Tex.
Est. Code Section 1202.152
Letter or Certificate Required
(a)
Except as provided by Section 1202.1521 (Letter or Certificate: Requirements if Alleged Incapacity Based on Intellectual Disability), the court may not grant an order completely restoring a ward’s capacity or modifying a ward’s guardianship under an application filed under Section 1202.051 (Application Authorized) unless the applicant presents to the court a written letter or certificate from a physician licensed in this state that is dated:(1)
not earlier than the 120th day before the date the application was filed; or(2)
after the date the application was filed but before the date of the hearing.(a)
Subject to Section 1202.1521 (Letter or Certificate: Requirements if Alleged Incapacity Based on Intellectual Disability), the applicant must present to the court and the court shall consider a written letter or certificate as evidence of capacity, or sufficient capacity with supports and services, at a hearing under Section 1202.151 (Evidence and Burden of Proof at Hearing) from:(1)
a physician licensed in this state, if the ward’s incapacity resulted from a physical condition or mental condition; or(2)
a psychologist licensed in this state or certified by the Health and Human Services Commission to perform the examination, in accordance with rules adopted by the executive commissioner of the commission governing examinations of that kind, if the ward’s incapacity resulted from a mental condition.(a-1)
The physician or psychologist who provides the letter or certificate under Subsection (a) must:(1)
have experience examining individuals with the physical or mental condition resulting in the ward’s incapacity; or(2)
have an established patient-provider relationship with the ward.(a-2)
The letter or certificate required by Subsection (a) must be:(1)
signed by the physician or psychologist; and(2)
dated:(A)
not earlier than the 120th day before the date the application was filed; or(B)
after the date the application was filed but before the date of the hearing.(a-3)
The court may consider the following evidence of capacity, or sufficient capacity with supports and services, at a hearing under Section 1202.151 (Evidence and Burden of Proof at Hearing):(1)
a statement from a representative of the local mental health authority or the local intellectual and developmental disability authority listing services received by the ward and the effectiveness of those services;(2)
medical records;(3)
affidavits of treating professionals regarding the effectiveness of supports and services the ward is receiving;(4)
documentation from a health care provider providing supports or services to the ward under Medicaid, including a Medicaid waiver program authorized under Section 1915(c) of the federal Social Security Act (42 U.S.C. Section 1396n);(5)
an affidavit of the ward’s employer or day habilitation program manager regarding the ward’s ability to perform the necessary tasks;(6)
documentation from the United States Social Security Administration identifying the ward’s representative payee; or(7)
any other evidence demonstrating the ward’s capacity.(b)
A letter or certificate presented under Subsection (a) must:(1)
describe the nature and degree of incapacity, including the medical history if reasonably available, or state that, in the physician’s opinion, the ward has the capacity, or sufficient capacity with supports and services, to:(A)
provide food, clothing, and shelter for himself or herself;(B)
care for the ward’s own physical health; and(C)
manage the ward’s financial affairs;(2)
provide a medical prognosis specifying the estimated severity of any incapacity;(3)
state how or in what manner the ward’s ability to make or communicate responsible decisions concerning himself or herself is affected by the ward’s physical or mental health;(4)
state whether any current medication affects the ward’s demeanor or the ward’s ability to participate fully in a court proceeding;(5)
describe the precise physical and mental conditions underlying a diagnosis of senility, if applicable; and(6)
include any other information required by the court.(c)
If the court determines it is necessary, the court shall appoint a physician or psychologist to complete an examination of the ward. The physician or psychologist must be chosen by the ward, provided, however, that if the ward makes no choice, the ward’s physician or psychologist of choice is not available, or additional information is needed or required after an examination by the ward’s physician or psychologist of choice, the court may appoint the necessary physicians or psychologists to examine the ward. A physician appointed by the court must examine the ward in the same manner and to the same extent as a ward is examined by a physician under Section 1101.103 (Determination of Incapacity of Certain Adults: Physician or Psychologist Examination) or 1101.104 (Examinations and Documentation Regarding Intellectual Disability).(a)
In this section:(1)
“Advanced practice registered nurse” has the meaning assigned by Section 301.152 (Rules Regarding Specialized Training), Occupations Code.(2)
“Physician” has the meaning assigned by Section 1101.100 (Definitions).(a)
Except as provided by Section 1202.1521 (Letter or Certificate: Requirements if Alleged Incapacity Based on Intellectual Disability), the court may not grant an order completely restoring a ward’s capacity or modifying a ward’s guardianship under an application filed under Section 1202.051 (Application Authorized) unless the applicant presents to the court a written letter or certificate from a physician licensed in this state that is dated:(1)
not earlier than the 120th day before the date the application was filed; or(2)
after the date the application was filed but before the date of the hearing.(b)
An advanced practice registered nurse may act under this section only if the advanced practice registered nurse is acting under a physician’s delegation authority and supervision in accordance with Chapter 157 (Authority of Physician to Delegate Certain Medical Acts), Occupations Code.(c)
The court may not grant an order completely restoring a ward’s capacity or modifying a ward’s guardianship under an application filed under Section 1202.051 (Application Authorized) unless the applicant presents to the court a written letter or certificate from a physician or advanced practice registered nurse licensed in this state that is dated:(1)
not earlier than the 120th day before the date the application was filed; or(2)
after the date the application was filed but before the date of the hearing.(c-1)
For purposes of Subsection (c), a letter or certificate based on an examination by an advanced practice registered nurse must be signed by the supervising physician.(d)
A letter or certificate presented under Subsection (c) must:(1)
describe the nature and degree of incapacity, including the medical history if reasonably available, or state that, in the physician’s opinion, the ward has the capacity, or sufficient capacity with supports and services, to:(A)
provide food, clothing, and shelter for himself or herself;(B)
care for the ward’s own physical health; and(C)
manage the ward’s financial affairs;(2)
provide a medical prognosis specifying the estimated severity of any incapacity;(3)
state how or in what manner the ward’s ability to make or communicate responsible decisions concerning himself or herself is affected by the ward’s physical or mental health;(4)
state whether any current medication affects the ward’s demeanor or the ward’s ability to participate fully in a court proceeding;(5)
describe the precise physical and mental conditions underlying a diagnosis of senility, if applicable; and(6)
include any other information required by the court.(e)
For purposes of Subsection (d), the opinion of an advanced practice registered nurse that is based on an examination of a ward conducted by the advanced practice registered nurse under delegation from and supervision by a physician and is signed by the supervising physician is considered the supervising physician’s opinion.(f)
If the court determines it is necessary, the court may appoint the necessary physicians or advanced practice registered nurses to examine the ward in the same manner and to the same extent as a ward is examined by a physician or advanced practice registered nurse under Section 1101.103 (Determination of Incapacity of Certain Adults: Physician or Psychologist Examination) or 1101.104 (Examinations and Documentation Regarding Intellectual Disability).
Source:
Section 1202.152 — Letter or Certificate Required, https://statutes.capitol.texas.gov/Docs/ES/htm/ES.1202.htm#1202.152 (accessed May 11, 2024).
