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.