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 * * * * *