1-1 By: Hartnett (Senate Sponsor - Wentworth) H.B. No. 1136 1-2 (In the Senate - Received from the House April 21, 1995; 1-3 April 24, 1995, read first time and referred to Committee on 1-4 Jurisprudence; May 9, 1995, reported favorably by the following 1-5 vote: Yeas 6, Nays 0; May 9, 1995, sent to printer.) 1-6 A BILL TO BE ENTITLED 1-7 AN ACT 1-8 relating to the appointment of guardians of minors and certain 1-9 incapacitated persons by will or written declaration. 1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-11 SECTION 1. Section 676(d), Texas Probate Code, is amended to 1-12 read as follows: 1-13 (d) The surviving parent of a minor may by will or written 1-14 declaration appoint any eligible person to be guardian of the 1-15 person of the parent's minor children after the death of the 1-16 parent. Unless the court finds that the person designated in the 1-17 will or declaration to serve as guardian of the person of the 1-18 parent's minor children is disqualified, is dead, refuses to serve, 1-19 or would not serve the best interests of the minor children, the 1-20 court shall appoint the person as guardian in preference to those 1-21 otherwise entitled to serve as guardian under this chapter. On 1-22 compliance with this code, an eligible person is also entitled to 1-23 be appointed guardian of the children's estates after the death of 1-24 the parent. 1-25 SECTION 2. Section 677, Texas Probate Code, is amended to 1-26 read as follows: 1-27 Sec. 677. Guardians of Persons Other Than Minors. (a) The 1-28 court shall appoint a guardian for a person other than a minor 1-29 according to the circumstances and considering the best interests 1-30 of the ward. If the court finds that two or more eligible persons 1-31 are equally entitled to be appointed guardian: 1-32 (1) the ward's spouse is entitled to the guardianship 1-33 in preference to any other person if the spouse is one of the 1-34 eligible persons; 1-35 (2) the eligible person nearest of kin to the ward is 1-36 entitled to the guardianship if the ward's spouse is not one of the 1-37 eligible persons; or 1-38 (3) the court shall appoint the eligible person who is 1-39 best qualified to serve as guardian if: 1-40 (A) the persons entitled to serve under 1-41 Subdivisions (1) and (2) of this section refuse to serve; 1-42 (B) two or more persons entitled to serve under 1-43 Subdivision (2) of this section are related in the same degree of 1-44 kinship to the ward; or 1-45 (C) neither the ward's spouse or any person 1-46 related to the ward is an eligible person. 1-47 (b) The surviving parent of an adult individual who, because 1-48 of a physical or mental condition, is substantially unable to 1-49 provide food, clothing, or shelter for himself or herself, to care 1-50 for the individual's own physical health, or to manage the 1-51 individual's own financial affairs, may by will or written 1-52 declaration appoint an eligible person to be guardian of the person 1-53 of the adult individual after the parent's death if the parent is 1-54 the guardian of the person of the adult individual. Unless the 1-55 court finds that the person designated in the will or declaration 1-56 to serve as guardian is disqualified, is dead, refuses to serve, or 1-57 would not serve the best interests of the adult individual, the 1-58 court shall appoint the person as guardian in preference to those 1-59 otherwise entitled to serve as guardian under this chapter. On 1-60 compliance with this code, the eligible person appointed under this 1-61 subsection is also entitled to be appointed guardian of the adult 1-62 individual's estate after the death of the individual's parent if 1-63 the individual's parent is the guardian of the individual's estate. 1-64 SECTION 3. Subpart A, Part 3, Chapter XIII, Texas Probate 1-65 Code, is amended by adding Section 677A to read as follows: 1-66 Sec. 677A. WRITTEN DECLARATIONS BY CERTAIN PARENTS TO 1-67 APPOINT GUARDIANS FOR THEIR CHILDREN. (a) A written declaration 1-68 appointing an eligible person to be guardian of the person of the 2-1 parent's child under Section 676(d) or 677(b) of this code must be 2-2 attested to by at least two credible witnesses 14 years of age or 2-3 older who are not named as guardian or alternate guardian in the 2-4 declaration. 2-5 (b) The declaration must have attached a self-proving 2-6 affidavit signed by the declarant and the witnesses attesting to 2-7 the competence of the declarant and the execution of the 2-8 declaration. A properly executed and witnessed declaration and 2-9 affidavit are prima facie evidence that the declarant was competent 2-10 at the time the declarant executed the declaration and that the 2-11 guardian named in the declaration would serve the best interests of 2-12 the ward. 2-13 (c) The declaration and affidavit may be filed with the 2-14 court at any time after the application for appointment of a 2-15 guardian is filed and before a guardian is appointed. If the 2-16 designated guardian does not qualify, is dead, refuses to serve, 2-17 resigns, or dies after being appointed guardian, or is otherwise 2-18 unavailable to serve as guardian, the court shall appoint the next 2-19 eligible designated alternate guardian named in the declaration. 2-20 If the guardian and all alternate guardians do not qualify, are 2-21 dead, refuse to serve, or later die or resign, the court shall 2-22 appoint another person to serve as otherwise provided by this code. 2-23 (d) The declarant may revoke a declaration in any manner 2-24 provided for the revocation of a will under Section 63 of this 2-25 code, including the subsequent reexecution of the declaration in 2-26 the manner required for the original declaration. 2-27 (e) A declaration and affidavit may be in any form adequate 2-28 to clearly indicate the declarant's intention to designate a 2-29 guardian for the declarant's child. The following form may, but 2-30 need not, be used: 2-31 DECLARATION OF APPOINTMENT OF GUARDIAN FOR 2-32 MY CHILDREN IN THE EVENT OF MY DEATH 2-33 I, __________, make this Declaration to appoint as guardian 2-34 for my child or children, listed as follows, in the event of my 2-35 death: 2-36 ____________________ ___________________ 2-37 ____________________ ___________________ 2-38 ____________________ ___________________ 2-39 (add blanks as appropriate) 2-40 I designate __________ to serve as guardian of the person of 2-41 my (child or children), __________ as first alternate guardian of 2-42 the person of my (child or children), __________ as second 2-43 alternate guardian of the person of my (child or children), and 2-44 __________ as third alternate guardian of the person of my (child 2-45 or children). 2-46 (If applicable) I designate __________ to serve as guardian 2-47 of the estate of my (child or children), __________ as first 2-48 alternate guardian of the estate of my (child or children), 2-49 __________ as second alternate guardian of the estate of my (child 2-50 or children), and __________ as third alternate guardian of the 2-51 estate of my (child or children). 2-52 If any guardian or alternate guardian dies, does not qualify, 2-53 or resigns, the next named alternate guardian becomes guardian of 2-54 my (child or children). 2-55 Signed this ___ day of __________, 19___. 2-56 ___________________________ 2-57 Declarant 2-58 ___________________________ _______________________ 2-59 Witness Witness 2-60 SELF-PROVING AFFIDAVIT 2-61 Before me, the undersigned authority, on this date personally 2-62 appeared the declarant, and ____________ and ____________ as 2-63 witnesses, and all being duly sworn, the declarant said that the 2-64 above instrument was his or her Declaration of Appointment of 2-65 Guardian for the Declarant's Children in the Event of Declarant's 2-66 Death and that the declarant had made and executed it for the 2-67 purposes expressed in the declaration. The witnesses declared to 2-68 me that they are each 14 years of age or older, that they saw the 2-69 declarant sign the declaration, that they signed the declaration as 2-70 witnesses, and that the declarant appeared to them to be of sound 3-1 mind. 3-2 ___________________________ 3-3 Declarant 3-4 ___________________________ _______________________ 3-5 Affiant Affiant 3-6 Subscribed and sworn to before me by the above named 3-7 declarant and affiants on this ____ day of __________, 19__. 3-8 ________________________ 3-9 Notary Public in and for 3-10 the State of Texas 3-11 My Commission expires: 3-12 ________________________ 3-13 SECTION 4. This Act takes effect September 1, 1995, and the 3-14 change in law made by this Act applies only to a will or written 3-15 declaration for the appointment of a guardian that is executed on 3-16 or after the effective date of this Act. A will or written 3-17 declaration for the appointment of a guardian that is executed 3-18 before the effective date of this Act is governed by the law as it 3-19 existed immediately before the effective date of this Act, and that 3-20 law is continued in effect for that purpose. 3-21 SECTION 5. The importance of this legislation and the 3-22 crowded condition of the calendars in both houses create an 3-23 emergency and an imperative public necessity that the 3-24 constitutional rule requiring bills to be read on three several 3-25 days in each house be suspended, and this rule is hereby suspended. 3-26 * * * * *