H.B. No. 1136
1-1 AN ACT
1-2 relating to the appointment of guardians of minors and certain
1-3 incapacitated persons by will or written declaration.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 676(d), Texas Probate Code, is amended to
1-6 read as follows:
1-7 (d) The surviving parent of a minor may by will or written
1-8 declaration appoint any eligible person to be guardian of the
1-9 person of the parent's minor children after the death of the
1-10 parent. Unless the court finds that the person designated in the
1-11 will or declaration to serve as guardian of the person of the
1-12 parent's minor children is disqualified, is dead, refuses to serve,
1-13 or would not serve the best interests of the minor children, the
1-14 court shall appoint the person as guardian in preference to those
1-15 otherwise entitled to serve as guardian under this chapter. On
1-16 compliance with this code, an eligible person is also entitled to
1-17 be appointed guardian of the children's estates after the death of
1-18 the parent.
1-19 SECTION 2. Section 677, Texas Probate Code, is amended to
1-20 read as follows:
1-21 Sec. 677. Guardians of Persons Other Than Minors. (a) The
1-22 court shall appoint a guardian for a person other than a minor
1-23 according to the circumstances and considering the best interests
1-24 of the ward. If the court finds that two or more eligible persons
2-1 are equally entitled to be appointed guardian:
2-2 (1) the ward's spouse is entitled to the guardianship
2-3 in preference to any other person if the spouse is one of the
2-4 eligible persons;
2-5 (2) the eligible person nearest of kin to the ward is
2-6 entitled to the guardianship if the ward's spouse is not one of the
2-7 eligible persons; or
2-8 (3) the court shall appoint the eligible person who is
2-9 best qualified to serve as guardian if:
2-10 (A) the persons entitled to serve under
2-11 Subdivisions (1) and (2) of this section refuse to serve;
2-12 (B) two or more persons entitled to serve under
2-13 Subdivision (2) of this section are related in the same degree of
2-14 kinship to the ward; or
2-15 (C) neither the ward's spouse or any person
2-16 related to the ward is an eligible person.
2-17 (b) The surviving parent of an adult individual who, because
2-18 of a physical or mental condition, is substantially unable to
2-19 provide food, clothing, or shelter for himself or herself, to care
2-20 for the individual's own physical health, or to manage the
2-21 individual's own financial affairs, may by will or written
2-22 declaration appoint an eligible person to be guardian of the person
2-23 of the adult individual after the parent's death if the parent is
2-24 the guardian of the person of the adult individual. Unless the
2-25 court finds that the person designated in the will or declaration
2-26 to serve as guardian is disqualified, is dead, refuses to serve, or
2-27 would not serve the best interests of the adult individual, the
3-1 court shall appoint the person as guardian in preference to those
3-2 otherwise entitled to serve as guardian under this chapter. On
3-3 compliance with this code, the eligible person appointed under this
3-4 subsection is also entitled to be appointed guardian of the adult
3-5 individual's estate after the death of the individual's parent if
3-6 the individual's parent is the guardian of the individual's estate.
3-7 SECTION 3. Subpart A, Part 3, Chapter XIII, Texas Probate
3-8 Code, is amended by adding Section 677A to read as follows:
3-9 Sec. 677A. WRITTEN DECLARATIONS BY CERTAIN PARENTS TO
3-10 APPOINT GUARDIANS FOR THEIR CHILDREN. (a) A written declaration
3-11 appointing an eligible person to be guardian of the person of the
3-12 parent's child under Section 676(d) or 677(b) of this code must be
3-13 attested to by at least two credible witnesses 14 years of age or
3-14 older who are not named as guardian or alternate guardian in the
3-15 declaration.
3-16 (b) The declaration must have attached a self-proving
3-17 affidavit signed by the declarant and the witnesses attesting to
3-18 the competence of the declarant and the execution of the
3-19 declaration. A properly executed and witnessed declaration and
3-20 affidavit are prima facie evidence that the declarant was competent
3-21 at the time the declarant executed the declaration and that the
3-22 guardian named in the declaration would serve the best interests of
3-23 the ward.
3-24 (c) The declaration and affidavit may be filed with the
3-25 court at any time after the application for appointment of a
3-26 guardian is filed and before a guardian is appointed. If the
3-27 designated guardian does not qualify, is dead, refuses to serve,
4-1 resigns, or dies after being appointed guardian, or is otherwise
4-2 unavailable to serve as guardian, the court shall appoint the next
4-3 eligible designated alternate guardian named in the declaration.
4-4 If the guardian and all alternate guardians do not qualify, are
4-5 dead, refuse to serve, or later die or resign, the court shall
4-6 appoint another person to serve as otherwise provided by this code.
4-7 (d) The declarant may revoke a declaration in any manner
4-8 provided for the revocation of a will under Section 63 of this
4-9 code, including the subsequent reexecution of the declaration in
4-10 the manner required for the original declaration.
4-11 (e) A declaration and affidavit may be in any form adequate
4-12 to clearly indicate the declarant's intention to designate a
4-13 guardian for the declarant's child. The following form may, but
4-14 need not, be used:
4-15 DECLARATION OF APPOINTMENT OF GUARDIAN FOR
4-16 MY CHILDREN IN THE EVENT OF MY DEATH
4-17 I, __________, make this Declaration to appoint as guardian
4-18 for my child or children, listed as follows, in the event of my
4-19 death:
4-20 ____________________ ___________________
4-21 ____________________ ___________________
4-22 ____________________ ___________________
4-23 (add blanks as appropriate)
4-24 I designate __________ to serve as guardian of the person of
4-25 my (child or children), __________ as first alternate guardian of
4-26 the person of my (child or children), __________ as second
4-27 alternate guardian of the person of my (child or children), and
5-1 __________ as third alternate guardian of the person of my (child
5-2 or children).
5-3 (If applicable) I designate __________ to serve as guardian
5-4 of the estate of my (child or children), __________ as first
5-5 alternate guardian of the estate of my (child or children),
5-6 __________ as second alternate guardian of the estate of my (child
5-7 or children), and __________ as third alternate guardian of the
5-8 estate of my (child or children).
5-9 If any guardian or alternate guardian dies, does not qualify,
5-10 or resigns, the next named alternate guardian becomes guardian of
5-11 my (child or children).
5-12 Signed this ___ day of __________, 19___.
5-13 ___________________________
5-14 Declarant
5-15 ___________________________ _______________________
5-16 Witness Witness
5-17 SELF-PROVING AFFIDAVIT
5-18 Before me, the undersigned authority, on this date personally
5-19 appeared the declarant, and ____________ and ____________ as
5-20 witnesses, and all being duly sworn, the declarant said that the
5-21 above instrument was his or her Declaration of Appointment of
5-22 Guardian for the Declarant's Children in the Event of Declarant's
5-23 Death and that the declarant had made and executed it for the
5-24 purposes expressed in the declaration. The witnesses declared to
5-25 me that they are each 14 years of age or older, that they saw the
5-26 declarant sign the declaration, that they signed the declaration as
5-27 witnesses, and that the declarant appeared to them to be of sound
6-1 mind.
6-2 ___________________________
6-3 Declarant
6-4 ___________________________ _______________________
6-5 Affiant Affiant
6-6 Subscribed and sworn to before me by the above named
6-7 declarant and affiants on this ____ day of __________, 19__.
6-8 ________________________
6-9 Notary Public in and for
6-10 the State of Texas
6-11 My Commission expires:
6-12 ________________________
6-13 SECTION 4. This Act takes effect September 1, 1995, and the
6-14 change in law made by this Act applies only to a will or written
6-15 declaration for the appointment of a guardian that is executed on
6-16 or after the effective date of this Act. A will or written
6-17 declaration for the appointment of a guardian that is executed
6-18 before the effective date of this Act is governed by the law as it
6-19 existed immediately before the effective date of this Act, and that
6-20 law is continued in effect for that purpose.
6-21 SECTION 5. The importance of this legislation and the
6-22 crowded condition of the calendars in both houses create an
6-23 emergency and an imperative public necessity that the
6-24 constitutional rule requiring bills to be read on three several
6-25 days in each house be suspended, and this rule is hereby suspended.