BILL ANALYSIS


                                                        H.B. 1136
                                         By: Hartnett (Wentworth)
                                                    Jurisprudence
                                                          5-10-95
                              Senate Committee Report (Unamended)
BACKGROUND

Section 676(d), Probate Code, allows parents of a minor child to
name a guardian for their children by will or by written
declaration.  However, there is no form provided for the written
declaration.  In addition, there is no provision to allow parents
to name a guardian for their children who are incapacitated adults.

PURPOSE

As proposed, H.B. 1136 authorizes parents to designate a guardian
for their incapacitated adult children and provides an authorized
form of a written declaration for parents to appoint guardians for
their minor or incapacitated adult children.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not grant any
additional rulemaking authority to a state officer, institution, or
agency.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 676(d), Probate Code, to require the
court to appoint a person appointed by the surviving parent of a
minor to be guardian of the parent's minor children after the death
of the parent in preference to those otherwise entitled to serve as
guardian, unless the court finds that the designated person is
disqualified, is dead, refuses to serve, or would not serve the
best interest of the minor children. 

SECTION 2. Amends Section 677, Probate Code, to authorize the
surviving parent of an adult individual who, because of a physical
or mental condition, is unable to provide certain basic needs for
himself or herself, to by will or written declaration appoint an
eligible person to be guardian of the adult individual after the
parent's death if the parent is the guardian of the adult
individual.  Requires the court to appoint the person appointed by
the adult individual as guardian in preference to those otherwise
entitled to serve as guardian, unless the court finds that the
designated person is disqualified, is dead, refuses to serve, or
would not serve the best interests of the adult individual. 
Entitles the eligible person appointed to be appointed guardian of
the adult individual's estate after the death of the individual's
parent if the individual's parent is the guardian of the
individual's estate.

SECTION 3. Amends Chapter XIII, Part 3A, Probate Code, by adding
Section 677A, as follows:

     Sec. 677A.  WRITTEN DECLARATIONS BY CERTAIN PARENTS TO APPOINT
     GUARDIANS FOR THEIR CHILDREN.  (a) Requires a declaration
     appointing an eligible person to be guardian of the parent's
     child under Section 676(d) or 677(b) to be attested to by at
     least two credible witnesses 14 years of age or older who are
     not named as guardian or alternate guardian.
     
     (b) Requires the declaration to have attached a self-proving
       affidavit signed by the declarant and the witnesses
       attesting to the competence of the declarant and the
       execution of the declaration.  Provides that an executed and
       witnessed declaration and affidavit are prima facie evidence
       that the declarant was competent at the time the declaration
       was executed and that the guardian named would serve the
       best interests of the ward.
       
       (c) Authorizes the declaration and affidavit to be filed at
       any time after the application for appointment is filed and
       before a guardian is appointed.  Requires the court to
       appoint the next eligible designated alternate guardian
       named in the declaration, if the designated guardian does
       not qualify, is dead, refuses to serve, resigns, or dies
       after being appointed guardian, or is otherwise unable to
       serve.  Requires the court to appoint another person to
       serve if the guardian and all alternate guardians are unable
       to serve.
       
       (d) Authorizes the declarant to revoke a declaration in any
       manner provided for the revocation of a will under Section
       63 of this code.
       
       (e) Authorizes a declaration and affidavit to be in any form
       adequate to clearly indicate the declarant's intention to
       designate a guardian for the declarant's child.  Sets forth
       the language of a form which is authorized, but not required
       to be used.
       
       SECTION 4.   Effective date: September 1, 1995.
           Makes application of this Act prospective.

SECTION 5. Emergency clause.