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A BILL TO BE ENTITLED
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AN ACT
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relating to authorizing a power of attorney for a caregiver of a |
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child. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 151, Family Code, is amended by |
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designating Sections 151.001, 151.002, and 151.003 as Subchapter A |
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and adding a heading to Subchapter A to read as follows: |
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SUBCHAPTER A. RIGHTS AND DUTIES IN GENERAL |
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SECTION 2. Chapter 151, Family Code, is amended by adding |
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Subchapter B to read as follows: |
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SUBCHAPTER B. POWER OF ATTORNEY FOR CAREGIVER OF CHILD |
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Sec. 151.051. EFFECT OF POWER OF ATTORNEY. A power of |
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attorney under this subchapter is effective only if: |
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(1) at least one parent of a child has executed a power |
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of attorney for a caregiver of the child; and |
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(2) the parent who did not execute the power of |
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attorney is not willing or able to execute the power of attorney or |
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make decisions regarding the care of the parent's child. |
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Sec. 151.052. AUTHORIZATION FOR POWER OF ATTORNEY FOR |
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CAREGIVER OF CHILD. (a) A person may execute a power of attorney |
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appointing another person as the person's agent to make decisions |
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regarding the person's child. |
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(b) The power of attorney must be witnessed by two witnesses |
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who are at least 18 years of age, neither of whom is the agent, and |
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at least one of whom is not related by blood or marriage to the child |
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or the agent. |
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(c) If one parent executes the power of attorney, and the |
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other parent does not, the parent executing the power of attorney |
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must provide a written explanation on the power of attorney that the |
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other parent is not willing or able to sign the power of attorney or |
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make decisions regarding the parent's child. |
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Sec. 151.053. TERMINATION OF AGENT'S AUTHORITY. The |
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authority of an agent appointed in a power of attorney for the |
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caregiver of a child executed by the child's parent or parents |
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terminates: |
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(1) on the appointment and qualification of a guardian |
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of the person appointed for the child under Chapter XIII, Texas |
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Probate Code; or |
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(2) on written revocation of the power of attorney |
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witnessed by two witnesses who are at least 18 years of age, neither |
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of whom is the agent, and at least one of whom is not related by |
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blood or marriage to the child or the agent: |
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(A) by both parents who signed the power of |
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attorney; |
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(B) by the parent who signed the power of |
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attorney; or |
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(C) by the parent who did not sign the power of |
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attorney if the written revocation contains a statement that the |
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parent is able to make decisions for the parent's child. |
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Sec. 151.054. USE OF POWER OF ATTORNEY IN APPOINTING |
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GUARDIAN OF THE PERSON FOR CHILD. (a) A power of attorney executed |
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under this subchapter is not considered a written declaration of |
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appointment of a guardian authorized by Section 676(d), Texas |
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Probate Code. |
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(b) If a person who executes a power of attorney under this |
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subchapter does not execute a written declaration of appointment of |
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a guardian authorized by Section 676(d), Texas Probate Code, and an |
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application for the appointment of a guardian of the person for the |
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child is pending under Chapter XIII, Texas Probate Code, the court |
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may consider the person appointed as the agent under the power of |
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attorney in appointing a qualified person to serve as guardian of |
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the person for the child under Section 676(c), Texas Probate Code. |
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Sec. 151.055. DISCLOSURE STATEMENT. A disclosure statement |
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must be provided with the Power of Attorney for Caregiver of Child. |
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The disclosure statement must be in substantially the following |
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form: |
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"THE POWER OF ATTORNEY FOR CAREGIVER OF CHILD IS A VERY |
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IMPORTANT LEGAL DOCUMENT. BEFORE SIGNING THE POWER OF ATTORNEY FOR |
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CAREGIVER OF CHILD, YOU MUST READ THIS ENTIRE DISCLOSURE STATEMENT. |
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YOU DO NOT NEED TO HAVE AN ATTORNEY PREPARE THE POWER OF ATTORNEY |
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FOR CAREGIVER OF CHILD, BUT YOU CAN IF YOU WANT TO. |
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"WARNING: Under Texas law, leaving your child with someone |
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voluntarily may affect your parental rights to possession of the |
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child. You are encouraged to consult an attorney. |
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"Except to the extent that you limit the authority of your |
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agent, the person you name as your agent may make decisions for you |
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about each named child in accordance with your choices in this |
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document. |
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"The agent's authority begins when the Power of Attorney for |
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Caregiver of Child is executed (fully signed and witnessed). |
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"If only one parent signs the Power of Attorney for Caregiver |
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of Child, that parent shall state in writing the reason or reasons |
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why the other parent did not sign. |
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"The person you appoint as agent should be someone you know |
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and trust. The person must be at least 18 years of age. You should |
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inform the person you appoint that you want the person to have the |
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powers that you choose to give in the Power of Attorney for |
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Caregiver of Child. Your agent must comply with limitations on the |
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authority of the agent, which are set forth in the area of the power |
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of attorney titled 'Limitations on Agent.' You should discuss the |
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Power of Attorney for Caregiver of Child thoroughly with your agent |
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and give your agent a signed copy. You should write on the power of |
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attorney the names of people and institutions who have signed |
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copies. Your agent is not liable for the expenses of raising your |
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child except in certain situations. You will continue to be |
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responsible for these expenses. |
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"After you have signed the Power of Attorney for Caregiver of |
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Child, you have the right to make decisions at any time about your |
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child unless a court order provides otherwise, even if your agent |
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disagrees. |
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"You have the right to revoke the authority granted to your |
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agent. This power of attorney can only be revoked in writing. This |
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power of attorney can be revoked, by the parent or parents who |
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signed the power of attorney, in a writing witnessed by two |
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witnesses who are at least 18 years of age, neither of whom is the |
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agent, and at least one of whom is not related by blood or marriage |
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to the child or the agent. |
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"If the parent who did not execute the power of attorney is |
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willing and able to make decisions regarding the care of the child, |
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that parent may revoke the power of attorney. The revocation must |
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be in writing and witnessed by two witnesses who are at least 18 |
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years of age, neither of whom is the agent, and at least one of whom |
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is not related by blood or marriage to the child or the agent. |
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"You should put a time limit on the power of attorney. If the |
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time limit occurs while the child is still in the care of the person |
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to whom you have given authority, you must execute a new Power of |
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Attorney for Caregiver of Child if you want the caregiver to |
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continue to have authority. |
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"In the power of attorney, you must specify whether the power |
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of attorney continues in effect until the expiration date if you |
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become disabled or incapacitated after signing the power of |
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attorney. |
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"If you revoke the Power of Attorney for Caregiver of Child |
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you should give notice of the revocation to your agent and anyone |
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else that has a copy, including educational institutions, banks, or |
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other businesses or people. |
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"The Power of Attorney for Caregiver of Child may not be |
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changed or modified. If you want to make changes, you must execute a |
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new one. |
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"You may want to designate an alternate agent in case your |
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agent is unwilling, unable, or ineligible to act as your agent. Any |
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alternate agent you designate has the same authority to make |
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decisions for you concerning each named child. |
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"To the caregiver named as an agent in this power of attorney: |
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"This power of attorney does not give you possessory |
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conservatorship or managing conservatorship of the child. This |
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power of attorney does not stop a parent from resuming possession |
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and caregiving immediately at any time the parent requests return |
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of the child. Failure to return each named child on request of the |
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parent may constitute a crime, unless there is a court order that |
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provides otherwise. |
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"Caution: The caregiver receiving authority under this power |
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of attorney may become liable for expenses relating to the child if: |
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"(1) the caregiver signs a statement or a contract in |
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the caregiver's name for services or goods for the child; |
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"(2) the caregiver is present when services or goods |
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are provided to the child unless the services or goods are fully |
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paid for with money from a parent or the child; or |
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"(3) the caregiver authorizes the child to tell a |
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provider of services or goods that the caregiver is responsible for |
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the cost of the services or goods." |
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Sec. 151.056. FORM. A Power of Attorney for Caregiver of |
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Child must be in substantially the following form: |
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"POWER OF ATTORNEY FOR CAREGIVER OF CHILD |
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"WARNING: If there is a pending suit affecting the |
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parent-child relationship concerning a child named in this Power of |
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Attorney for Caregiver of Child, or other pending litigation in any |
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court concerning custody, possession, or placement of the child, or |
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access to or visitation with the child or if a court has continuing |
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jurisdiction concerning the child, this Power of Attorney for |
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Caregiver of Child cannot be executed unless the court by written |
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order allows it to be executed. |
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"1. PARENT INFORMATION. |
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"My name is (print): _____________________________ |
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"I am a parent of the child or children (hereinafter referred |
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to as 'child') named in this Power of Attorney for Caregiver of |
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Child. |
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"My address: _____________________________ |
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"Telephone number or best way to contact: __________________ |
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"Driver's license number and issuing state or other form of |
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identification: _______________________ |
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"Name of other parent: _____________________________ |
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"Address: _____________________________ |
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"Telephone number: _____________________________ |
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"Required: |
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"___ The other parent has signed this power of attorney. |
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"___ The other parent has not signed this power of attorney |
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because: |
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________________________________________________________________ |
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________________________________________________________________ |
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________________________________________________________________ |
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"Note: If only one parent signs this power of attorney, the |
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power of attorney must be witnessed by two witnesses to be |
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effective. |
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"2. ACKNOWLEDGMENT OF DISCLOSURE STATEMENT. |
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"____ (initial) I have read and understand the information |
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contained in the disclosure statement attached to and made part of |
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this power of attorney. |
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"____ (other parent initial) has read and understands the |
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information contained in the disclosure statement attached to and |
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made part of this power of attorney. |
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"3. PRIOR COURT ORDERS CONCERNING CHILD (initial the correct |
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choice). |
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"____ NO court has issued orders about my child and there are |
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no child support orders in effect with respect to my child. |
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"____ A court HAS issued orders about my child: |
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"Cause number: ________________, ________________ County, |
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Texas. |
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"__ The order grants me the right to determine the primary |
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physical residence of my child. |
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"__ I have provided my agent with a copy of the order. |
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"4. DESIGNATION OF AGENT. |
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"I do hereby appoint (print name of agent) __________________ |
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as my agent to act on behalf of my child as stated below, unless I |
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state otherwise in this document. |
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"Agent's address: _____________________________ |
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"Driver's license number and issuing state or other form of |
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identification: _____________________________ |
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"Telephone number or best way to contact: __________________ |
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"5. CHILDREN COVERED BY THIS POWER OF ATTORNEY. |
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"Please provide the following information for each child for |
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whom this power of attorney is to be effective. Attach additional |
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sheets if necessary. |
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"Child's name (first, middle, last): ______________________ |
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"Date of birth: ________________________ |
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"6. POWERS (AREAS OF AUTHORITY). |
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"My agent is hereby appointed in my place to perform the |
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following acts on behalf of each child named above: |
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"Initial ONLY those areas of authority that you wish your |
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agent to have. Draw vertical or wavy lines through each area of |
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authority that you do not want your agent to have. |
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"____ To maintain physical possession of the child. |
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"____ To designate the primary residence of the child in |
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Texas (Note: if there are prior court orders that limit where your |
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child can live, your agent is also limited by those orders). |
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"____ To provide care, control, protection, and reasonable |
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discipline of the child. |
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"____ To direct the moral and religious training of the |
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child. |
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"____ To arrange for child care or preschool for the child, if |
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appropriate. |
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"____ To make decisions regarding the education of the child |
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and to have access to the child's school records. |
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"____ To register the child for school and to authorize the |
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child's participation in school activities. |
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"____ To make all necessary arrangements and to execute all |
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necessary consents and forms for the child to participate in |
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age-appropriate extracurricular activities, civic activities, |
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social activities, club or organization memberships and |
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activities, and recreational, sports, and athletic activities. |
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"____ To arrange for the provision to the child of clothing, |
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food, shelter, education, and medical, psychiatric, psychological, |
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dental, surgical, counseling, therapy, and rehabilitative |
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services. |
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"____ To arrange for insurance as appropriate for the child |
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to cover medical, psychiatric, psychological, dental, surgical, |
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counseling, therapy, or rehabilitative services, and to arrange for |
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appropriate accident, travel, or other insurance for the child. |
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"____ To consent to medical, psychiatric, psychological, |
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dental, surgical, counseling, therapy, and rehabilitative services |
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for the child and to have access to all records relating to those |
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services. |
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"____ For the child, in regard to confidential information |
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and protected health information, for the purposes of the Health |
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Insurance Portability and Accountability Act of 1996 (HIPAA), and |
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any other law or rule requiring authority to consent to or obtain |
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confidential information of any sort or protected health |
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information, my agent is acting in loco parentis and can execute |
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requests and authorizations regarding confidential information or |
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protected health information for the child. |
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"____ To open and manage accounts at financial institutions |
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for the child, with or without the name of the agent as co-signer on |
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the account, as appropriate to the maturity of the child. |
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"____ To arrange for the child to obtain motor vehicle, |
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boating, and other licenses and registrations, as appropriate to |
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the maturity of the child. |
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"____ To co-sign or guarantee appropriate loans to the child |
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by third parties for educational purposes or to purchase goods and |
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services. |
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"____ To collect debts owing to the child, to pay debts owed |
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by the child from the child's money, to defend suits against the |
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child, and to pursue suits to benefit the child, but this does not |
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waive the legal protection of the child under any law due to the |
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child being a minor. |
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"____ To give consent for lawful employment appropriate to |
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the age, interest, and capabilities of the child. |
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"____ As permitted under applicable law, to arrange for and |
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authorize travel out of state and out of country for the child and |
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to execute necessary documents related to out-of-state and |
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out-of-country travel. |
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"7. ALLERGIES AND SPECIAL HEALTH NEEDS. (Attach additional |
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sheets as necessary.) |
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"The following children have the following allergies |
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(including allergic reactions to medicines) or the following |
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special health needs (including dietary needs): |
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________________________________________________________________ |
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"8. LIMITATIONS ON AGENT (optional). (Attach additional |
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sheets as necessary.) |
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"Limitations on the decision-making authority and powers of |
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my agent are as follows: _________________________________________ |
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"Except to the extent that I have geographically limited the |
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exercise of one or more powers or areas of decision-making in the |
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limitations section or elsewhere in this power of attorney, powers |
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and authorities granted to my agent in this Power of Attorney for |
|
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Caregiver of Child can be exercised both within and outside the |
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State of Texas. |
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"9. DESIGNATION OF ALTERNATE AGENT (optional). |
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"If the person designated as my agent is unable or unwilling |
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to continue to act as caregiver for my child, I designate the |
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following person to serve as my agent to make decisions on behalf of |
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my child: |
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"Alternate agent: |
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"Name: _________________________________ |
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"Address: ______________________________ |
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"Telephone number: _____________________ |
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"10. DURATION. |
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"___ (initial) I understand that this power of attorney |
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starts on the day I sign it and continues until it is revoked, or |
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until the expiration date, whichever date occurs earlier. I |
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understand that I can revoke this power of attorney at any time by |
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revoking it in accordance with the revocation provisions. |
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"The expiration date of this power of attorney is |
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__________________. |
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"11. EFFECT OF SUBSEQUENT DISABILITY. Initial whichever |
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statement is true and states your intent: |
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"(Initial one space only) |
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"___ This power of attorney is not affected merely due to my |
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subsequent disability or incapacity and remains in effect until the |
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expiration date or the date I revoke this power of attorney before |
|
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the expiration date. If I am later determined by a court to be |
|
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incapacitated, then the court may invalidate this power of attorney |
|
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in whole or in part, or may leave it wholly unaffected. |
|
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"___ This power of attorney becomes ineffective if I later |
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become disabled or incapacitated or if I am later determined by a |
|
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court to be incapacitated. |
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"12. REVOCATION PROVISIONS. |
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"This power of attorney revokes all prior Powers of Attorney |
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for Caregiver of Child. |
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"I understand that this power of attorney can only be |
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revoked, by the parent or parents who signed it, in a writing |
|
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witnessed by two witnesses who are at least 18 years of age, neither |
|
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of whom is the agent, and at least one of whom is not related by |
|
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blood or marriage to the child or the agent. I understand that a |
|
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parent who did not sign the power of attorney may revoke the power |
|
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of attorney by executing a written statement that the parent is |
|
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willing and able to make decisions regarding the parent's child. |
|
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The written statement must be witnessed by two witnesses who are at |
|
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least 18 years of age, neither of whom is the agent, and at least one |
|
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of whom is not related by blood or marriage to the child or the |
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agent. |
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"13. ORIGINAL AND COPIES. The original of this Power of |
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Attorney for Caregiver of Child is in the possession of: |
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_____________________________ |
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"The following persons have a copy of this Power of Attorney |
|
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for Caregiver of Child: _________________________________________ |
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"14. PRESENTATION. Unless otherwise limited in regard to |
|
|
methods of presentation, in the limitations section of this power |
|
|
of attorney, the agent named in this Power of Attorney for Caregiver |
|
|
of Child can present this power of attorney in person, by fax, by |
|
|
attachment to e-mail, or by copy sent by United States mail or |
|
|
delivery service. |
|
|
"15. SIGNATURES. |
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"Parent: |
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"I have read the disclosure statement for the Power of |
|
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Attorney for Caregiver of Child. I sign my name to this Power of |
|
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Attorney for Caregiver of Child. |
|
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"Signed on this _________ day of ___________________, 2____. |
|
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"_____________________________ |
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"(parent's signature) |
|
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"_____________________________ |
|
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"(parent's printed name) |
|
|
"Other parent: |
|
|
"I have read the disclosure statement for the Power of |
|
|
Attorney for Caregiver of Child. I authorize the above parent to |
|
|
make this Power of Attorney for Caregiver of Child on behalf of my |
|
|
children named in this document. |
|
|
"Signed on this _________ day of ___________________, 2____. |
|
|
"_____________________________ |
|
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"(other parent's signature) |
|
|
"_____________________________ |
|
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"(other parent's printed name) |
|
|
"16. WITNESSES: |
|
|
"Witnesses are required for your power of attorney to be |
|
|
valid. Neither witness can be your agent. One witness cannot be a |
|
|
relative of the child or the agent. |
|
|
"First witness: |
|
|
"I am at least 18 years of age and I am not the person |
|
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appointed as the agent by this document. I am not related to the |
|
|
child or the agent by blood or marriage. |
|
|
"Signature: _____________________________ |
|
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"Printed name: ___________________________ |
|
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"Date: ________________________ |
|
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"Address: _________________________________________ |
|
|
"Second witness: |
|
|
"I am at least 18 years of age and I am not the person |
|
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appointed as the agent by this document. |
|
|
"Signature: ______________________________ |
|
|
"Printed name: ___________________________ |
|
|
"Date: ________________________ |
|
|
"Address: _________________________________________" |
|
|
SECTION 3. The Department of Family and Protective Services |
|
|
shall prescribe forms for the disclosure statement under Section |
|
|
151.055, Family Code, as added by this Act, and the power of |
|
|
attorney under Section 151.056, Family Code, as added by this Act, |
|
|
not later than January 1, 2010. The department and the Texas |
|
|
Education Agency shall make the forms available on their Internet |
|
|
websites or provide paper copies to the public on request without |
|
|
charge. |
|
|
SECTION 4. This Act takes effect immediately if it receives |
|
|
a vote of two-thirds of all the members elected to each house, as |
|
|
provided by Section 39, Article III, Texas Constitution. If this |
|
|
Act does not receive the vote necessary for immediate effect, this |
|
|
Act takes effect September 1, 2009. |