By Moncrief S.B. No. 1239
77R4016 KLA-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to stand-by guardianships for certain minors.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Part 5, Chapter XIII, Texas Probate Code, is
1-5 amended by adding Subpart G to read as follows:
1-6 SUBPART G. STAND-BY GUARDIANSHIPS
1-7 Sec. 891. DEFINITIONS. In this subpart:
1-8 (1) "Alternate" means a person with the rights,
1-9 responsibilities, and qualifications of a stand-by guardian who
1-10 will serve as a stand-by guardian if the primary designated
1-11 stand-by guardian refuses or is unable to serve.
1-12 (2) "Debilitation" means a mental impairment or
1-13 physical illness, disease, or injury that results in a person's
1-14 chronic and substantive inability to care for a minor.
1-15 (3) "Designation" means a written declaration executed
1-16 as provided by this subpart by a parent or guardian of a minor
1-17 designating a person to serve as stand-by guardian of the person or
1-18 of the estate of the minor, or both, or as an alternate stand-by
1-19 guardian.
1-20 (4) "Designator" means a parent or legal guardian who
1-21 executes a designation.
1-22 (5) "Determination of debilitation" means a written
1-23 determination made by a physician stating that a designator suffers
1-24 from a physical or mental debilitation, regardless of whether the
2-1 illness or impairment is identified.
2-2 (6) "Stand-by guardian" means a person designated by a
2-3 parent or guardian of a minor, or appointed by a court under this
2-4 subpart, to serve as a guardian or co-guardian on the occurrence of
2-5 a triggering event as provided by the designation.
2-6 (7) "Triggering event" means an event specified in a
2-7 designation, including the debilitation or death of a minor's
2-8 parent or guardian, the occurrence of which authorizes the stand-by
2-9 guardian to serve as the guardian of a minor.
2-10 Sec. 892. APPLICABILITY OF OTHER LAW. (a) Except as
2-11 provided by Subsection (b), the provisions of this chapter apply to
2-12 a stand-by guardian who serves as guardian of a minor on the
2-13 occurrence of a triggering event, as provided by the designation in
2-14 which the stand-by guardian is designated.
2-15 (b) To the extent of any conflict between this subpart and
2-16 any other provision of this chapter, this subpart controls.
2-17 Sec. 893. CONSTRUCTION. This subpart may not be construed to
2-18 limit a person's parental rights with respect to the person's child
2-19 or to relieve a person of the duty to support the person's minor
2-20 child as provided by other law.
2-21 Sec. 894. DESIGNATION OF STAND-BY GUARDIAN. (a) A parent or
2-22 guardian of a minor may designate a stand-by guardian by means of a
2-23 written designation unless the minor has another parent who:
2-24 (1) has not had the person's parental rights
2-25 terminated; and
2-26 (2) can be located.
2-27 (b) Notwithstanding Subsection (a), a parent or guardian may
3-1 designate a stand-by guardian for a minor if the parent or guardian
3-2 has the written consent of the minor's other parent.
3-3 Sec. 895. CONTENTS AND EXECUTION OF DESIGNATION OF STAND-BY
3-4 GUARDIAN. (a) A designation must state:
3-5 (1) the parent or guardian executing the designation;
3-6 (2) the minor for whom the stand-by guardian is
3-7 designated;
3-8 (3) any other parent or guardian of the minor;
3-9 (4) the person designated as the stand-by guardian;
3-10 (5) the person designated as the alternate stand-by
3-11 guardian, if any; and
3-12 (6) the triggering event, the occurrence of which
3-13 authorizes the stand-by guardian to serve as the minor's guardian.
3-14 (b) Except as provided by Subsection (c), the designator,
3-15 stand-by guardian, and alternate stand-by guardian, if any, must
3-16 each sign the designation in the presence of two credible
3-17 witnesses. Each witness must be at least 14 years of age and may
3-18 not be designated in the designation as the stand-by guardian or
3-19 alternate stand-by guardian.
3-20 (c) If the designator is physically unable to sign the
3-21 designation, and on the designator's request, another person may
3-22 sign the designation on the designator's behalf in the presence of
3-23 the two witnesses described by Subsection (b).
3-24 (d) The designation must state the designator's intention
3-25 that the person designated as the stand-by guardian serve as the
3-26 guardian of the person or of the estate of the minor, or both, if
3-27 the designator:
4-1 (1) becomes mentally debilitated;
4-2 (2) becomes physically debilitated and the designator
4-3 consents in writing to the stand-by guardian serving as the minor's
4-4 guardian; or
4-5 (3) dies before a person files an application under
4-6 Section 907 of this code for the appointment of a guardian of the
4-7 minor named in the designation.
4-8 (e) The designation must have an attached self-proving
4-9 affidavit signed by the designator, the person designated as the
4-10 stand-by guardian, the person designated as the alternate stand-by
4-11 guardian, if any, and each witness described by Subsection (b).
4-12 (f) A properly executed and witnessed designation and
4-13 affidavit are prima facie evidence that:
4-14 (1) the designator was competent at the time the
4-15 designator executed the designation; and
4-16 (2) the person designated as the stand-by guardian and
4-17 the person designated as the alternate stand-by guardian, if any,
4-18 would serve as guardian of the minor in the minor's best interest.
4-19 Sec. 896. FORM OF DESIGNATION OF STAND-BY GUARDIAN. A
4-20 designation and affidavit may be in any form adequate to clearly
4-21 indicate the designator's intention to designate a stand-by
4-22 guardian. The following form may be used:
4-23 DESIGNATION OF STAND-BY GUARDIAN
4-24 I, ________________ (insert name of parent or guardian),
4-25 hereby designate __________ (insert name, address, and telephone
4-26 number of the person to be designated as the stand-by guardian) as
4-27 the stand-by guardian of the __________ (insert "person," "estate,"
5-1 or "person and estate") of __________ (insert name of the
5-2 designator's child, children, or ward).
5-3 The stand-by guardian's term begins if:
5-4 (1) my physician concludes that I am mentally disabled
5-5 and unable to care for my child, children, or ward;
5-6 (2) my physician concludes that I am physically
5-7 debilitated and unable to care for my child, children, or ward, and
5-8 I consent in writing in the presence of two witnesses to the person
5-9 designated as the stand-by serving as the guardian of my child,
5-10 children, or ward; or
5-11 (3) I die before an application for the appointment of
5-12 a guardian is filed.
5-13 If the person designated to serve as the stand-by guardian is
5-14 unable or unwilling to serve as the guardian of my child, children,
5-15 or ward, I designate __________ (insert name, address, and
5-16 telephone number of alternate stand-by guardian) as the alternate
5-17 stand-by guardian for my child, children, or ward.
5-18 I HEREBY REVOKE ALL WILLS AND CODICILS TO THE EXTENT THAT
5-19 THERE IS A CONFLICT BETWEEN THOSE DOCUMENTS AND THIS EXECUTED
5-20 DESIGNATION OF STAND-BY GUARDIAN. (Optional)
5-21 I am the __________ (insert designator's relationship to the
5-22 child, children, or ward) of __________ (insert name of child,
5-23 children, or ward).
5-24 __________ (Insert name of minors' other parent or guardian,
5-25 address, and telephone number) is the __________ (insert "father,"
5-26 "mother," or "guardian," as applicable) of __________ (insert name
5-27 of child, children, or ward). (Insert the following, as
6-1 applicable:)
6-2 _____ He/she died on __________ (insert date of death).
6-3 _____ His/her parental rights were terminated on __________
6-4 (insert date of final order terminating the parent-child
6-5 relationship).
6-6 _____ He/she cannot be located. I understand that a parent
6-7 whose rights have not been terminated must be given notice of this
6-8 designation in accordance with the Texas Rules of Civil Procedure
6-9 or the application for approval of this designation will not be
6-10 granted by the court.
6-11 _____ He/she has given written, notarized consent to this
6-12 designation of a stand-by guardian and that is attached to this
6-13 designation.
6-14 I understand that the stand-by guardian's term expires on the
6-15 91st day after the date that term begins unless the stand-by
6-16 guardian has filed an application for appointment as guardian of
6-17 the minor.
6-18 I understand that I retain my parental rights during the
6-19 stand-by guardian's term, and I may revoke the stand-by
6-20 guardianship at any time.
6-21 Signature of Designator:___________
6-22 Address:_______________________________________________
6-23 Date:____________________
6-24 Stand-by Guardian's Signature:_________________________
6-25 Alternate Stand-by Guardian's Signature:_______________
6-26 I declare that the persons whose names appear above signed
6-27 this document in my presence, or the designator was physically
7-1 unable to sign and consented to another person signing this
7-2 document on the designator's behalf, who signed this document in my
7-3 presence. I further declare that I am at least 14 years of age and
7-4 am not the person designated as stand-by guardian or alternate
7-5 stand-by guardian.
7-6 Witness Signature:_____________________________________
7-7 Address:_______________________________________________
7-8 Witness Signature:_____________________________________
7-9 Address:_______________________________________________
7-10 Date:____________________
7-11 Self-Proving Affidavit
7-12 Before me, the undersigned authority, on this date personally
7-13 appeared ______________________, the designator, and
7-14 ____________________, the stand-by guardian, and
7-15 ____________________, the alternate stand-by guardian, if any, and
7-16 ____________________ and ____________________ as witnesses, and all
7-17 being duly sworn the designator stated that the above instrument
7-18 was the designator's Designation of Stand-by Guardian and the
7-19 designator executed the designation for the purposes expressed in
7-20 the designation. Each witness declared to me that the witness is
7-21 14 years of age or older, the witness saw the designator, the
7-22 stand-by guardian, and the alternate stand-by guardian, if any,
7-23 sign the designation, the witness signed the designation as a
7-24 witness, and the designator, the stand-by guardian, and the
7-25 alternate stand-by guardian, if any, appeared to be of sound mind.
7-26 _____________________ ____________________
7-27 Designator Stand-by Guardian
8-1 ____________________
8-2 Alternate Stand-by Guardian
8-3 _____________________ ____________________
8-4 Affiant Affiant
8-5 Subscribed and sworn to before me by the above-named
8-6 designator and affiants on this _____ day of __________, 20__.
8-7 ____________________
8-8 Notary public in and for the State
8-9 of Texas
8-10 My commission expires: ______________
8-11 Sec. 897. CONFLICT WITH TESTAMENTARY PROVISIONS. If a parent
8-12 or guardian appointed a person in a will or codicil to serve as the
8-13 guardian of the person or the estate of a minor and the parent
8-14 designated a different person in a Designation of Stand-by Guardian
8-15 to serve in that capacity, the later-executed document controls.
8-16 Sec. 898. REVOCATION. A person who designates a stand-by
8-17 guardian may revoke that designation in the following manner:
8-18 (1) if the stand-by guardian has not filed an
8-19 application to be appointed the minor's guardian under Section 907
8-20 of this code, by notifying the stand-by guardian in a manner that
8-21 indicates the person's intent to revoke the stand-by guardianship;
8-22 or
8-23 (2) if the stand-by guardian has filed an application
8-24 to be appointed the minor's guardian under Section 907 of this
8-25 code, by:
8-26 (A) executing a written revocation;
8-27 (B) filing the revocation with the court that
9-1 appointed the stand-by guardian as the minor's guardian; and
9-2 (C) promptly notifying the stand-by guardian of
9-3 the revocation.
9-4 Sec. 899. BOND. (a) A stand-by guardian may not be required
9-5 to post bond before the occurrence of a triggering event as
9-6 provided by the designation.
9-7 (b) A court may require a stand-by guardian of the estate of
9-8 a minor to post bond, but may not require a stand-by guardian of
9-9 the person of a minor to post bond.
9-10 Sec. 900. TERM OF STAND-BY GUARDIAN. (a) If the Designation
9-11 of Stand-by Guardian is approved by the court under Section 903 of
9-12 this code, the term of a stand-by guardian begins on the earlier of
9-13 the date on which:
9-14 (1) the stand-by guardian received a copy of a
9-15 determination of the designator's mental debilitation under Section
9-16 909 of this code; or
9-17 (2) the stand-by guardian may exercise authority over
9-18 the minor because of the designator's physical debilitation, if the
9-19 stand-by guardian has a copy of a determination of the designator's
9-20 physical debilitation under Section 909 of this code.
9-21 (b) If the designator dies before the Designation of
9-22 Stand-by Guardian is approved by the court under Section 903 of
9-23 this code, the stand-by guardian's term begins on the date of the
9-24 designator's death.
9-25 Sec. 901. RESTORATION OF DESIGNATOR'S CAPACITY. (a) If a
9-26 designator's physician determines that the designator has regained
9-27 capacity, the stand-by guardian's term ends.
10-1 (b) The designator, on the failure or refusal of the
10-2 stand-by guardian to immediately return the minor to the
10-3 designator's care on request, may request the court to conduct an
10-4 emergency hearing on the matter.
10-5 Sec. 902. APPLICATION FOR COURT APPROVAL OF STAND-BY
10-6 GUARDIAN. (a) A designator may file an application for court
10-7 approval of an executed Designation of Stand-by Guardian at any
10-8 time before a triggering event occurs. The designator's
10-9 application for court approval must include:
10-10 (1) the information required by Section 682 of this
10-11 code;
10-12 (2) a copy of the Designation of Stand-by Guardian;
10-13 (3) a statement that the applicant suffers from a
10-14 chronic or fatal illness; and
10-15 (4) the name and address of the physician who
10-16 diagnosed the illness, the date on which the diagnosis was made,
10-17 and the medical bases for the diagnosis.
10-18 (b) In providing the information required by Subsection
10-19 (a)(4) of this section the applicant is not required to identify
10-20 the illness from which the applicant suffers.
10-21 Sec. 903. ORDER APPROVING STAND-BY GUARDIAN. (a) The court
10-22 shall approve the Designation of Stand-by Guardian if the court
10-23 finds that:
10-24 (1) the requirements of Section 684 of this code are
10-25 met;
10-26 (2) the applicant suffers from a chronic or fatal
10-27 illness or mental impairment; and
11-1 (3) the approval is in the minor's best interest.
11-2 (b) The court may approve the designation without a hearing
11-3 if the designator is the minor's only living parent, the parental
11-4 rights of the minor's other parent have been terminated, or each
11-5 party consents to the approval.
11-6 Sec. 904. EVIDENCE OF TRIGGERING EVENT REQUIRED. Not later
11-7 than the 90th day after the date on which the stand-by guardian
11-8 receives the document that is evidence of the triggering event that
11-9 begins the stand-by guardian's term, the stand-by guardian shall
11-10 file the document with the court that issued the order approving
11-11 the Designation of Stand-by Guardian.
11-12 Sec. 905. CONCURRENT AUTHORITY. (a) A stand-by guardian's
11-13 authority under the terms of a Designation of Stand-by Guardian
11-14 does not limit the rights of a parent or guardian with respect to
11-15 the minor.
11-16 (b) A stand-by guardian has concurrent authority with
11-17 respect to the minor with the minor's parent or guardian, except
11-18 when the stand-by guardian's term begins as a result of the death
11-19 of that parent or guardian.
11-20 Sec. 906. RESIGNATION BEFORE TERM BEGINS. A person approved
11-21 as a stand-by guardian under Section 903 of this code may resign as
11-22 stand-by guardian before the person's term begins by:
11-23 (1) filing a letter of resignation with the court that
11-24 approved the designation; and
11-25 (2) notifying the designator promptly of the
11-26 resignation.
11-27 Sec. 907. APPLICATION FOR GUARDIANSHIP BY STAND-BY GUARDIAN.
12-1 (a) If the Designation of Stand-by Guardian is approved by the
12-2 court before a triggering event specified in the designation
12-3 occurs, the designated stand-by guardian shall file an application
12-4 for appointment by the court as guardian of the person or of the
12-5 estate, or both, of the minor who is the subject of the designation
12-6 not later than the 90th day after the date the stand-by guardian's
12-7 term begins under the designation.
12-8 (b) The stand-by guardian's application for appointment as
12-9 guardian of the minor must include:
12-10 (1) the information required by Section 682 of this
12-11 code;
12-12 (2) a copy of the Designation of Stand-by Guardian
12-13 designating the person as the stand-by guardian for the minor;
12-14 (3) a copy of the document evidencing the triggering
12-15 event that began the stand-by guardian's term; and
12-16 (4) if the alternate stand-by guardian files the
12-17 application, a statement that the person designated as stand-by
12-18 guardian refuses or is unable to serve as the minor's guardian and
12-19 a description of the bases for that statement.
12-20 (c) The term of a stand-by guardian who does not file an
12-21 application as required by Subsection (a) of this section ends on
12-22 the 91st day after the date on which that term began.
12-23 Sec. 908. APPOINTMENT OF STAND-BY GUARDIAN AS GUARDIAN. (a)
12-24 The court shall appoint as guardian of a minor the stand-by
12-25 guardian who files an application under Section 907 of this code,
12-26 if the court makes the findings required by Section 684 of this
12-27 code and finds that:
13-1 (1) the designator designated the applicant as
13-2 stand-by guardian in the designation;
13-3 (2) the applicant has a copy of the document
13-4 evidencing the triggering event that began the stand-by guardian's
13-5 term;
13-6 (3) the appointment is in the minor's best interest;
13-7 and
13-8 (4) if the applicant was designated as an alternate
13-9 stand-by guardian in the designation, the person designated as
13-10 stand-by guardian refuses or is unable to serve as guardian.
13-11 (b) The court may grant the application without a hearing if
13-12 the designator is the minor's only living parent, the parental
13-13 rights of the minor's other parent have been terminated, or each
13-14 party consents to the approval.
13-15 Sec. 909. DETERMINATION OF PHYSICAL OR MENTAL DEBILITATION.
13-16 (a) A determination of a designator's mental or physical
13-17 debilitation must:
13-18 (1) be made to a reasonable degree of medical
13-19 certainty by a physician who is familiar with the designator's
13-20 medical condition;
13-21 (2) be in writing; and
13-22 (3) contain the physician's opinion regarding the
13-23 cause and nature of the designator's debilitation and the extent
13-24 and probable duration of the debilitation.
13-25 (b) The physician shall provide a copy of the determination
13-26 of the designator's debilitation to the stand-by guardian if the
13-27 physician knows of the existence and identity of that person.
14-1 (c) The physician shall make a determination regarding a
14-2 designator's debilitation for purposes of this subpart at the
14-3 request of the stand-by guardian.
14-4 Sec. 910. CONSENT FOR APPOINTMENT OF STAND-BY GUARDIAN. (a)
14-5 The parent or guardian of a minor may designate the date on which
14-6 the term of the stand-by guardian begins by signing a written
14-7 consent for that purpose in the presence of two credible witnesses,
14-8 each of whom is at least 14 years of age and is not designated in
14-9 the Designation of Stand-by Guardian as the stand-by guardian or
14-10 alternate stand-by guardian.
14-11 (b) Another person may sign the consent described by this
14-12 section on behalf of the parent or guardian if:
14-13 (1) the person signs the consent in the presence of
14-14 the parent or guardian and both witnesses; and
14-15 (2) the parent or guardian is physically unable to
14-16 sign the consent.
14-17 Sec. 911. NOTICE OF TERM. (a) A person who serves as the
14-18 stand-by guardian of a minor because the minor's parent or guardian
14-19 is determined to be mentally debilitated shall inform that parent
14-20 or guardian of:
14-21 (1) the date on which the stand-by guardian's term of
14-22 appointment is scheduled to begin; and
14-23 (2) the parent or guardian's right to revoke the
14-24 stand-by guardian's appointment after the date on which the
14-25 stand-by guardian receives the determination of the parent or
14-26 guardian's mental debilitation under Section 909 of this code.
14-27 (b) The stand-by guardian is not required to provide a
15-1 parent or guardian the information required under this section if
15-2 the parent or guardian is unable to comprehend the information.
15-3 SECTION 2. Section 676(a), Texas Probate Code, is amended to
15-4 read as follows:
15-5 (a) Except as provided by Subpart G, Part 5, of this chapter
15-6 and Section 680 of this code, the selection of a guardian for a
15-7 minor is governed by this section.
15-8 SECTION 3. This Act takes effect immediately if it receives
15-9 a vote of two-thirds of all the members elected to each house, as
15-10 provided by Section 39, Article III, Texas Constitution. If this
15-11 Act does not receive the vote necessary for immediate effect, this
15-12 Act takes effect September 1, 2001.