Dems: Judiciary Committee Report – Week 12, 2018

March 28, 2018
By

SF 2099 – Small estates;
HF 2233 – Mechanics’ liens, public construction liens and early release of retained funds;
HF 2300 – Mental health professionals, limited liability companies and professional corporations;
HF 2338 – Operating while intoxicated and temporary restricted licenses;
HF 2402 – Power of attorney and dependent adult abuse. 

 

FLOOR ACTION:

SF 2099 increases the size of what qualifies as a small estate for probate purposes from $100,000 to $200,000. If a personal representative files to convert the estate administration to or from a small estate based on assets, a court order is not required to make the change. The clerk will make the conversion upon the filing of the personal representative’s statement. The bill makes changes to the requirements for closing the estate by sworn statement, specifies what is necessary to close a small estate and clarifies that clerks of court must close a small estate without a court order upon proof that the closing statement has been served and assets distributed. In the alternative, the clerk will close the small estate 60 days after filing of the closing statement and proof of service. The Senate adopted an amendment intended to clarify the definition of probate assets and requires attorneys for the estate to clearly specify which assets are probate assets and their gross value. The amendment also delays the effective date of transition from $100,000 to $200,000 to July 1, 2020.
[3/28: 46-0 (Absent: Bertrand, Lykam, Zumbach; 1 vacancy)]

 

HF 2233 has two main parts. One relates to amending liens. The other relates to retention funds required in public construction projects.

Under the bill, a lien statement may be amended by the claimant without court involvement to decrease the amount demanded in the lien. This can be done through the mechanics’ notice and lien registry. A lien statement may only be amended by leave of court to further justice, and no lien statement can be amended to increase the amount demanded.

The bill also makes changes to Chapter 573 (labor and materials on public improvements) regarding who is entitled to make claims against a retainage and the requirements to make a claim. The bill requires a furnisher of labor, materials, service or transportation to a subcontractor to provide a one-time notice in writing within 30 days of when they begin work or first supply materials to the principal contractor, along with detailed contact information for the furnisher and subcontractor. Under a Senate amendment, the 30-day notice requirement does not apply to highway, bridge or culvert projects. The person making the claim must provide a certified statement that the principal contractor received the notice. Code section 26.13 (early release of retained funds in public construction projects) is deleted. The language is placed in Chapter 573 (labor and materials in public construction projects).
[3/27: 26-21, party line (No: Democrats, D. Johnson; Absent: Bertrand, Zumbach; 1 vacancy)]

 

HF 2300 adds licensed mental health counselors and licensed social workers to the list of professionals who can form a professional limited liability company. In addition, the bill specifies that marital and family therapy counselors, mental health counselors, and psychologists and licensed social workers will be considered professionals that could lawfully practice in partnership and form a professional limited liability company. The bill also adds marital and family therapy, mental health counseling and licensed social work to the list of professions permitted to form a professional corporation, and allows marital and family therapy counselors, mental health counselors, and psychologists and licensed social workers to practice in combination as licensed individuals or as a partnership of licensed individuals in a professional corporation.
[3/26: 47-0 (Absent: Bertrand, Zumbach; 1 vacancy)]

 

HF 2338 allows those subject to a hard suspension of driving privileges after operating a vehicle while intoxicated to apply for a temporary restricted license and avoid the hard suspension. To obtain a temporary restricted license, the applicant must install an ignition interlock device. In addition, the bill removes the limitations on driving that are imposed on those with temporary restricted licenses. Under current law, a person with temporary restricted licenses can only drive to and from home and specified places at specified times for employment, health care, education, substance abuse treatment, court-ordered community service, parole and probation appointments, and to participate in a sobriety and drug monitoring program. First-time OWI offenders who test between .08 and .10 must install an ignition interlock device to obtain a temporary restricted license. Currently, they do not have to install an ignition interlock. The suspension of driving privileges for those with a commercial licenses or who drive school buses remain unchanged. The Senate adopted an amendment to maintain current law for those who cause the death of another due to driving while intoxicated: their license is suspended for six years, and they may not apply for a temporary restricted license for two years.
[3/26: 47-0 (Absent: Bertrand, Zumbach; 1 vacancy)]

 

HF 2402 addresses those who have power of attorney in the financial decision making of others when the agent commits or is accused of committing dependent adult abuse of the person they have authority over.

In a power of attorney governed by Chapter 633B, the person with authority to make financial decisions for another is an agent. The person who has ceded their decision-making authority is the principal. An agent’s authority under a power of attorney automatically terminates if they commit dependent adult abuse of the principal, per a dependent adult abuse report, or they are convicted of dependent adult abuse of the principal.

The bill allows those who become aware of pending criminal charges of dependent adult abuse against an agent or become aware of an investigation of dependent adult abuse relating to the agent to file a petition with the court for review of the agent’s conduct.

The bill allows a court to suspend an agent’s authority and appoint a guardian ad litem (must be a practicing attorney) to represent the principal when someone petitions the court pursuant to pending criminal charges of dependent adult abuse or an investigation of dependent adult abuse.
[3/27: 47-0 (Absent: Bertrand, Zumbach; 1 vacancy)]

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