ESTATES CODE - Title 3 - SUBTITLE E. ADMINISTRATION OF GUARDIANSHIP

Link to law: http://www.statutes.legis.state.tx.us/Docs/ES/htm/ES.1151.HTM
Published: 2015-07-01

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ESTATES CODE

TITLE 3. GUARDIANSHIP AND RELATED PROCEDURES

SUBTITLE E. ADMINISTRATION OF GUARDIANSHIP

CHAPTER 1151. RIGHTS, POWERS, AND DUTIES UNDER GUARDIANSHIP



SUBCHAPTER A. RIGHTS, POWERS, AND DUTIES IN GENERAL



Sec. 1151.001. RIGHTS AND POWERS RETAINED BY WARD. An incapacitated person for whom a guardian is appointed retains all legal and civil rights and powers except those designated by court order as legal disabilities by virtue of having been specifically granted to the guardian.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



Sec. 1151.002. RIGHTS OF GOOD FAITH PURCHASERS. (a) This section applies only to a guardian who has qualified acting as guardian and in conformity with the law and the guardian's authority.

(b) A guardian's act is valid for all purposes regarding the rights of an innocent purchaser of property of the guardianship estate who purchased the property from the guardian for valuable consideration, in good faith, and without notice of any illegality in the title to the property, regardless of whether the guardian's act or the authority under which the act was performed is subsequently set aside, annulled, or declared invalid.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



Sec. 1151.003. GUARDIAN MAY NOT DISPUTE WARD'S RIGHT TO PROPERTY; EXCEPTION. A guardian, or an heir, executor, administrator, or assignee of a guardian, may not dispute the right of the ward to any property that came into the guardian's possession as guardian of the ward, except property:

(1) that is recovered from the guardian; or

(2) on which there is a personal action pending.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



Sec. 1151.004. POWERS AND DUTIES OF PERSON SERVING AS GUARDIAN OF BOTH PERSON AND ESTATE. The guardian of both the person and the estate of a ward has all the rights and powers and shall perform all the duties of the guardian of the person and the guardian of the estate.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



SUBCHAPTER B. POWERS AND DUTIES OF GUARDIANS RELATING TO CARE OF WARD



This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 39, 84th Legislature, Regular Session, for amendments affecting this section.

Sec. 1151.051. GENERAL POWERS AND DUTIES OF GUARDIANS OF THE PERSON. (a) The guardian of the person of a ward is entitled to take charge of the person of the ward.

(b) The duties of the guardian of the person correspond with the rights of the guardian.

(c) A guardian of the person has:

(1) the right to have physical possession of the ward and to establish the ward's legal domicile;

(2) the duty to provide care, supervision, and protection for the ward;

(3) the duty to provide the ward with clothing, food, medical care, and shelter;

(4) the power to consent to medical, psychiatric, and surgical treatment other than the inpatient psychiatric commitment of the ward;

(5) on application to and order of the court, 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 ward as defined by that section be paid directly to the trust, solely for the purpose of the ward'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 ward if:

(A) the guardian was appointed with full authority over the person of the ward under Section 1101.151; or

(B) the power is specified in the court order appointing the guardian with limited powers over the person of the ward under Section 1101.152.

(d) Notwithstanding Subsection (c)(4), a guardian of the person of a ward has the power to personally transport the ward or to direct the ward's transport by emergency medical services or other means to an inpatient mental health facility for a preliminary examination in accordance with Subchapters A and C, Chapter 573, Health and Safety Code.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 982 (H.B. 2080), Sec. 16, eff. January 1, 2014.



Sec. 1151.052. CARE OF ADULT WARD. (a) The guardian of an adult ward may spend funds of the guardianship as provided by court order to care for and maintain the ward.

(b) The guardian of an adult ward who has decision-making ability may apply on the ward's behalf for residential care and services provided by a public or private facility if the ward agrees to be placed in the facility. The guardian shall report the condition of the ward to the court at regular intervals at least annually, unless the court orders more frequent reports. The guardian shall include in a report of an adult ward who is receiving residential care in a public or private residential care facility a statement as to the necessity for continued care in the facility.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



Sec. 1151.053. COMMITMENT OF WARD. (a) Except as provided by Subsection (b) or (c), a guardian may not voluntarily admit a ward to a public or private inpatient psychiatric facility operated by the Department of State Health Services for care and treatment or to a residential facility operated by the Department of Aging and Disability Services for care and treatment. If care and treatment in a psychiatric or residential facility is necessary, the ward or the ward's guardian may:

(1) apply for services under Section 593.027 or 593.028, Health and Safety Code;

(2) apply to a court to commit the person under Subtitle C or D, Title 7, Health and Safety Code, or Chapter 462, Health and Safety Code; or

(3) transport the ward to an inpatient mental health facility for a preliminary examination in accordance with Subchapters A and C, Chapter 573, Health and Safety Code.

(b) A guardian of a person younger than 18 years of age may voluntarily admit the ward to a public or private inpatient psychiatric facility for care and treatment.

(c) A guardian of a person may voluntarily admit an incapacitated person to a residential care facility for emergency care or respite care under Section 593.027 or 593.028, Health and Safety Code.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.

Amended by:

Acts 2013, 83rd Leg., R.S., Ch. 161 (S.B. 1093), Sec. 6.040, eff. January 1, 2014.



Sec. 1151.054. ADMINISTRATION OF MEDICATION. (a) In this section, "psychoactive medication" has the meaning assigned by Section 574.101, Health and Safety Code.

(b) The guardian of the person of a ward who is not a minor and who is under a protective custody order as provided by Subchapter B, Chapter 574, Health and Safety Code, may consent to the administration of psychoactive medication as prescribed by the ward's treating physician regardless of the ward's expressed preferences regarding treatment with psychoactive medication.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



SUBCHAPTER C. GENERAL POWERS AND DUTIES OF GUARDIANS OF THE ESTATE



Sec. 1151.101. GENERAL POWERS AND DUTIES. (a) Subject to Subsection (b), the guardian of the estate of a ward is entitled to:

(1) possess and manage all property belonging to the ward;

(2) collect all debts, rentals, or claims that are due to the ward;

(3) enforce all obligations in favor of the ward; and

(4) bring and defend suits by or against the ward.

(b) In the management of a ward's estate, the guardian of the estate is governed by the provisions of this title.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



Sec. 1151.102. EXERCISE OF AUTHORITY UNDER COURT ORDER. (a) The guardian of the estate may renew or extend any obligation owed by or to the ward on application and if authorized by order.

(b) On written application to the court, a guardian of the estate may take an action described by Subsection (c) if:

(1) the guardian considers the action in the best interests of the estate; and

(2) the action is authorized by court order.

(c) A guardian of the estate who complies with Subsection (b) may:

(1) purchase or exchange property;

(2) take a claim or property for the use and benefit of the estate in payment of a debt due or owing to the estate;

(3) compound a bad or doubtful debt due or owing to the estate;

(4) make a compromise or a settlement in relation to property or a claim in dispute or litigation;

(5) compromise or pay in full any secured claim that has been allowed and approved as required by law against the estate by conveying to the holder of the secured claim the real estate or personal property securing the claim:

(A) in full payment, liquidation, and satisfaction of the claim; and

(B) in consideration of cancellation of a note, deed of trust, mortgage, chattel mortgage, or other evidence of a lien that secures the payment of the claim;

(6) abandon worthless or burdensome property and the administration of that property;

(7) purchase a prepaid funeral benefits contract; and

(8) establish a trust in accordance with 42 U.S.C. Section 1396p(d)(4)(B), and direct that the income of the ward as defined by that section be paid directly to the trust, solely for the purpose of the ward's eligibility for medical assistance under Chapter 32, Human Resources Code.

(d) A mortgagee, another secured party, or a trustee may foreclose on property abandoned under Subsection (c)(6) without further court order.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



Sec. 1151.103. EXERCISE OF AUTHORITY WITHOUT COURT ORDER. (a) The guardian of the estate of a ward may, without application to or order of the court:

(1) release a lien on payment at maturity of the debt secured by the lien;

(2) vote stocks by limited or general proxy;

(3) pay calls and assessments;

(4) insure the estate against liability in appropriate cases;

(5) insure estate property against fire, theft, and other hazards; and

(6) pay taxes, court costs, and bond premiums.

(b) A guardian of the estate may apply and obtain a court order if the guardian doubts the propriety of the exercise of any power listed in Subsection (a).

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



Sec. 1151.104. AUTHORITY TO COMMENCE SUITS. (a) The guardian of the estate of a ward appointed in this state may commence a suit for:

(1) the recovery of personal property, debts, or damages; or

(2) title to or possession of land, any right attached to or arising from that land, or injury or damage done.

(b) A judgment in a suit described by Subsection (a) is conclusive, but may be set aside by any person interested for fraud or collusion on the guardian's part.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



Sec. 1151.105. ORDINARY DILIGENCE REQUIRED. (a) If there is a reasonable prospect of collecting the claims or recovering the property, the guardian of the estate shall use ordinary diligence to:

(1) collect all claims and debts due the ward; and

(2) recover possession of all property to which the ward has claim or title.

(b) If the guardian wilfully neglects to use ordinary diligence, the guardian and the sureties on the guardian's bond are liable, on the suit of any person interested in the estate, for the use of the estate, the amount of the claims, or the value of the property that has been lost due to the guardian's neglect.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



SUBCHAPTER D. POSSESSION AND CARE OF WARD'S PROPERTY BY GUARDIAN OF THE ESTATE



Sec. 1151.151. DUTY OF CARE. (a) The guardian of the estate shall take care of and manage the estate as a prudent person would manage the person's own property, except as otherwise provided by this title.

(b) The guardian of the estate shall account for all rents, profits, and revenues that the estate would have produced by prudent management as required by Subsection (a).

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



Sec. 1151.152. POSSESSION OF PERSONAL PROPERTY AND RECORDS. (a) Immediately after receiving letters of guardianship, the guardian of the estate shall collect and take possession of the ward's personal property, record books, title papers, and other business papers.

(b) The guardian of the estate shall deliver the ward's personal property, record books, title papers, and other business papers to a person legally entitled to that property when:

(1) the guardianship has been closed; or

(2) a successor guardian has received letters of guardianship.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



Sec. 1151.153. POSSESSION OF PROPERTY HELD IN COMMON OWNERSHIP. The guardian of the estate is entitled to possession of a ward's property held or owned in common with a part owner in the same manner as another owner in common or joint owner is entitled.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



Sec. 1151.154. ADMINISTRATION OF PARTNERSHIP INTEREST. (a) This section applies only to a general partnership governed by a partnership agreement or articles of partnership that provide that, on the incapacity of a partner, the guardian of the estate of the partner is entitled to the place of the incapacitated partner in the partnership.

(b) If a ward was a partner in a general partnership, the guardian who contracts to come into the partnership is, to the extent allowed by law, liable to a third person only to the extent of:

(1) the incapacitated partner's capital in the partnership; and

(2) the assets of the incapacitated partner's estate that are held by the guardian.

(c) This section does not exonerate a guardian from liability for the guardian's negligence.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



Sec. 1151.155. OPERATION OR RENTAL OF FARM, RANCH, FACTORY, OR OTHER BUSINESS. (a) If the ward owns a farm, ranch, factory, or other business that is not required to be immediately sold for the payment of a debt or other lawful purpose, the guardian of the estate on order of the court shall, as it appears to be in the estate's best interests:

(1) continue to operate, or cause the continued operation of, the farm, ranch, factory, or other business; or

(2) rent the farm, ranch, factory, or other business.

(b) In deciding whether to issue an order under Subsection (a), the court:

(1) shall consider:

(A) the condition of the estate; and

(B) the necessity that may exist for the future sale of the property or business for the payment of a debt, claim, or other lawful expenditure; and

(2) may not extend the time of renting any of the property beyond what appears consistent with the maintenance and education of a ward or the settlement of the ward's estate.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



SUBCHAPTER E. AUTHORITY OF GUARDIAN TO ENGAGE IN CERTAIN BORROWING



Sec. 1151.201. MORTGAGE OR PLEDGE OF ESTATE PROPERTY AUTHORIZED IN CERTAIN CIRCUMSTANCES. (a) Under court order, the guardian may mortgage or pledge any property of a guardianship estate by deed of trust or otherwise as security for an indebtedness when necessary for:

(1) the payment of any ad valorem, income, gift, or transfer tax due from a ward, regardless of whether the tax is assessed by a state, a political subdivision of the state, the federal government, or a foreign country;

(2) the payment of any expense of administration, including amounts necessary for the operation of a business, farm, or ranch owned by the estate;

(3) the payment of any claim allowed and approved, or established by suit, against the ward or the ward's estate;

(4) the renewal and extension of an existing lien;

(5) an improvement or repair to the ward's real estate if:

(A) the real estate is not revenue producing but could be made revenue producing by certain improvements and repairs; or

(B) the revenue from the real estate could be increased by making improvements or repairs to the real estate;

(6) the purchase of a residence for the ward or a dependent of the ward, if the court finds that borrowing money for that purpose is in the ward's best interests; and

(7) funeral expenses of the ward and expenses of the ward's last illness, if the guardianship is kept open after the ward's death.

(b) Under court order, the guardian of the estate may also receive an extension of credit on the ward's behalf that is wholly or partly secured by a lien on real property that is the ward's homestead when necessary to:

(1) make an improvement or repair to the homestead; or

(2) pay for the ward's education or medical expenses.

(c) Proceeds of a home equity loan described by Subsection (b) may be used only for the purposes authorized under Subsection (b) and to pay the outstanding balance of the loan.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



Sec. 1151.202. APPLICATION; ORDER. (a) The guardian of the estate must file a sworn application with the court for authority to:

(1) borrow money for a purpose authorized by Section 1151.201(a) or (b); or

(2) create or extend a lien on estate property as security.

(b) The application must state fully and in detail the circumstances that the guardian of the estate believes make the granting of the authority necessary.

(c) On the filing of an application under Subsection (a), the clerk shall issue and have posted a citation to all interested persons stating the nature of the application and requiring the interested persons to appear and show cause why the application should not be granted.

(d) If the court is satisfied by the evidence presented at the hearing on an application filed under Subsection (a) that it is in the interest of the ward or the ward's estate to borrow money or to extend and renew an existing lien, the court shall issue an order to that effect, setting out the terms of the authority granted.

(e) If a new lien is created on guardianship estate property, the court may require, for the protection of the guardianship estate and the estate's creditors, that the guardian's general bond be increased or an additional bond be given, as for the sale of real property belonging to the estate.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



Sec. 1151.203. TERM OF LOAN OR RENEWAL. The term of a loan or renewal authorized under Section 1151.202 must be for the length of time that the court determines to be in the best interests of the ward or the ward's estate.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



SUBCHAPTER F. GUARDIANS APPOINTED FOR WARD TO RECEIVE GOVERNMENT FUNDS



Sec. 1151.251. POWERS AND DUTIES OF GUARDIAN APPOINTED AS NECESSARY FOR WARD TO RECEIVE GOVERNMENT FUNDS. (a) A guardian of the person for whom it is necessary to have a guardian appointed to receive funds from a governmental source may:

(1) administer only:

(A) the funds received from the governmental source;

(B) all earnings, interest, or profits derived from the funds; and

(C) all property acquired with the funds; and

(2) receive the funds and pay the expenses of administering the guardianship and the expenses for the support, maintenance, or education of the ward or the ward's dependents.

(b) Expenditures under Subsection (a)(2) for the support, maintenance, or education of the ward or the ward's dependents may not exceed $12,000 during any 12-month period without the court's approval.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



Sec. 1151.252. VALIDATION OF CERTAIN PRIOR ACTS OF GUARDIAN. An act performed before September 1, 1993, by a guardian of the estate of a person for whom it is necessary to have a guardian appointed to receive and disburse funds that are due the person from a governmental source is validated if the act was performed in conformance with an order of a court that has venue with respect to the support, maintenance, and education of the ward or the ward's dependents and the investment of surplus funds of the ward under this title and if the validity of the act was not an issue in a probate proceeding or civil lawsuit that was pending on September 1, 1993.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.



SUBCHAPTER G. NOTICE BY GUARDIAN TO DEPARTMENT OF VETERANS AFFAIRS



Sec. 1151.301. NOTICE OF FILING REQUIRED; HEARING DATE. (a) This section applies only to:

(1) a filing by a guardian whose ward is a beneficiary of the Department of Veterans Affairs of:

(A) an annual or other account of funds; or

(B) an application for the expenditure or investment of funds; or

(2) a filing of a claim against the estate of a ward who is a beneficiary of the Department of Veterans Affairs.

(b) The court shall set a date for a hearing of a matter initiated by a filing to which this section applies not earlier than 20 days from the date of the filing.

(c) Not later than the fifth day after the date of a filing to which this section applies, the person who makes the filing shall give notice of the date of the filing by mailing a certified copy of the filing to the office of the Department of Veterans Affairs in whose territory the court is located.

(d) An office of the Department of Veterans Affairs through its attorney may waive the service of notice or the time required for setting a hearing under this section.

Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.