Probate Proceedings Why Can t They All Just Get Along?

Transcription

1 Probate Proceedings Why Can t They All Just Get Along? Susan M. Redford Judicial Program Manager Texas Association of Counties susanr@county.org (432)

2 Dynamics of the Family in Probate WE CAN DO THIS THE EASY WAY OR THE HARD WAY

3 The Choice Seems Simple.

4 Testate Succession Independent Administration of the Estate Tex. Estates Code Ch Can use when: a. Independent executor named in the will and states to be independent administration b. Executor is named in will, but will does not provide for independent administration and: (1) all the distributees agree to independent administration; and (2) the distributees collectively designate the named executor to serve independently c. No executor is named in will or named executor(s) is/are unable to serve and: (1) all distributees agree; and (2) the distributees collectively designate a qualified person to serve as Independent Administrator c. The decedent dies intestate, and all the distributes: (1) agree that an independent administration is advisable; and (2) collectively designate a qualified person to serve as Independent Administrator

5 Special Considerations Before appointing an independent executor or an administrator, the court must ensure that: a. all of the distributees seek independent administration; and b. in the intestacy context, the court must receive clear and convincing evidence from the parties seeking the appointment that they constitute all of the decedent s heirs through an heirship determination. NOTE: The court shall require the appointed independent executor or administrator to obtain a bond unless the bond requirement is waived in the will or waived by the court.

6 Procedure for Independent Administration 1. Application filed a. Application to Probate Will and to Authorize Letters Testamentary b. Application for Independent Administration and to Authorize Letters Testamentary 2. Notice issued (Tex. Estates Code Secs )

7 Procedures for Independent Administration 3. Hearing a. Proof of Death and Other Facts b. Order c. Oath (1) within 21 days of date order signed; Tex. Estates Code Sec d. Bond (1) if applicable (2) within 21 days of date order signed; Tex. Estates Code Sec (a) (3) Court must act promptly to review and approve bond; Tex. Estates Code Sec

8 Procedures for Independent Administration 4. Inventory, Appraisement and List of Claims a. must be filed within 90 days of the court granting letters b. must be verified by sworn affidavit c. failure of executor or administrator to file is ground for removal d. can file Affidavit in Lieu of Inventory, Appraisement and List of Claims if no unpaid debts other than secured debts, taxes and administration costs. (Tex. Estates Code Sec )

9 Procedures for Independent Administration 5. Claims of Creditors a. Notice to General Creditors must be given within 30 days after letters granted (Tex. Estates Code Sec ) (1) publish notice in newspaper printed in the county where letters granted (2) send notice to the comptroller of public accounts by certified or registered mail as to whether the decedent remitted or should have remitted taxes administered by the comptroller of public accounts b. Notice to Known Secured Creditors - must be given within 60 days after letters granted (Tex. Estates Code Sec ) (1) notice by registered or certified mail, return receipt requested to each secured creditor (2) file proof of the notices with the court c. Notice of Unsecured Creditors may give notice to present claim within 121 days of receipt of notice (Tex. Estates Code Sec ) (1) registered or certified mail, return receipt requested (2) claim barred if not made before specified deadline

10 Procedures for Independent Administration 6. Closing Independent Administration a. By Closing Report verified by affidavit to the following: (1) the property of the estate that came into the possession of the independent executor; (2) the debts that have been paid; (3) the debts, if any, still owing by the estate; (4) the property of the estate, if any, remaining on hand after payment of debts; and (5) the names and residences of the person to whom the property of the estate was distributed. (Must include signed receipts from the distributees) ***Filing automatically releases sureties of bond, if any b. By Notice of Closing Estate (an alternative since 9/1/11) verified by affidavit that: (1) all debts know to exist against the estate have been paid; (2) all remaining assets have been distributed; (3) the names and addresses of the distributees to whom the property of the estate, if any remaining after payment of debts, has been distributed; and (4) all distributees have received a copy of the Notice of Closing Estate ***Sureties of bond not released until after 30 day waiting period and no objections The Independent Administration of an estate is considered closed 30 days after the filing of a closing report or notice.

11 Procedure to Declare Heirship Application to Declare Heirship used to: Determine the decedent s heirs for purposes of distributing property when decedent dies with a will and property was not disposed of by the will or property was omitted from an earlier administration (Tex. Estates Code Secs ) Determine the decedent s heirs for purposes of distributing property when the decedent owns real or personal property in Texas and dies without a will and there has been no administration of the estate Determine decedent s heirs by the trustee of a trust held for the benefit of the decedent Identify all of decedent s heirs for purposes of appointing an independent executor or independent administrator to serve in an independent administration when: (1) Decedent dies with a will but does not provide for independent administration and all distributees agree to independent administration; (2) Decedent dies with a will that does not name an executor or named executor cannot serve; or (3) Decedent dies without a will and all distributees agree that an independent administration is advisable NOTE Effective January 1, 2014 there is no statute of limitations for heirship proceedings

12 Procedure to Declare Heirship 1. Application (Tex. Estates Code Sec ) a. each applicant must sign an affidavit stating that all information is true and no material fact has been omitted b. all unknown heirs, persons named in the application and any person on record as owning a share of the real property are parties to the proceeding 2. Notice person filing application must file an affidavit stating name of each person served and the name of each person who waived service. a. citation must be served by registered certified mail on distributees whose names and addresses are known (court can required personal service) b. citation by publication required for unknown distributees and distributees whose address is unknown (must be in county where proceedings pending and county where decedent last resided, if different) c. except when there is service by publication, citation must be posted in county where proceedings commenced and in county of the decedent s last residence (Tex. Estates Code Sec ) d. applicants do not have to be served

13 Procedure to Declare Heirship 3. Hearing a. testimony must be taken in open court b. court shall appoint attorney ad litem to represent the interest of the heirs whose names or whereabouts are unknown, may also expand to incapacitated heirs c. statement of facts must be submitted for each witness who will testify to family history (Tex. Estates Code Sec ) 4. Judgment a. must declare the names and places of residence of the heirs of the decent and their respective shares and interests in the real and personal property of the decedent (Tex. Estates Code Sec ) b. any omitted heir or heir who was not served with notice has 4 years to have the judgment corrected by a bill of review unless actual fraud proven, then no limitation c. certified copy of judgment may be recorded and act as constructive notice of the judgment (Tex. Estates Code Sec )

14 Muniment of Title Court may probate will as muniment of title when: Court determines that the will should be admitted to probate; and The court is satisfied that: (1) there are no unpaid debts, excluding debts secured by liens on real property; and (2) there is no need for administration (Tex. Estates Code Sec ) The order administering a will to probate as a muniment of title acts as legal authority to pay or transfer assets/debts of the estate

15 Muniment of Title 1. Application (Tex. Estates Code Sec ) a. will and any codicils must be attached b. if more than 4 years has elapsed since death, must indicate notice has been served on each heir whose address can be reasonably ascertained 2. Hearing (Tex. Estates Code Sec ) a. Order ends court s involvement in the estate and serves as notice to subsequent purchasers 3. Closing Affidavit (Tex. Estates Code Sec ) a. May be waived by Court b. Filed within 180 days stating terms of will have been fulfilled and any terms that have not been fulfilled

16 Administration with Dependent Executor o The procedure used when administration is necessary for the estate, but the will fails to provide for independent administration (Tex. Estates Code Secs ) o Executor is required to obtain court approval in advance of taking action

17 Administration with Dependent Executor 1. Application for Probate of Will and Issuance of Letters Testamentary 2. Notice same as Independent Administration 3. Hearing a. testimony in open court; or b. if witness unavailable, may be taken by deposition on written questions (Tex. Estates Code Sec ) c. order (Tex. Estates Code Sec ) (1) must state powers requiring court approval (2) grants executor the power to perform certain acts without court approve a. Oath within 21 days after order b. Bond required unless will states no bond (1) may be surety bond; or (2) deposit of cash or securities

18 Administration with Dependent Executor 4. Inventory, Appraisement and List of Claims a. must be filed within 90 days of letters b. court may grant extension c. court can remove executor and levy a fine of $1,000 plus all damages and costs sustained by failure to file 5. Sale of Real or Personal Property a. the sale of real property requires a court order (Tex. Estates Code Sec ) b. executor can apply to sale real property after court has approved the inventory c. Citation (personal and by posting) must be made to all interested persons (Tex. Estates Code Sec ) d. After Order issues, executor can enter into an agreement or contract to sell e. Report of Sale must be made within 30 days after the sale court holds for 5 days then can sign the Decree of Sale

19 Administration with Dependent Executor 6. Claims of Creditors same as Independent Administration a. notice to general creditors b. notice to known secured creditors c. notice to unsecured creditors 7. Annual Account (Tex. Estates Code Sec ) a. must be filed annually b. must be under oath c. must be supported by proof of cash, securities or other assets held in safekeeping d. remains on file for 10 days before court can consider e. approval of the account authorizes the personal representative to pay the approved claims and expenses set forth in the annual account.

20 Administration with Dependent Executor 8. Final Account a. the administration of the estate must be settled and closed when all known debts have been paid (or they have been paid as far as assets remaining on hand will permit) and there is no further need for administration (Tex. Estates Code Sec ) b. court may remove executor who has failed to make a final settlement within three years c. final account must include: (1) a verification of funds on deposit; (2) confirmation of safekeeping; and (3) a proposed order approving the account for final settlement and authorizing the distribution of the estate d. citation by posting required; court can require additional notice (Tex. Estates Code Sec )

21 Administration with Dependent Executor 9. Closing the Estate a. after all the property has been distributed and receipts from beneficiaries have been filed with the clerk, the executor must file: (1) an Application to Close Estate and to Discharge Personal Representative; and (2) a proposed Order Closing Estate and Discharging Personal Representative (Tex. Estates Code Sec ) ***The court s order releases the sureties

22 Administration with Will Annexed Used when an administration is necessary for the estate of a person with a will that: a. fails to name an executor; b. names an executor who is deceased or unable to serve; or c. names an executor who, while acting as such, dies, resigns or is removed (Tex. Estates Code Sec ) o The person appointed by the court is an administrator and receives letters of administration omay be independent if all distributees agree

23 Administration with Will Annexed 1. Application for Probate of Will and the Issuance of Letters of administration with Will Annexed. 2. Notice 3. Hearing (proceed in same manner as dependent administration) a. same proof as required to probate a will; and b. proof of necessity to administer the estate c. must name persons with higher priority who have waived their right to serve. (Tex. Estates Code Sec ) 4. Remainder of proceeding is same as dependent administration

24 Intestate Succession 1. Independent Administration 2. Small Estates a. Small Estate Affidavit b. Order of No Administration 3. Temporary Dependent Administration 4. Dependent Administration

25 Intestate Independent Administration Can be used when: a. decedent dies without a will; b. all distributees agree to independent administration; and c. distributees collectively designate a qualified person (Tex. Estates Code Sec )

26 Intestate Independent Administration 1. Application process a. Application to Declare Heirship heirs must be determined prior to appointment of independent administrator (Tex. Estates Code Sec (b)) b. Application to Appoint Independent Administrator and Issue Letters of Administration 2. Notice same as with will 3. Hearing and other actions same as with a will, except letters of Administration are issued

27 Intestate Small Estate To qualify as a small estate, the following requirements must be met: a. a decedent s non exempt assets must exceed the known liabilities of the estate, and the value of the nonexempt assets must not exceed $50,000; b. no petition for the appointment of a personal representative is pending or has been granted; and c. the decedent has been dead for thirty days. (Tex. Estates Code Sec )

28 Intestate Small Estate Affidavit 1. Affidavit prepared by distributees and must include: a. all assets of the estate; b. all liabilities of the estate; c. names and addresses of distributees; d. an explanation of their right to receive the money or property of the estate. (Tex. Estates Code Sec ); and e. every distributee must sign the affidavit NOTE: title to homestead is the only real property in the estate that may be transferred by affidavit (Tex. Estates Code Sec )

29 Intestate Small Estate Affidavit 2. Applicant files the Small Estate Affidavit must include a. all distributees with legal capacity; b. the natural guardian or next of kin of any minor or the guardian of any other incapacitated person who is a distributee; and c. two disinterested witnesses (Tex. Estates Code Sec ) 3. Order a. can be signed by the judge with or without a hearing b. recorded in the Small Estates records of the county clerk s office (Tex. Estates Code Sec ) c. if transferring homestead, must be filed in the deed records of the county where the homestead is located. (Tex. Estates Code Sec ) d. distributees provide certified copy of the order to each debtor of the estate or person having custody of property of the estate 4. Receipts a. Applicant must collect receipts from each distributee b. Receipts are filed with the clerk

30 Intestate Order of No Administration Can be used when: a. decedent is survived by a spouse, minor child, or adult incapacitated child; and b. the value of the estate, not including homestead and exempt property, does not exceed the family allowance. (Tex. Estates Code Sec. 451) Administration not necessary because there would be no property for the decedent s creditors or will beneficiaries to reach

31 Intestate Order of No Administration 1. Application for Family Allowance and Order of No Administration a. can be filed in any court in which venue is proper; or b. in the court where an application for the appointment of a personal representative has been filed but not yet granted (Tex. Estates Code Sec (b)) c. the application must: (1) state the names of the heirs or devisees; (2) list, to the extent known, estate creditors with the amounts of the claims; (3) describe all property belonging to the estate, including estimated value and any liens or encumbrances; and (4) request that a family allowance be granted and if allowance exceeds value of estate excluding exempt and homestead property, the assets of the entire estate be set aside for the surviving spouse, minor children and adult incapacitated children

32 Intestate Order of No Administration 2. Order a. no notice requirement for hearing but court can order it (Tex. Estates Code Sec ) b. court grants application and signs order granting family allowance and finds no necessity for an administration c. order serves as legal authority to collect any debts or assets of the estate for the purpose of the family allowance.

33 Temporary Dependent Administration ocan be used with or without a will otemporary administrator appointed immediately and without notice (Tex. Estates Code Sec ) Temporary administrator has limited powers based on the circumstances of the case Length of appointment may not exceed 180 days Examples: perishable property that must be sold or disposed of immediately, continued operation of decedent s business, or to file a lawsuit before the statute of limitations expires Can be appointed when there is a will contest or contest regarding appointment of an administrator (Tex. Estates Code Sec ) Acts of temporary administrator that are not authorized by the court are void.

34 Temporary Dependent Administration 1. Application for Temporary Administration must: a. indicate name, address and interest of the applicant; b. describe reasons why a temporary administration is necessary; c. list the powers and duties requested; and d. describe the real and personal property believed to be in the estate (Tex. Estates Code Sec )

35 Temporary Dependent Administration 2. Hearing a. Notice not required before hearing b. Order (1) designate the period of the administration; (2) define the powers of the administrator; and (3) establish the amount of the bond c. Bond (1) must sufficiently cover assets of the estate (2) filed no later than the 3 rd business day after the order of appointment d. Oath 3. Letters of Temporary Administration (1) must be issued within 3 days after administrator qualifies (bond and oath on file) (2) clerk must post notice of appointment on day letters are issued (Tex. Estates Code Sec ) (3) temporary administrator must notify all know heirs of appointment by certified mail on day letters are issued advising them of 15 day period to contest (4) if an interested person requests a hearing, must be held within 10 days after request was made. (Tex. Estates Code Sec )

36 Temporary Dependent Administration 4. Application for Enlargement of Powers of Temporary Administrator a. can be granted without a hearing b. Bond may be adjusted to reflect additional duties 5. Can be made permanent at the end of the specified period by submitting an Order Making Temporary Administration Permanent a. court may approve without a hearing and adjust bond if necessary b. new oath required c. new bond required if amount adjusted d. additional citation not necessary

37 Temporary Dependent Administration 6. Closing the Temporary Administration a. Final account (1) Must include: a. list of all property that has come into hands of administrator; b. a return of all sales made; c. accounting of all other actions taken; and d. a description of all remaining property (2) Application and Order Closing Temporary Administration a. filed after property distributed b. does not require a hearing c. order releases sureties from further liability

38 Intestate Dependent Administration Procedure is used when: a. there is no will; b. there are two or more debts; c. there is a need for administration; and d. none of the other procedures can be used

39 Intestate Dependent Administration 1. Application for Letters of Administration 2. Notice same as with a will 3. Hearing a. same proof as required with a will b. sworn testimony required (1) taken in open court; or (2) by deposition on written questions c. must prove persons with higher priority have waived right to serve

40 Intestate Dependent Administration 4. Court s Order(s) a. Order Authorizing Letters of Administration (1) powers requiring court approval a. purchase or exchange of property; b. pay and receive claims for/against estate; c. settle claims, disputes or litigation; and d. compromise or pay any legally sufficient secured claim (Tex. Estates Code Sec ) (2) powers not requiring court approval a. release liens after payment of secured debts; b. vote stock proxies; c. pay calls and assessments; d. insure the estate; and e. pay taxes, court costs and bond premiums (Tex. Estates Code Sec ) b. Order Appointing a Registered Agent

41 Intestate Dependent Administration 5. Oath within 21 days after date of order 6. Bond a. required unless administrator is a corporate fiduciary b. must be filed within 21 days of the order c. can be surety or deposit of cash or securities 7. Inventory, appraisement and List of Claims same as with will

42 Intestate Dependent Administration 5. Sale of real property a. citation by posting required specifying time period to object b. hearing not required if no objection c. court issues Order for Sale of Real Property d. within 30 days after the sale, administrator must file Report of Sale of Real Property e. after on file for 5 days, Court signs Decree Confirming Sale 6. Sale of personal property follow same process as real property

43 Intestate Dependent Administration 7. Allowances a. Family allowance (Tex. Estates Code Sec ) (1) court may set for support of surviving spouse, minor children and adult incapacitated children (2) allowance should be sufficient to cover costs to maintain family in similar fashion to which accustomed for one year (3) court signs order fixing amount and method of payment b. Allowance in lieu of exempt property (Tex. Estates Code Sec ) (1) maximum allowance is $45,000 for homestead and $30,000 for other personal exempt property (2) administrator must file an Application for Allowance in Lieu of Exempt Property (3) if proper, court signs order permitting the allowance

44 Intestate Dependent Administration 8. Claims of Creditors same process as with a will (Texas Estates Code Sec ) 9. Annual Account (Texas Estates Code Secs ) a. remains on file with Clerk for 10 days b. court can sign without hearing if proper proof is attached 10. Application to Determine Heirship a. must be filed when administrator is ready to close the estate b. gives administrator authority to make final distribution to proper distributees c. court grants judgment

45 Intestate Dependent Administration 11. Final Account a. after all debts have been paid and Judgment Declaring Heirship issued b. notice generally by posting unless court directs otherwise c. verified d. must state all inheritance taxes have been paid e. estate distributed after court grants 12. Application to Close Estate and Discharge Personal Representative a. can be approved without a hearing b. order releases sureties from further liability

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49 Mental Health ARTICLE I. Bill of Rights. Sec. 15. Right of Trial by Jury. Right of trial by jury shall remain inviolate Exception: the Legislature may provide for temporary mental health commitments (90 days or less) without the necessity of a jury trial

50 Mental Health & the Texas Constitution ARTICLE I. Bill of Rights. Sec. 15 a. Commitment of Persons of Unsound Mind. Competent medical or psychiatric testimony required When there are no criminal charges, Legislature may provide for waiver of jury trial, if agreed to by the person under inquiry, or his next of kin, and an appointed attorney ad litem

51 Mental Health & Texas Statutes Mental health commitments are governed by statutory law, not common law Most of the civil commitment statutes are in Texas Health & Safety Code Chapters , a/k/a Texas Mental Health Code Statutory provisions for those under criminal court jurisdiction are in Articles & of the Texas Code of Criminal Procedure

52 Definitions: Mental Illness An illness, disease, or condition that either 1. substantially impairs a person s thought, perception of reality, emotional process, or judgment or 2. grossly impairs behavior as demonstrated by recent disturbed behavior Does not include person suffering from epilepsy, senility, alcoholism, or mental deficiency but person who suffers from a mental illness along with another condition is still subject to commitment

53 Three Steps of Involuntary Commitment 1. Emergency detention 2. Protective custody 3. Commitment

54 1. Emergency Detention Emergency Detention without a Warrant The Code requires an officer to have sufficient reason to believe that 1. a person is mentally ill, and 2. because of such illness, there is substantial risk of serious harm to self or others unless the person is immediately restrained And there is no time to secure a warrant

55 1. Emergency Detention Emergency Detention with a Warrant Same criteria, but there is time to secure a warrant Is there ever time to secure a warrant if there is a substantial risk of serious harm to self or others unless the person is immediately restrained?

56 NO

57 1. Emergency Detention Period What s next after the detention? Person taken to inpatient mental health facility Physician must conduct preliminary exam as soon as possible within 12 hours of apprehension Based on exam and physician s written statement person is admitted or is released, as required by statute No person may be detained at facility more than 48 hours unless written order for further detention (with statutory weekend and holiday extension)

58 1. Emergency Detention Period What s next if patient admitted after exam? Physician must complete a sworn Certificate of Medical Examination (CME) that the physician believes the person is commitable and meets criteria for further detention Application for Court Ordered Mental Health Services must be filed along with the CME County Attorney determines whether facts in CME support filing a Motion for Order of Protective Custody (release if not) If Motion filed, Judge of Court with mental health jurisdiction (or the judge s designated magistrate) decides whether to sign an Order of Protective Custody (OPC)

59 2. Protective Custody Period What s next if an OPC is signed? Appoint attorney ad litem (AAL) for proposed patient (appoint AAL within 24 hours after application filed) Set probable cause hearing to be held within 72 hours of time detention began (statutory extension if time ends on weekend or holiday) Set final hearing on the merits within 14 days after application filed Serve notice on both proposed patient and attorney ad litem (AAL) of all pleadings, attorney appointments, hearing settings, and provide AAL with written list of AAL s duties

60 2. Protective Custody Period Probable Cause Hearing The issue at the PC hearing is NOT mental illness Only issue at the PC hearing: Does patient present substantial risk of serious harm to self or others such that he cannot be at liberty pending the final hearing? Standard is higher and narrower than at commitment hearing Rules of evidence do not apply: judge or magistrate may consider hearsay testimony that wouldn t be allowed at commitment hearing

61 2. Protective Custody Period Probable Cause Hearing If magistrate / special master determines that probable cause exists, protective custody continues If magistrate / special master determines there is no probable cause, then the patient is released pending final hearing If facility does not receive notice of result of hearing by 4:00 p.m. on date of hearing, patient must be discharged

62 2. Protective Custody Period Before the final commitment hearing. Must have two Certificates of Medical Examinations (CMEs) before final commitment hearing CMEs must be from two different doctors, based on evaluations made within 30 days of hearing If at any time head of mental health facility determines patient under protective custody no longer meets the criteria, then patient must be discharged from the hospital

63 Final Commitment Hearing The final commitment hearing is the bridge between the last two steps of the 3 step involuntary commitment process: 1. Emergency detention 2. Protective custody Final commitment hearing 3. Commitment (OPC was bridge here)

64 Final Commitment Hearing Hearing rules: The Texas Rules of Evidence govern the proceedings The hearing shall be on the record A court reporter must take the testimony Hearing can be held anywhere in county, but must be held at county courthouse on demand of proposed patient or patient s attorney

65 Elements for Inpatient Commitment The proposed patient is mentally ill and, as a result (1) the proposed patient is likely to cause serious harm to himself; or (2) the proposed patient is likely to cause serious harm to others; or (3) the Gravely Disabled standard (next slide)

66 The Gravely Disabled Standard (3) the proposed patient (a) is suffering severe and abnormal mental, emotional, or physical distress; and (b) is experiencing substantial mental or physical deterioration of the proposed patient s ability to function independently, which is exhibited by the proposed patient s inability, except for reasons of indigence, to provide for the proposed patient s basic needs, including food, clothing, health, or safety; and (c) is unable to make a rational and informed decision as to whether to submit to treatment

67 Elements for Outpatient Commitment Court may order proposed patient to receive temporary or extended outpatient mental health services if: (1) judge finds that appropriate services are available to patient and (2) the judge or jury finds ALL of the following (a) (b) (c) (d) the proposed patient is mentally ill; the nature of the mental illness is severe and persistent; as a result, the proposed patient will, if not treated, suffer severe and abnormal mental, emotional, or physical distress, and will experience deterioration of the ability to function independently to the extent that the patient will be unable to live safely in the community without court ordered outpatient services; the proposed patient has an inability to participate in outpatient treatment services effectively and voluntarily

68 Outpatient Commitment Outpatient commitment is solely based on the deterioration standard. See (2)(c): (2)(c) as a result, the proposed patient will, if not treated, suffer severe and abnormal mental, emotional, or physical distress, and will experience deterioration of the ability to function independently to the extent that the patient will be unable to live safely in the community without court ordered outpatient services

69 Sufficiency of Evidence oapplicant has burden to prove each element of the applicable criterion by clear & convincing evidence o Clear & convincing evidence produces a firm belief or conviction in the mind of the fact finder as to the truth of the allegations sought to be established oit is an intermediate evidentiary standard that requires more than a preponderance of evidence, but less than a reasonabledoubt standard

70 Sufficiency of Evidence The clear & convincing evidence necessary for a commitment must be based on facts o Psychotic behavior alone does not justify commitment o Expert diagnosis alone does not justify commitment Unless waived, the clear & convincing evidence must include evidence of recent overt acts or patterns of behavior And to justify commitment the required expert testimony must be supported by facts on which the expert opinions and recommendations are grounded

71 Least Restrictive Treatment If court finds by clear & convincing evidence that criteria for courtordered mental health services are met, court must determine what least restrictive treatment placement would be under the circumstances The least restrictive appropriate setting for the treatment of a patient is the treatment setting that (1) is available; (2) provides patient with greatest probability of improvement or cure; and (3) is no more restrictive of patient s physical or social liberties than is necessary to provide patient with most effective treatment and to protect adequately against any danger the patient poses to himself or others

72 Court Ordered Mental Health Services Writs of Commitment The court must direct the court clerk to issue to the person authorized to transport the patient two Writs of Commitment requiring the person to take custody of and transport the patient to the designated mental health facility.

73 Court Ordered Mental Health Services Release After Hearing Court must enter order denying application for court ordered mental health services if, after hearing the finder of fact fails to find, from clear and convincing evidence, the proposed patient is mentally ill and meets the applicable criteria. Upon denying application, court must order the immediate release of the proposed patient if they are detained.

74 Administration of Psychoactive Medications Administration of Medication to Patient Under Order for Inpatient Mental Health Services A person may not administer a psychoactive medication (as defined in Texas Health & Safety Code Section (3) ) to a patient who refuses to take the medication, unless: a. the patient is having a medication related emergency (as defined in Tex. Health & Safety Code Sec (2)); b. the patient is under an order authorizing the administration of the medication regardless of patient s refusal (must be a separate proceeding ); or c. the patient is 18 or older and the guardian of the patient consents to the administration of the medication.

75 Other Court Action Motion for Modification of Order for Inpatient Treatment To require patient to participate in outpatient mental health services once released from inpatient treatment No right to a jury

76 Other Court Action Motion for Modification of Order for Outpatient Treatment used when patient is not compliant or outpatient care not working seeks to order patient to inpatient care Application for Renewal or Order for Extended Mental Health Services Motion for Rehearing Seeking to set aside previous order for treatment

77 Involuntary Commitment and Guardianships Things a guardian may not do: Guardian of a ward who is 18 or older may not voluntarily admit a ward to a public or private inpatient psychiatric facility Guardian of totally incapacitated ward lacks authority to either (1) enter into an agreed commitment or (2) waive any procedural rights involving involuntary commitments

78 Involuntary Commitment and Guardianships Things a guardian may do: oguardian may voluntarily admit a minor ward oguardian of adult ward under an OPC can consent to involuntary psychoactive medication oguardian may transport adult ward to a mental health facility for purpose of obtaining a preliminary examination and emergency detention without a warrant oguardian of an adult ward who has decision making ability may apply on the ward's behalf for residential care and services if ward agrees

79 Costs of Proceedings The county originating the emergency detention or commitment process is responsible for court costs for commitments to State hospitals A private psychiatric facility is responsible for the court costs of persons committed to or from the facility A county shall not pay any court costs for a commitment to a private facility unless (1) there is no public facility available and (2) the commissioners court authorizes the payment of costs by the county Texas Health & Safety Code

80 Inspection of Court Records Each paper in a docket for mental health proceedings is a public record of a private nature Records may be used, inspected, or copied only under written order issued by county judge, judge of court with probate jurisdiction, or district judge of the county Judge may not issue such an order unless judge finds: 1. Release is justified and in the public interest, or 2. Paper is to be released to person to whom it relates or to person designated in a written release signed by the person to whom the paper relates Texas Health & Safety Code

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