BILL ANALYSIS
Civil Practices Committee
H.B. 1709
May 2, 1995
03-31-95
Committee Report (Unamended)
BACKGROUND
Current Texas law does not provide a standby guardian for a minor
whose parent, or legal guardian, is suffering through tragic
periods in their lives. Persons who contract illnesses that will
cause death or chronic incapacity confront, in addition to the
suffering and horror caused by the illness, a dire need to settle
their personal affairs in advance of death or incapacity. There is
no statewide coordinated system for providing standby guardians for
children of parents who may or may not survive the medical ordeals.
At one of the most vulnerable times of their lives, when their
parents are near death, children find themselves wandering the
judicial hallways, pulled between relatives, child protective
services and, occasionally, family friends.
PURPOSE
H.B. 1709 will provide a standby guardian for a minor whose primary
guardian has become unable to care for the minor due to a mentally
disabling or physically debilitating illness as determined by the
attending physician.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly
grant any additional rulemaking authority to a state officer,
department, agency or institution.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter XIII, Part 5, Texas Probate Code, by
adding Subpart H.
SUBPART H. STANDBY GUARDIANSHIP.
Sect. 895. DEFINITIONS.
(1)"Mentally disabled" mean chronically and substantially
unable, as a result of mental impairment, to understand the nature
and consequences of a decision concerning the care of a minor, and
thus, is unable to care for that minor.
(2) "Physically debilitated" means chronically and
substantially unable, as a result of a physically debilitating
illness, disease, or injury, to care for a minor.
(3) "Standby guardian" means a person appointed by a court or
designated by a parent or guardian of a minor under this subpart to
serve as standby guardian of a minor.
Sect. 896. APPLICABLE PROVISIONS. Provides that except as
otherwise provided, the provisions of this chapter relating to
guardianship of persons and estates of incapacitated persons apply
to a standby guardianship.
Sect. 897. APPLICATION FOR COURT-APPOINTED STANDBY GUARDIAN.
(a) Provides that a minor's parent or guardian may file a written
application for the appointment of a standby guardian of the
minor's person or estate, or of both the minor's person and estate.
(b) Requires that the application be sworn to by the applicant
and state:
(1) information as suggested by Section 682 of this code.
(2) whether the date the standby guardian's term of
appointment begins:
(A) the date the applicant becomes mentally disabled;
(B) the day the applicant dies;
(C) the date the standby guardian may exercise authority
over the minor as provided by the applicant's
authorization under Section 908 of this code; or
(D) the earlier of:
(i) the date the applicant becomes mentally
disabled;
(ii) the date the applicant dies; or
(iii) the date the standby guardian may exercise
authority over the minor as provided by Section 908
of this code;
(3) that the applicant suffers from a progressively chronic or
irreversible fatal illness; and
(4) the name and address of the physician who diagnosed the
illness and the date of and basis for that diagnosis.
(c) Provides that the applicant may omit the identity of the
illness from the application.
Sect. 898. COURT APPEARANCE BY APPLICANT. Provides that the
applicant not be required to appear in court if suffering medical
difficulties.
Sec. 899. COURT ORDER FOR COURT-APPOINTED STANDBY GUARDIAN.
(a) Requires the court to appoint a standby guardian under an
application if the court finds:
(1) the requirements of Section 684 of this code have been
met;
(2) the applicant suffers from a progressively chronic or
irreversible fatal illness; and
(3) it is in the best interest of the minor that the court
appoint a person as a standby guardian.
(b) Provides that an order under this section must contain
findings of fact and specify:
(1) the information required by Section 692 of this code;
(2) whether the term of the standby guardian's appointment
begins on:
(A) the date the standby guardian receives the
determination of the applicant's mental disability under
Section 907 of this code;
(B) the date the standby guardian is authorized by the
applicant to exercise authority over the minor as
provided by the document that meets the requirements of
Section 908 of this code;
(C) the date the applicant dies; or
(D) the earlier of:
(i) determination of the applicant's mental
disability;
(ii) the date the applicant dies; or
(iii) the date the standby guardian is authorized
by the applicant to exercise authority over the
minor as required by Section 908 of this code; and
(3) the information required by Section 693(d) of this code.
(c) Provides that a standby guardian appointed under this
section becomes the minor's guardian under this chapter on the date
the standby guardian's term of appointment begins.
Sect. 900. REQUIRED FILING BY COURT-APPOINTED STANDBY
GUARDIAN. Requires that the standby guardian file the document not
later than 90 days on which the standby guardian receives the
document evidencing the event on which the event under Section 899
(b) (2).
Sect. 901. REMOVAL. Provides that the court may remove a
standby guardian appointed by the court if:
(1) the standby guardian fails to comply with the filing
requirements; or
(2) the court finds at any time before the beginning of the
standby guardian's term of appointment that requirements were
not met.
Sect. 902. RESIGNATION. Provides that a person appointed
standby guardian by a court may resign by:
(1) executing a written letter of resignation;
(2) filing the letter with the court that granted standby
guardianship; and
(3) promptly notifying the applicant or declarant.
Sec. 903. DESIGNATION OF STANDBY GUARDIAN BEFORE NEED ARISES.
(a) Provides that a minor's parent or guardian may designate
a person to serve as standby guardian of the person or estate of
the minor, or of the minor's person or estate.
(b) Provides that a declarant may designate an alternate
standby guardian.
(c) Requires that a declarant, standby guardian, and alternate
standby guardian to sign the declaration in the presence of two
credible witnesses who are at least 14 years of age.
(d) Provides for an acceptable alternate signature if
declarant is unable to do so.
(e) Provides that the declaration state that the declarant
intends for the standby guardian to become the minor's standby
guardian if the declarant becomes:
(1) mentally disabled;
(2) becomes physically debilitated;
(3) dies before an application for appointment of a guardian
of the minor who is the subject of the declaration.
(f) Requires that the declaration must have attached a self-proving affidavit signed by the declarant, standby guardian,
alternate standby guardian, if applicable, and the witnesses
attesting to the competence of the declarant, standby guardian, and
alternate standby guardian, if applicable.
(g) Provides that a declaration and affidavit may be in any
form adequate to clearly indicate the declarant's intention to
designate a standby guardian. Provides declaration application.
Sect. 904. TERM OF APPOINTMENT OF DESIGNATED STANDBY GUARDIAN.
Provides that the term of a standby guardian begins on the earlier
of:
(1) the date the standby guardian receives the notice of the
determination of the declarant's mental disability;
(2) the date the standby guardian may exercise authority over
the minor because of the declarant's physical debilitation;
(3) the date the declarant dies.
Sect. 905. DESIGNATED STANDBY GUARDIAN'S APPLICATION FOR
GUARDIANSHIP.
(a) Requires the standby guardian to file within 60 days an
application to become appointed guardian of the person or estate,
or both the person and estate, of the minor who is the subject of
the declaration.
(b) Requires the standby guardian's application seeking
guardianship to include:
(1) information required by section 682 of this code;
(2) a copy of the written declaration designating the person
as the minor's standby guardian;
(3) a copy of the document evidencing the event on which the
standby guardian's appointment is based; and
(4) if the alternate standby guardian files the application,
a statement that the person designated as standby guardian is
unwilling or unable to act as standby guardian, and the basis
for that statement.
Sect. 906. COURT ORDER APPOINTING DESIGNATED STANDBY GUARDIAN
AS GUARDIAN.
(a) Requires that the court grant an application filed by a
standby guardian if the court finds:
(1) the requirements of Section 684 of this code have been
met;
(2) the declarant properly designated the applicant as standby
guardian in the declaration;
(3) the applicant has a copy of the document evidencing the
event on which the standby guardian's appointment is based;
(4) it is in the best interest of the minor;
(5) if the applicant was designate as an alternate standby
guardian by the written declaration, that the person
designated as standby guardian in the declaration is unwilling
or unable to act as standby guardian.
(b) Provides that an order entered under this section must
contain information required by Sections 692 and 693(d) of this
code.
Sect. 907. DETERMINATION OF MENTAL DISABILITY OR PHYSICAL
DEBILITATION.
(a) Provides that a determination of a person's mental
disability or physical debilitation for purposes of this subpart
must:
(1) be made by the attending physician to a reasonable degree
of medical certainty;
(2) be in writing; and
(3) contain the attending physician's opinion regarding the
cause, nature and extent of probable duration of the mental
disability or physical debilitation.
(b) Requires the physician to provide a copy of the
determination of the person's mental disability or physical
debilitation to the standby guardian, if the identity of the
standby guardian is known.
(c) Provides that the standby guardian may request that the
attending physician make a determination regarding the person's
mental disability or physical debilitation.
(d) Defines "attending physician" as:
(1) the physician having primary responsibility for the
treatment and care of a person;
(2) a physician who is responsible for the care and treatment
of a person if more than one physician is responsible for the
person's treatment and care;
(3) a physician acting on behalf of a physician who has
primary responsibility for a person's treatment and care; or
(4) a physician who is familiar with a person's condition if
no physician has primary responsibility for the person's
treatment and care.
Sect. 908. REQUIREMENTS OF AUTHORIZATION FOR APPOINTMENT OF
STANDBY GUARDIAN.
(a) Provides that a minor's parent guardian may designate the
date a standby guardian may exercise authority over the minor by
signing a written authorization for that purpose in presence of two
credible witnesses at least 14 years of age.
(b) Provides that a person may sign the authorization on
behalf of the parent or guardian making the authorization if:
(1) the person signs the authorization in the presence of the
parent or guardian making the authorization and the two
witnesses; and
(2) the parent or guardian making the authorization is unable
to sign the authorization.
Sect. 909. NOTICE OF TERM APPOINTMENT.
(a) Requires that a person who is appointed standby guardian
to inform the parent or guardian who is determined to be mentally
disabled of:
(1) the date the term of appointment is scheduled to begin;
and
(2) the parent's or guardian's right to promptly revoke the
standby guardians appointment.
(b) Provides that the standby guardian is not required to
provide a parent or guardian the information required under this
section if the parent or guardian does not have the ability to
comprehend information.
Sect. 910. REVOCATION.
(a) Provides that a person may revoke the standby guardianship
by:
(1) executing a written revocation;
(2) filing the revocation with the court that granted
guardianship; and
(3) promptly notifying the standby guardian of the person's
revocation.
(b) Provides that a person who appoints a standby guardian may
revoke the standby guardianship by:
(1) notifying the standby guardian in any manner that
indicates the person's specific intent to revoke the standby
guardianship if the standby guardian has not filed an
application under Section 905 of this code; or
(2) if the standby guardian has filed an application to be
appointed the minor's guardian under Section 905 of this code,
by:
(A) executing a written revocation;
(B) filing the revocation with the court that granted
the guardianship; and
(C) promptly notifying the standby guardian of the
person's revocation.
Sect. 911. CONCURRENT AUTHORITY WITH PARENT OR OTHER GUARDIAN.
Provides that a minor's standby guardian for a reason other than
death of the minor's parent or guardian has concurrent authority
over the minor under this chapter with the minor's parent or other
guardian.
SECTION 2. Emergency Clause - effective immediately.
SUMMARY OF COMMITTEE ACTION
H.B. 1709 was considered in a public hearing on April 5, 1995 by
the Committee on Civil Practices. The following individuals
testified in support of the bill: Eugene Williams, II, representing
himself; and Diane Baraldi Powell, representing herself and Mujeres
Project. No one testified neutrally on or in opposition to the
bill. The bill was referred to a subcommittee consisting of
Representatives Hartnett (chair), Alvarado and Zbranek. After being
recalled from subcommittee, the bill was considered by the
committee in a formal meeting on May 1, 1995. H.B. 1709 was
reported favorably without amendment with the recommendation that
it do pass and be printed, by a record vote of seven ayes, zero
nays, zero pnv and two absent.