BILL ANALYSIS H.B. 1136 By: Hartnett 4-3-95 Committee Report (Unamended) BACKGROUND Probate Code Section 676(d) allows parents of a minor child to name a guardian for their minor children by will or by written declaration. However, there is no form provided for the written declaration. Furthermore, there is no provision in the Probate Code to allow parents to name a guardian for their children who are incapacitated adults. PURPOSE This bill allows parents to designate a guardian for their incapacitated adult children by will or written declaration. This bill also clarifies the requirements of a written declaration for parents to appoint guardians for their minor or incapacitated adult children and provides an optional form. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not delegate any new rulemaking authority to a state officer, agency, department, or institution. SECTION-BY-SECTION ANALYSIS SECTION 1. Amends Sect. 676(d), Texas Probate Code, to provide that the probate court shall give priority to the person designated by a parent in a will or written declaration as guardian of minor children after the parent's death. SECTION 2. Amends Sect. 677, Texas Probate Code, by adding new subsection (b) to allow the parent of an incapacitated adult child to designate by will or written declaration a guardian to serve after the parent's death. The parent must have been guardian of the adult child. Requires the court to prefer the person named by the parent as guardian. SECTION 3. Amends Subpart A, Part 3, Chapter XIII, Texas Probate Code, by adding Section 677A, which sets forth the requirements for written declarations of parents appointing guardians for their children. Sect. 677A. WRITTEN DECLARATIONS BY CERTAIN PARENTS TO APPOINT GUARDIANS FOR THEIR CHILDREN. (a) Requires attestation by at least two credible witnesses 14 years old or older who are not named as guardian or alternate guardian. (b) Requires a self-proving affidavit as to competence of the declarant and execution of the declaration. This is prima facie evidence of competence and that the guardian named would serve the best interest of the ward. (c) The declaration and affidavit may be filed with the court anytime after application for appointment of a guardian is filed and before a guardian is appointed. If the designated guardian is unavailable, the court must appoint qualified alternate named or another provided by the code. (d) Declarant may revoke a declaration under Section 63 of this code. (e) Declaration and affidavit may be in any form clearly indicating the intention to designate a guardianship for the child. Provides an optional form for the written declaration of appointment of guardian for children upon parent's death. SECTION 4. Effective date: September 1, 1995. Applies only to a will or written declaration for the appointment of a guardian that is executed on or after this date. SECTION 5. EMERGENCY CLAUSE SUMMARY OF COMMITTEE ACTION House Bill 1136 was considered by the Committee on Civil Practices in a public hearing on March 8, 1995. No one testified for, against or neutral on the bill. The bill was left pending. H.B. 1136 was considered by the Committee on Civil Practices in a public hearing on March 29, 1995. The bill was reported favorably without amendment with the recommendation that it pass and be printed and be sent to the Committee on Local and Consent Calendars, by a record vote of six ayes, zero nays, zero present not voting, and three absent.