By Hartnett H.B. No. 1136 74R3197 CLG-D A BILL TO BE ENTITLED 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.