in the order of sale. EC 1158.502 Sale of Easement or Right of Way. The same procedure is used for these as provided by law for a private sale of real property of a ward by contract. EC 1158.551 Report. GE is to file report to court no later than 30 days after the bid is made or the property is placed under contract. The report is to include whether auction or private sale used; the date of bid or contract; and the amount of the bid or purchase price.

23 6/11/2025 Action of Court on Report EC 1158.552 Action of Court. After the expiration of 5 days from the date a report is filed, the court shall consider the manner in which the auction or contract was entered into and consider the evidence in support of or against the report and determine the sufficiency of the guardian s bond. EC 1158.553 & .556 Approval. If the court is satisfied that the G s bond is sufficient, the court may approve the sale. If the G s bond is not sufficient, the court may not approve the sale until the bond is increased. The court no longer confirms sales. If the court is not satisfied that the sale was made for a fair price, the court may enter an order setting aside the bid or contract and ordering a new sale if necessary. (SB 626)

24 6/11/2025 Removal of Guardian with Notice EC 1203.052b JBCC Complaint. On the receipt of a complaint of the GS certification program of the JBCC, the court may remove a guardian who would be ineligible for appointment because of the guardian s failure to maintain JBCC certification. CMRR Notice. The guardian shall be given notice, by certified mail, return receipt requested to appear and contest the request for removal at a time and place set in the notice. (HB 1296)

25 6/11/2025 Possible Incapacity of a Guardian EC 1203.052c Attorney ad Litem Appointment. If a court has probable cause to believe that a guardian has become an incapacitated person, a court may, on its own motion or on the motion of an interested person, appoint an attorney ad litem to represent the guardian s interests as a possible incapacitated person under EC 1054.007. Court Investigator or Guardian ad Litem Appointment. The court may also appoint either of these to investigate whether the guardian should be removed under EC1203.052a(5)(A) due to being an incapacitated person. Physician Appointment. The court may also appoint physicians to examine the guardian to determine if the guardian is an incapacitated person subject to removal. (HB 3394)

26 6/11/2025 Temporary Guardian Citation EC 1251.005(a) Citation Service. On the filing of an application for temporary GS, the clerk shall issue citation to be served on the proposed ward and the proposed ward s appointed attorney and on the proposed TG if that person is not the applicant for TG. (SB 626) (b) Citation Contents. Citation must describe the rights of the parties and the date, time, place, purpose and possible consequences of a hearing on the application. (b-1) Request to be Notified. Citation to include a notice to interested persons of their right per EC 1051.252 to file a written request to be notified of all pleadings filed in the TG proceeding by any person or by a specific person. (SB 615)

27 6/11/2025 Temporary Guardian s Final Report EC 1251.153(a-1) Final Report of TG of Person. At the expiration of a TGP, the TG shall file with the court clerk a final report as follows: If Ward is Living. Report is to describe each reason the TG expired including: whether the W was found by the court to have full capacity, or sufficient capacity with supports and services, to care for himself/herself; whether alternatives to GS have been established to meet W s needs; or Whether a permanent guardian was appointed and has qualified to serve as the W s guardian.

28 6/11/2025 Final Report of Temporary GP EC 1251.153(a-1)(2) - If Ward is Deceased. Report is to include the date and place of death, if known, in the form and manner of the report required to be filed by a guardian of the person under EC1163.103. EC 1251.153(b) - Approval by Court. On proof of delivery of ward s personal property to persons legally entitled to possession and approval by the court of the final report of the temporary guardian of the person, the temporary guardian shall be discharged and the sureties on the TG s bond shall be released as to future liability. (SB 615)

29 6/11/2025 Interstate Guardianship Transfer EC 1253.001 Transfer to Another State. On application of the guardian or on the court s own motion, a court that has jurisdiction over the guardianship may transfer the guardianship to a court in a foreign jurisdiction to which the ward has permanently moved. Note Courts may now transfer cases to another state on its own motion meaning that a court may have its Court Investigator transfer such cases or may appoint a Guardian ad Litem to file to transfer cases to another state when a ward has permanently moved out of Texas. (SB 615)

30 6/11/2025 Notice on Management Trust Application EC 1301.0511(a)&(b) Notice Requirements. If an application for GS is not pending for the person for whom an application for the creation of a management trust is filed, notice shall be issued and served in the manner provided in EC 1051 Subchapter C just like an initial application for guardianship. EC 1301.0511(c) Notice Requires on Wards. If the person for whom an application for creation of management trust is filed is a Ward, the sheriff or other officer shall serve the persons described in EC 1051.103 and shall serve each guardian of the Ward with citation to appear and answer the application.

31 6/11/2025 Required Terms for Management Trusts EC 1301.101(a)(6) & 1301.203 Termination of Trust. Minors. If the person for whom trust is created is a minor only, the trust terminates on the earlier of the person s death or the person s 18th birthday or on the date provided by court order which may not be later than the person s 25th birthday. Minors + IP. If a minor is also an incapacitated person for a reason other than being a minor, the trust terminates on the person s death or when the person regains capacity. Incapacitated Persons. If the person for whom the trust is created is not a minor, the trust terminates according to the terms of the trust; or, on the date the court determines that continuing the trust is not longer in the person s best interests per EC 1301.202c; or, on the person s death. (SB 626)

32 6/11/2025 Withdrawal of Funds - Non-Resident Guardians EC 1355.105(a)(4) Withdrawal by Guardian. A non- resident guardian of the estate appointed by a foreign court for a creditor who is a non-resident minor or a non-resident person who is adjudged to be incapacitated may withdraw funds in a court s registry held for the creditor. (SB 626) (b-1) Proof of Bond. Court may require the non-resident guardian to provide proof of adequate bond in the foreign jurisdiction if the court determines that it is in the best interests of the non-resident creditor. (c)(4) Order. The order must direct the court clerk to deliver the money to the creditor s non-resident guardian of the estate.

33 6/11/2025 Associate Judges for GS Proceedings GC 54A.301- 317 Regional Associate Judges. Specialty courts for guardianship and protective services proceedings. The presiding judge of each of the eleven administrative regions of TX could appoint one or more associate judges to preside over new and existing GS cases and protective services proceedings for any regional county that opts in. Associate judges would be lawyers with at least four years of experience in guardianship or protective services proceedings. Associate judges would serve four year terms and be paid from federal, county, or grant funds, and could no longer engage in private law practice. (HB 79)

34 6/11/2025 GS Specialty Courts The administrative judges would determine the host county within a judicial region, and the host county would provide courtroom space and staff for an associate judge. Judges of counties that opt in could refer new or existing guardianship or protective services proceedings to the associate judge. Counties with Statutory Probate Courts would not opt in

35 6/11/2025 GS Specialty Courts Parties would have the current right of de novo appeal to the judge of the court in the county where the proceeding originated. OCA is to assist the presiding administrative judges with the supervision and training of associate judges. OCA is to develop caseload standards for associate judges to ensure adequate staffing.

36 6/11/2025 Visiting Judges & Jury Size GC 25.0006(a-5) & 25.00231(f) Judicial Bonds. A bond or insurance policy obtained by the judge of a statutory county court shall provide the same coverage to a visiting judge assigned to the court or associate judge appointed to serve the court as they provide to the elected or appointed judge. GC 74.141 Defense of Judges. The attorney general shall defend a visiting judge assigned to hear a guardianship matter by the presiding judge of the statutory probate courts if the judge requests the attorney general s assistance in defense of the suit. GC 25.0027 Jury Size. The parties to a proceeding may agree to try a particular case with fewer than 12 jurors even in cases where concurrent jurisdiction exists. (SB 615)

37 6/11/2025 Criminal History of Proposed Guardians GC 155.205b1 Criminal History of Proposed Guardians. OCA shall obtain fingerprint-based criminal history record information of a proposed guardian if the liquid assets of the estate of a ward exceed $50,000 or if the proposed guardian is not a Texas resident. GC 155.205b2 Criminal History of Proposed Guardians. OCA shall obtain name-based criminal history record information of a proposed guardian including former names if the liquid assets of the estate of a ward are less than $50,000 and the proposed guardian is a Texas resident. (SB 615)

38 6/11/2025 OCA Access to Financial Records GC 72.1221 Program Access to Financial Records. Upon request, financial institutions are to provide OCA with a ward s financial records including receipts, records of deposits and withdrawals, invoices and bills for purpose of OCA reviews and audits. OCA may request the court in which the GS is pending to order a financial institution or other person who possesses these records to provide records to OCA. After notice and a hearing, the court may issue an order requiring the bank or other person to provide the records to OCA under the conditions the court prescribes. (SB 692)

39 6/11/2025 Increase Penalties for Financial Abuse Penal Code 32.55 Financial Abuse of Elderly Individuals. A person commits a criminal offense if the person knowingly engages in the financial abuse of an elderly individual 65 or +. Financial abuse is defined as the wrongful taking or assisting in the wrongful takin of money or other property of another person by any means including exerting undue influence. (HB 1156)

40 6/11/2025 Financial Abuse by Fiduciaries Financial abuse means financial exploitation including: the breach of a fiduciary relationship including the misuse of a POA or the abuse of GS powers that results in the unauthorized appropriation, sale or transfer of another person s property or the knowing or intentional failure to effectively use another person s income and assets for the necessities required for the person s support and maintenance. Paid or unpaid caregivers are included as having a relationship of confidence or trust in the definition of financial exploitation

41 6/11/2025 Increased Penalties for Abuse Offenses under this section include: State jail felony if value of property taken is $0 to $499 Third degree felony if value of property taken is $500 to $9,999 Second degree felony if value of property taken is $10,000 to $99,999 First degree felony if value of property taken is $100,000 or more.