By Rosson S.B. No. 907
74R1249 MWV-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to standby guardianships for certain minors.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter XIII, Part 5, Texas Probate Code, is
1-5 amended by adding Subpart H to read as follows:
1-6 SUBPART H. STANDBY GUARDIANSHIP
1-7 Sec. 895. DEFINITIONS. In this subpart:
1-8 (1) "Mentally disabled" means chronically and
1-9 substantially unable, as a result of mental impairment, to
1-10 understand the nature and consequences of a decision concerning the
1-11 care of a minor, and a consequent inability to care for that minor.
1-12 (2) "Physically debilitated" means chronically and
1-13 substantially unable, as a result of a physically debilitating
1-14 illness, disease, or injury, to care for a minor.
1-15 (3) "Standby guardian" means a person appointed by a
1-16 court or designated by a parent or guardian of a minor under this
1-17 subpart to serve as standby guardian of a minor.
1-18 Sec. 896. APPLICABLE PROVISIONS. Except as otherwise
1-19 provided, the provisions of this chapter relating to guardianship
1-20 of persons and estates of incapacitated persons apply to a standby
1-21 guardianship.
1-22 Sec. 897. APPLICATION FOR COURT-APPOINTED STANDBY GUARDIAN.
1-23 (a) A minor's parent or guardian may file, in a court having
1-24 jurisdiction and venue, a written application for the appointment
2-1 of a standby guardian of the minor's person or estate, or of both
2-2 the minor's person and estate.
2-3 (b) The application must be sworn to by the applicant and
2-4 state:
2-5 (1) the information required by Section 682 of this
2-6 code;
2-7 (2) whether the standby guardian's term of appointment
2-8 begins:
2-9 (A) the date the applicant becomes mentally
2-10 disabled;
2-11 (B) the date the applicant dies;
2-12 (C) the date the standby guardian may exercise
2-13 authority over the minor as provided by the applicant's
2-14 authorization under Section 908 of this code; or
2-15 (D) the earlier of:
2-16 (i) the date the applicant becomes
2-17 mentally disabled;
2-18 (ii) the date the applicant dies; or
2-19 (iii) the date the standby guardian may
2-20 exercise authority over the minor as provided by the applicant's
2-21 authorization under Section 908 of this code;
2-22 (3) that the applicant suffers from a progressively
2-23 chronic or irreversibly fatal illness; and
2-24 (4) the name and address of the physician who
2-25 diagnosed the illness and the date of and basis for that diagnosis.
2-26 (c) The applicant may omit the identity of the illness from
2-27 the application.
3-1 Sec. 898. COURT APPEARANCE BY APPLICANT. The applicant is
3-2 not required to appear in court if the applicant is medically
3-3 incapable of making an appearance, except on a motion and showing
3-4 of good cause to the court.
3-5 Sec. 899. COURT ORDER FOR COURT-APPOINTED STANDBY GUARDIAN.
3-6 (a) The court shall appoint a standby guardian under an
3-7 application filed under Section 897 of this code if the court
3-8 finds:
3-9 (1) the requirements of Section 684 of this code have
3-10 been met;
3-11 (2) the applicant suffers from a progressively chronic
3-12 or irreversibly fatal illness; and
3-13 (3) it is in the best interest of the minor that the
3-14 court appoint a person as standby guardian.
3-15 (b) An order entered under this section must contain
3-16 findings of fact and specify:
3-17 (1) the information required by Section 692 of this
3-18 code;
3-19 (2) whether the term of the standby guardian's
3-20 appointment begins:
3-21 (A) the date the standby guardian receives the
3-22 determination of the applicant's mental disability under Section
3-23 907 of this code;
3-24 (B) the date the standby guardian is authorized
3-25 by the applicant to exercise authority over the minor as provided
3-26 by a document that meets the requirements of Section 908 of this
3-27 code;
4-1 (C) the date the applicant dies; or
4-2 (D) the earlier of:
4-3 (i) the date the standby guardian receives
4-4 the determination of the applicant's mental disability under
4-5 Section 907 of this code;
4-6 (ii) the date the applicant dies; or
4-7 (iii) the date the standby guardian is
4-8 authorized by the applicant to exercise authority over the minor as
4-9 provided by a document that meets the requirements of Section 908
4-10 of this code; and
4-11 (3) the information required by Section 693(d) of this
4-12 code.
4-13 (c) A standby guardian appointed under this section becomes
4-14 the minor's guardian under this chapter on the date the standby
4-15 guardian's term of appointment begins.
4-16 Sec. 900. REQUIRED FILING BY COURT-APPOINTED STANDBY
4-17 GUARDIAN. Not later than the 90th day after the date on which the
4-18 standby guardian receives the document evidencing the event on
4-19 which the standby guardian's appointment is based under Section
4-20 899(b)(2), the standby guardian shall file the document with the
4-21 court that ordered the standby guardianship.
4-22 Sec. 901. REMOVAL. The court may remove a standby guardian
4-23 appointed by the court under Section 899 of this code if:
4-24 (1) the standby guardian fails to comply with the
4-25 filing requirement of Section 900 of this code; or
4-26 (2) the court finds at any time before the beginning
4-27 of the standby guardian's term of appointment that the requirements
5-1 of Section 899(a) of this code are not met.
5-2 Sec. 902. RESIGNATION. A person appointed standby guardian
5-3 by a court under Section 899 of this code may resign as standby
5-4 guardian before the person's term of appointment begins by:
5-5 (1) executing a written letter of resignation;
5-6 (2) filing the letter of resignation with the court
5-7 that granted the standby guardianship; and
5-8 (3) promptly notifying the applicant or declarant of
5-9 the guardian's resignation.
5-10 Sec. 903. DESIGNATION OF STANDBY GUARDIAN BEFORE NEED
5-11 ARISES. (a) A minor's parent or guardian by written declaration
5-12 may designate a person to serve as standby guardian of the person
5-13 or estate of the minor, or of both the minor's person and estate.
5-14 The declaration must identify the declarant, the minor, and the
5-15 person to be designated as standby guardian.
5-16 (b) A declarant may designate an alternate standby guardian
5-17 in the declaration in the same manner the declarant designates a
5-18 standby guardian.
5-19 (c) The declarant, standby guardian, and alternate standby
5-20 guardian, if applicable, shall sign a declaration designating a
5-21 standby guardian in the presence of two credible witnesses who are
5-22 at least 14 years of age and are not named as standby guardian or
5-23 alternate standby guardian in the declaration.
5-24 (d) On the declarant's request, another person may sign the
5-25 declaration on the declarant's behalf in the presence of the
5-26 declarant and the two witnesses if the declarant is physically
5-27 unable to sign the declaration.
6-1 (e) The declaration must state that the declarant intends
6-2 for the standby guardian to become the minor's standby guardian if
6-3 the declarant:
6-4 (1) becomes mentally disabled;
6-5 (2) becomes physically debilitated and the declarant
6-6 authorizes the standby guardian to exercise authority over the
6-7 minor under Section 908 of this code; or
6-8 (3) dies before an application for appointment of a
6-9 guardian of the minor who is the subject of the declaration is
6-10 filed under Section 905 of this code.
6-11 (f) The declaration must have attached a self-proving
6-12 affidavit signed by the declarant, standby guardian, alternate
6-13 standby guardian, if applicable, and the witnesses attesting to the
6-14 competence of the declarant, standby guardian, and alternate
6-15 standby guardian, if applicable. A properly executed and witnessed
6-16 declaration and affidavit are prima facie evidence that the
6-17 declarant, standby guardian, and alternate standby guardian, if
6-18 applicable, were competent at the time the declarant, standby
6-19 guardian, and alternate standby guardian, if applicable, executed
6-20 the declaration and that the standby guardian and alternate standby
6-21 guardian, if applicable, named in the declaration would serve in
6-22 the minor's best interest.
6-23 (g) A declaration and affidavit may be in any form adequate
6-24 to clearly indicate the declarant's intention to designate a
6-25 standby guardian. The following forms may be used:
6-26 DECLARATION OF STANDBY GUARDIAN
6-27 I (name of parent or guardian) hereby designate (name, home
7-1 address, and telephone number of standby guardian) as standby
7-2 guardian of the person and property of my child(ren) (name of
7-3 child(ren)).
7-4 (You may, if you wish, provide that the standby guardian's
7-5 authority shall extend only to the person, or only to the property,
7-6 of your child, by crossing out "person" or "property", whichever is
7-7 inapplicable, above.)
7-8 The standby guardian's term of appointment shall begin if and
7-9 when: (1) my doctor concludes I am mentally disabled, and thus
7-10 unable to care for my child(ren) or ward; (2) my doctor concludes
7-11 that I am physically debilitated, and thus unable to care for my
7-12 child(ren) or ward and I consent in writing, before two witnesses,
7-13 to the standby guardian's authority taking effect; or (3) I die
7-14 before the beginning of a court proceeding to appoint a guardian of
7-15 the person or estate of my child(ren) or ward.
7-16 If the person I designate above is unable or unwilling to act
7-17 as guardian for my child(ren) or ward, I hereby designate (name,
7-18 home address, and telephone number of alternate standby guardian),
7-19 as standby guardian of my child(ren) or ward.
7-20 I also understand that my standby guardian's term of
7-21 appointment will expire 60 days after beginning unless by that date
7-22 he or she applies to a court for appointment as guardian.
7-23 I understand that I retain full parental rights even after
7-24 the beginning of the standby guardian's authority, and may revoke
7-25 the standby guardianship at any time.
7-26 Signature of Parent or Guardian:
7-27 Address:
8-1 Date:
8-2 Standby Guardian's Signature:
8-3 Alternate Standby Guardian's Signature:
8-4 I declare that the persons whose names appear above signed
8-5 this document in my presence, or the declarant was physically
8-6 unable to sign and asked another to sign this document, who did so
8-7 in my presence. I further declare that I am at least 14 years of
8-8 age and am not the person designated as standby guardian or
8-9 alternate standby guardian.
8-10 Witness's Signature:
8-11 Address:
8-12 Date:
8-13 Witness's Signature:
8-14 Address:
8-15 Date:
8-16 SELF-PROVING AFFIDAVIT
8-17 Before me, the undersigned authority, on this date personally
8-18 appeared the declarant, the standby guardian, and, if applicable,
8-19 the alternate standby guardian, and ____________ and ____________
8-20 as witnesses, and all being duly sworn, the declarant said that the
8-21 above instrument was his or her Declaration of Standby Guardian and
8-22 that the declarant had made and executed it for the purposes
8-23 expressed in the declaration. The witnesses declared to me that
8-24 they are each 14 years of age or older, that they saw the
8-25 declarant, the standby guardian, and, if applicable, the alternate
8-26 standby guardian, sign the declaration, that they signed the
8-27 declaration as witnesses, and that the declarant, the standby
9-1 guardian, and, if applicable, the alternate standby guardian,
9-2 appeared to them to be of sound mind.
9-3 ___________________________ __________________________
9-4 Declarant Standby Guardian
9-5 __________________________
9-6 Alternate Standby Guardian
9-7 ___________________________ __________________________
9-8 Affiant Affiant
9-9 Subscribed and sworn to before me by the above-named
9-10 declarant and affiants on this ____ day of __________, 19__.
9-11 ________________________
9-12 Notary Public in and for
9-13 the State of Texas
9-14 My Commission expires:
9-15 ________________________
9-16 Sec. 904. TERM OF APPOINTMENT OF DESIGNATED STANDBY
9-17 GUARDIAN. The term of a standby guardian appointed by a written
9-18 declaration under Section 903 of this code begins on the earlier
9-19 of:
9-20 (1) the date the standby guardian receives a copy of a
9-21 determination of the declarant's mental disability under Section
9-22 907 of this code;
9-23 (2) the date the standby guardian may exercise
9-24 authority over the minor because of the declarant's physical
9-25 debilitation as provided by a document that meets the requirements
9-26 of Section 908 of this code if the standby guardian has a copy of a
9-27 determination of the declarant's physical debilitation under
10-1 Section 907 of this code; or
10-2 (3) the date the declarant dies, if the declarant dies
10-3 before the beginning of a court proceeding under this chapter to
10-4 appoint a guardian for the minor who is the subject of the
10-5 declaration.
10-6 Sec. 905. DESIGNATED STANDBY GUARDIAN'S APPLICATION FOR
10-7 GUARDIANSHIP. (a) Not later than the 60th day after the date on
10-8 which the term of a standby guardian appointed by a written
10-9 declaration under Section 903 of this code begins, the standby
10-10 guardian shall file an application for the standby guardian's
10-11 appointment as guardian of the person or estate, or both the person
10-12 and estate, of the minor who is the subject of the declaration.
10-13 The standby guardian's term expires if the standby guardian fails
10-14 to timely file the application.
10-15 (b) The standby guardian's application seeking appointment
10-16 as guardian under this section must include:
10-17 (1) the information required by Section 682 of this
10-18 code;
10-19 (2) a copy of the written declaration designating the
10-20 person as the minor's standby guardian;
10-21 (3) a copy of the document evidencing the event on
10-22 which the standby guardian's appointment is based; and
10-23 (4) if the alternate standby guardian files the
10-24 application, a statement that the person designated as standby
10-25 guardian is unwilling or unable to act as standby guardian, and the
10-26 basis for that statement.
10-27 Sec. 906. COURT ORDER APPOINTING DESIGNATED STANDBY GUARDIAN
11-1 AS GUARDIAN. (a) The court shall grant the application filed by a
11-2 standby guardian under Section 905 of this code if the court finds:
11-3 (1) the requirements of Section 684 of this code have
11-4 been met;
11-5 (2) the declarant properly designated the applicant as
11-6 standby guardian in the declaration;
11-7 (3) the applicant has a copy of the document
11-8 evidencing the event on which the standby guardian's appointment is
11-9 based;
11-10 (4) it is in the best interest of the minor that the
11-11 court appoint a standby guardian for the minor; and
11-12 (5) if the applicant was designated as an alternate
11-13 standby guardian by the written declaration, that the person
11-14 designated as standby guardian in the declaration is unwilling or
11-15 unable to act as standby guardian.
11-16 (b) An order entered under this section must contain
11-17 findings of fact and specify the information required by Sections
11-18 692 and 693(d) of this code.
11-19 Sec. 907. DETERMINATION OF MENTAL DISABILITY OR PHYSICAL
11-20 DEBILITATION. (a) A determination of a person's mental disability
11-21 or physical debilitation for purposes of this subpart must:
11-22 (1) be made by the attending physician to a reasonable
11-23 degree of medical certainty;
11-24 (2) be in writing; and
11-25 (3) contain the attending physician's opinion
11-26 regarding the cause and nature of the person's mental disability or
11-27 physical debilitation and the extent and probable duration of the
12-1 mental disability or physical debilitation.
12-2 (b) The attending physician shall provide a copy of the
12-3 determination of the person's mental disability or physical
12-4 debilitation to the standby guardian, if the physician knows the
12-5 identity of the standby guardian.
12-6 (c) At a standby guardian's request, the attending physician
12-7 shall make a determination regarding a person's mental disability
12-8 or physical debilitation for purposes of this subpart.
12-9 (d) In this section, "attending physician" means:
12-10 (1) the physician having primary responsibility for
12-11 the treatment and care of a person;
12-12 (2) a physician who is responsible for the care and
12-13 treatment of a person if the person has more than one physician
12-14 responsible for the person's treatment and care;
12-15 (3) a physician acting on behalf of a physician who
12-16 has primary responsibility for a person's treatment and care; or
12-17 (4) a physician who is familiar with a person's
12-18 condition if no physician has primary responsibility for the
12-19 person's treatment and care.
12-20 Sec. 908. REQUIREMENTS OF AUTHORIZATION FOR APPOINTMENT OF
12-21 STANDBY GUARDIAN. (a) A minor's parent or guardian may designate
12-22 the date a standby guardian may exercise authority over the minor
12-23 by signing a written authorization for that purpose in the presence
12-24 of two credible witnesses who are at least 14 years of age.
12-25 (b) Another person may sign the authorization described by
12-26 this section on behalf of the parent or guardian making the
12-27 authorization if:
13-1 (1) the person signs the authorization in the presence
13-2 of the parent or guardian making the authorization and the two
13-3 witnesses; and
13-4 (2) the parent or guardian making the authorization is
13-5 physically unable to sign the authorization.
13-6 Sec. 909. NOTICE OF TERM OF APPOINTMENT. (a) A person who
13-7 is appointed standby guardian under this subpart because a minor's
13-8 parent or guardian was determined to be mentally disabled under
13-9 Section 907 of this code shall inform the parent or guardian who is
13-10 determined to be mentally disabled of:
13-11 (1) the date on which the standby guardian's term of
13-12 appointment is scheduled to begin; and
13-13 (2) the parent's or guardian's right to promptly
13-14 revoke the standby guardian's appointment after the date on which
13-15 the standby guardian receives the determination of the parent's or
13-16 guardian's mental disability under Section 907 of this code.
13-17 (b) The standby guardian is not required to provide a parent
13-18 or guardian the information required under this section if the
13-19 parent or guardian does not have the ability to comprehend the
13-20 information.
13-21 Sec. 910. REVOCATION. (a) A person who applies for a
13-22 court-ordered standby guardianship under Section 897 of this code
13-23 may revoke the standby guardianship by:
13-24 (1) executing a written revocation;
13-25 (2) filing the revocation with the court that granted
13-26 the guardianship; and
13-27 (3) promptly notifying the standby guardian of the
14-1 person's revocation.
14-2 (b) A person who appoints a standby guardian by written
14-3 declaration under Section 903 of this code may revoke the standby
14-4 guardianship in the following manner:
14-5 (1) if the standby guardian has not filed an
14-6 application to be appointed the minor's guardian under Section 905
14-7 of this code, by notifying the standby guardian in any manner that
14-8 indicates the person's specific intent to revoke the standby
14-9 guardianship; or
14-10 (2) if the standby guardian has filed an application
14-11 to be appointed the minor's guardian under Section 905 of this
14-12 code, by:
14-13 (A) executing a written revocation;
14-14 (B) filing the revocation with the court that
14-15 granted the guardianship; and
14-16 (C) promptly notifying the standby guardian of
14-17 the person's revocation.
14-18 Sec. 911. CONCURRENT AUTHORITY WITH PARENT OR OTHER
14-19 GUARDIAN. A minor's standby guardian serving under this subpart
14-20 for a reason other than the death of the minor's parent or guardian
14-21 has concurrent authority over the minor under this chapter with the
14-22 minor's parent or other guardian.
14-23 SECTION 2. The importance of this legislation and the
14-24 crowded condition of the calendars in both houses create an
14-25 emergency and an imperative public necessity that the
14-26 constitutional rule requiring bills to be read on three several
14-27 days in each house be suspended, and this rule is hereby suspended,
15-1 and that this Act take effect and be in force from and after its
15-2 passage, and it is so enacted.