DE JUNIO DEL 2013

§ 641. Defects in Pleading

A court may not invalidate a pleading in a guardianship proceeding or an order based on the pleading based on a defect of form or substance in the pleading, unless the defect has been timely objected to and called to the attention of the court in which the proceeding was or is pending.

Added by Acts 1993, 73rd Leg., ch. 957, § 1, eff. Sept. 1, 1993. Repealed by Acts 2011, 82nd Leg., ch. 823, § 3.02, eff. Jan. 1, 2014. Amended by Acts 2011, 82nd Leg., ch. 1085, § 14, eff. Sept. 1, 2011.

§ 642. Standing to Commence or Contest Proceeding

(a) Except as provided by Subsection (b) of this section, any person has the right to commence any guardianship proceeding, including a proceeding for complete restoration of a ward’s capacity or modification of a ward’s guardianship, or to appear and contest any guardianship proceeding or the appointment of a particular person as guardian.

(b) A person who has an interest that is adverse to a proposed ward or incapacitated person may not:

(1) file an application to create a guardianship for the proposed ward or incapacitated person;

(2) contest the creation of a guardianship for the proposed ward or incapacitated person;

(3) contest the appointment of a person as a guardian of the person or estate, or both, of the proposed ward or incapacitated person; or

(4) contest an application for complete restoration of a ward’s capacity or modification of a ward’s guardianship.

(c) The court shall determine by motion in limine the standing of a person who has an interest that is adverse to a proposed ward or incapacitated person.

Added by Acts 1993, 73rd Leg., ch. 957, § 1, eff. Sept. 1, 1993. Subsec. (c) added by Acts 1995, 74th Leg., ch. 1039, § 20, eff. Sept. 1, 1995; Subsecs. (a), (b) amended by Acts 1999, 76th Leg., ch. 829, § 2, eff. Sept. 1, 1999.

Repealed by Acts 2011, 82nd Leg., ch. 823, § 3.02, eff. Jan. 1, 2014.

§ 643. Trial by Jury

A party in a contested guardianship proceeding is entitled, on request, to a jury trial.

Added by Acts 1993, 73rd Leg., ch. 957, § 1, eff. Sept. 1, 1993. Repealed by Acts 2011, 82nd Leg., ch. 823, § 3.02, eff. Jan. 1, 2014.

§ 644. Hearing by Submission

(a) A court may consider by submission a motion or application filed under this chapter unless the proceeding is:

(1) contested; or

(2) an application for the appointment of a guardian.

(b) The burden of proof at a hearing on a motion or application that is being considered by the court on submission is on the party who is seeking relief under the motion or application.

(c) The court may consider a person’s failure to file a response to a motion or application that may be considered on submission as a representation that the person does not oppose the motion or application.

(d) A person’s request for oral argument is not a response to a motion or application under this section.

(e) The court, on its own motion, may order oral argument on a motion or application that may be considered by submission.

Added by Acts 1993, 73rd Leg., ch. 957, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 1039, § 21, eff. Sept. 1, 1995. Repealed by Acts 2011, 82nd Leg., ch. 823, § 3.02, eff. Jan. 1, 2014.

§ 645. Guardians Ad Litem

(a) The judge may appoint a guardian ad litem to represent the interests of an incapacitated person in a guardianship proceeding.

(b) A guardian ad litem is entitled to reasonable compensation for services in the amount set by the court to be taxed as costs in the proceeding.

(c) A guardian ad litem is an officer of the court. The guardian ad litem shall protect the incapacitated person in a manner that will enable the court to determine what action will be in the best interests of the incapacitated person.

(d) If a guardian ad litem is appointed under Section 681(4) of this code, the fees and expenses of the guardian ad litem are costs of the litigation proceeding that made the appointment necessary.

(e) In the interest of judicial economy, the court may appoint as guardian ad litem under Section 681(4) of this code the person who has been appointed attorney ad litem under Section 646 of this code or the person who is serving as an ad litem for the benefit of the ward in any other proceeding.

(f) The term of appointment of a guardian ad litem made in a proceeding for the appointment of a guardian

expires, without a court order, on the date the court either appoints a guardian or denies the application for appointment of a guardian, unless the court determines that the continued appointment of the guardian ad litem is in the ward’s best interest.

Added by Acts 1993, 73rd Leg., ch. 957, § 1, eff. Sept. 1, 1993. Subsec. (f) added by Acts 2007, 80th Leg., ch. 614, § 1, eff. Sept. 1, 2007. Repealed by Acts 2011, 82nd Leg., ch. 823, § 3.02, eff. Jan. 1, 2014.

§ 645A. Immunity

(a) A guardian ad litem appointed under Section 645, 683, or 694A of this code to represent the interests of an incapacitated person in a guardianship proceeding involving the creation, modification, or termination of a guardianship is not liable for civil damages arising from a recommendation made or an opinion given in the capacity of guardian ad litem.

(b) Subsection (a) of this section does not apply to a recommendation or opinion that is:

(1) wilfully wrongful;

(2) given with conscious indifference or reckless disregard to the safety of another;

(3) given in bad faith or with malice; or (4) grossly negligent.

Added by Acts 2003, 78th Leg., ch. 622, § 1, eff. Sept. 1, 2003. Repealed by Acts 2011, 82nd Leg., ch. 823, § 3.02, eff. Jan. 1, 2014.

§ 646. Appointment of Attorney ad Litem and Interpreter

(a) In a proceeding under this chapter for the appointment of a guardian, the court shall appoint an attorney ad litem to represent the interests of the proposed ward. The attorney shall be supplied with copies of all of the current records in the case and may have access to all of the proposed ward’s relevant medical, psychological, and intellectual testing records.

(b) To be eligible for appointment as an attorney ad litem, a person must have the certification required by Section 647A of this code.

(c) A person whose certificate has expired must obtain a new certificate to be eligible for appointment as an attorney ad litem.

(d) At the time of the appointment of the attorney ad litem, the court shall also appoint a language interpreter or a sign interpreter if necessary to ensure effective communication between the proposed ward and the attorney.

(e) The term of appointment of an attorney ad litem appointed under this section expires, without a court order, on the date the court appoints a guardian in accordance with Section 693 of this code, appoints a successor guardian, or denies the application for appointment of a guardian, unless the court determines that the continued appointment of the attorney ad litem is in the ward’s best interest.

(f) The term of appointment of an attorney ad litem appointed under this section continues after the court

appoints a temporary guardian under Section 875 of this code unless a court order provides for the termination or expiration of the attorney ad litem’s appointment.

Added by Acts 1993, 73rd Leg., ch. 957, § 1, eff. Sept. 1, 1993. Subsecs. (b) to (d) amended by Acts 1995, 74th Leg., ch. 1039, § 22, eff. Sept. 1, 1995; Subsec. (e) repealed by Acts 1995, 74th Leg., ch. 1039, § 74, eff. Sept. 1, 1995; Subsec. (a) amended by Acts 1999, 76th Leg., ch. 379, § 4, eff. Sept. 1, 1999. Amended by Acts 1999, 76th Leg., ch. 716, § 1, eff. Sept. 1, 1999. Subsec. (e) added by Acts 2007, 80th Leg., ch. 614, § 2, eff. Sept. 1, 2007. Repealed by Acts 2011, 82nd Leg., ch. 823, § 3.02, eff. Jan. 1, 2014. Amended by Acts 2011, 82nd Leg., ch. 1085, § 15, eff. Sept. 1, 2011.

§ 646A. Representation of Ward or Proposed Ward by Attorney

(a) The following persons may at any time retain an attorney who holds a certificate required by Section 647A of this code to represent the person’s interests in a guardianship matter instead of having those interests represented by an attorney ad litem appointed under Section 646 of this code or another provision of this chapter:

(1) a ward who retains the power to enter into a contract under the terms of the guardianship, subject to Section 694K of this code; and

(2) a proposed ward for purposes of a proceeding for the appointment of a guardian as long as the proposed ward has capacity to contract. (b) If the court finds that the ward or the proposed ward has capacity to contract, the court may remove an attorney ad litem appointed under Section 646 of this code or any other provision of this chapter that requires the court to appoint an attorney ad litem to represent the interests of a ward or proposed ward and appoint a ward or a proposed ward’s retained counsel.

Added by Acts 2011, 82nd Leg., ch. 599, § 7, eff. Sept. 1, 2011.

§ 647. Duties of Attorney Ad Litem

(a) An attorney ad litem appointed under Section 646 of this code to represent a proposed ward shall, within a reasonable time before the hearing, interview the proposed ward. To the greatest extent possible, the attorney shall discuss with the proposed ward the law and facts of the case, the proposed ward’s legal options regarding disposition of the case, and the grounds on which guardianship is sought.

(b) Before the hearing, the attorney shall review the application for guardianship, certificates of current physical, medical, and intellectual examinations, and all of the proposed ward’s relevant medical, psychological, and intellectual testing records.

Added by Acts 1993, 73rd Leg., ch. 957, § 1, eff. Sept. 1, 1993. Repealed by Acts 2011, 82nd Leg., ch. 823, § 3.02, eff. Jan. 1, 2014.

§ 647A. Certification Requirement for Certain Court-Appointed Attorneys

(a) A court-appointed attorney in any guardianship proceeding must be certified by the State Bar of Texas or a person or other entity designated by the state bar as having successfully completed a course of study in guardianship law and procedure sponsored by the state bar or its designee.

(b) For certification under this section, the state bar shall require three hours of credit.

(c) Except as provided by Subsection (e) of this section, a certificate issued under this section expires on the second anniversary of the date the certificate is issued.

(d) To be eligible to be appointed by a court to represent a person at a guardianship proceeding, an attorney whose certificate has expired must obtain a new certificate.

(e) A new certificate obtained by a person who previously has been issued a certificate under this section expires on the fourth anniversary of the date the new certificate is issued if the person has been certified each of the four years immediately preceding the date the new certificate is issued.

Added by Acts 1999, 76th Leg., ch. 716, § 2, eff. Sept. 1, 1999. Repealed by Acts 2011, 82nd Leg., ch. 823, § 3.02, eff. Jan. 1, 2014.

§ 648. Court Visitor Program

(a) Each statutory probate court shall operate a court visitor program to assess the conditions of wards and proposed wards. Another court that has jurisdiction over a guardianship proceeding may operate a court visitor program in accordance with the population needs and financial abilities of the jurisdiction. A court that operates a court visitor program shall use persons willing to serve without compensation to the greatest extent possible.

(b) On request by any interested person, including a ward or proposed ward, or on its own motion, and at any time before the appointment of a guardian or during the pendency of a guardianship of the person or estate, a court may appoint a court visitor to evaluate the ward or proposed ward and provide a written report that substantially complies with Subsection (c) of this section.

(c) A court visitor’s report must include:

(1) a description of the nature and degree of capacity and incapacity of the ward or proposed ward, including the medical history of the ward or proposed ward, if reasonably available and not waived by the court;

(2) a medical prognosis and a list of the treating physicians of the ward or proposed ward, when appropriate;

(3) a description of the living conditions and circumstances of the ward or proposed ward;

(4) a description of the social, intellectual, physical, and educational condition of the ward or proposed ward;

(5) a statement that the court visitor has personally visited or observed the ward or proposed ward;

(6) a statement of the date of the most recent visit by the guardian, if one has been appointed;

(7) a recommendation as to any modifications needed in the guardianship or proposed guardianship, including removal or denial of the guardianship; and

(8) any other information required by the court. (d) The court visitor shall file the report not later than the 14th day after the date of the evaluation conducted by the court visitor, and the court visitor making the report must swear, under penalty of perjury, to its accuracy to the best of the court visitor’s knowledge and belief.

(e) A court visitor who has not expressed a willingness to serve without compensation is entitled to reasonable compensation for services in an amount set by the court and to be taxed as costs in the proceeding.

(f) This section does not apply to a guardianship that is created only because it is necessary for a person to have a guardian appointed to receive funds from a governmental source.

Added by Acts 1993, 73rd Leg., ch. 957, § 1, eff. Sept. 1, 1993. Subsec. (f) added by Acts 1995, 74th Leg., ch. 1039, § 23, eff. Sept. 1, 1995. Repealed by Acts 2011, 82nd Leg., ch. 823, § 3.02, eff. Jan. 1, 2014.

§ 648A. Duties of Court Investigator

(a) On the filing of an application for guardianship under Section 682 of this code, a court investigator shall investigate the circumstances alleged in the application to determine whether a less restrictive alternative than guardianship is appropriate.

(b) A court investigator shall:

(1) supervise the court visitor program established under Section 648 of this code and in that capacity serve as the chief court visitor;

(2) investigate a complaint received from any person about a guardianship and report to the judge, if necessary; and

(3) perform other duties as assigned by the judge or required by this code.

(c) After making an investigation under Subsection (a) or (b) of this section, a court investigator shall file with the court a report of the court investigator’s findings and conclusions. Disclosure to a jury of the contents of a court investigator’s report is subject to the Texas Rules of Civil Evidence. In a contested case, the court investigator shall provide copies of the report to the attorneys for the parties before the earlier of:

(1) the seventh day after the day the report is completed; or

(2) the 10th day before the day the trial is scheduled to begin.

(d) Nothing in this section supersedes any duty or obligation of another to report or investigate abuse or neglect under any statute of this state.

Added by Acts 1995, 74th Leg., ch. 1039, § 24, eff. Sept. 1, 1995. Subsec. (b) amended by Acts 1999, 76th Leg., ch. 829, § 3, eff. Sept. 1, 1999. Repealed by Acts 2011, 82nd Leg., ch. 823, § 3.02, eff. Jan. 1, 2014.

§ 649. Evidence

In a guardianship proceeding, the rules relating to witnesses and evidence that govern in the district court apply as far as practicable. If there is no opposing party or attorney of record on whom to serve notice and copies of interrogatories, service may be had by posting notice of the intention to take depositions for a period of 10 days as provided by this chapter in the provisions governing a posting of notice. When notice by posting under this section is filed with the clerk, a copy of the interrogatories shall also be filed. At the expiration of the 10-day period, commission may issue for taking the depositions and the judge may file cross-interrogatories if no person appears.

Added by Acts 1993, 73rd Leg., ch. 957, § 1, eff. Sept. 1, 1993. Repealed by Acts 2011, 82nd Leg., ch. 823, § 3.02, eff. Jan. 1, 2014.

§ 650. Decrees

A decision, order, decree, or judgment of the court in a guardianship proceeding must be rendered in open court, except in a case in which it is otherwise expressly provided.

Added by Acts 1993, 73rd Leg., ch. 957, § 1, eff. Sept. 1, 1993. Amended by Acts 2009, 81st _{Leg., ch. 602, § 15,} eff. June 19, 2009. Repealed by Acts 2011, 82nd Leg., ch. 823, § 3.02, eff. Jan. 1, 2014. Amended by Acts 2011, 82nd Leg., ch. 1085, § 16, eff. Sept. 1, 2011.

§ 651. Enforcement of Orders

The judge may enforce obedience to an order entered against a guardian by attachment and imprisonment. An imprisonment of a guardian may not exceed three days for any one offense, unless expressly provided otherwise in this chapter.

Added by Acts 1993, 73rd Leg., ch. 957, § 1, eff. Sept. 1, 1993. Repealed by Acts 2011, 82nd Leg., ch. 823, § 3.02, eff. Jan. 1, 2014.

§ 652. Location of Hearing

(a) Except as provided by Subsection (b) of this section, the judge may hold a hearing on a guardianship matter involving an adult ward or adult proposed ward at any suitable location in the county in which the guardianship matter is pending. The hearing should be held in a physical setting that is not likely to have a harmful effect on the ward or proposed ward.

(b) On the request of the adult proposed ward, the adult ward, or the attorney of the proposed ward or ward, the hearing may not be held under the authority of this section at a place other than the courthouse.

Added by Acts 2011, 82nd Leg., ch. 1085, § 17, eff. Sept. 1, 2011.