How do I become legal guardian of my two younger sisters if I have my parents permission?
Full Question:
How do I obtain a form to be a legal guardian of my two teenage sisters? I do have my parents permission. If you could help me with this subject by sending all related information about the whole process.
11/09/2007 |
Category: Guardianship |
State: Texas |
#11934
Answer:
The following are Texas statutes:
§ 676 PROB. CODE. Guardians of Minors
(a) Except as provided by Section 680 of this code, the selection of a
guardian for a minor is governed by this section.
(b) If the parents live together, both parents are the natural
guardians of the person of the minor children by the marriage, and one of
the parents is entitled to be appointed guardian of the children's
estates. If the parents disagree as to which parent should be appointed,
the court shall make the appointment on the basis of which parent is
better qualified to serve in that capacity. If one parent is dead, the
survivor is the natural guardian of the person of the minor children and
is entitled to be appointed guardian of their estates. The rights of
parents who do not live together are equal, and the guardianship of their
minor children shall be assigned to one or the other, considering only
the best interests of the children.
(c) In appointing a guardian for a minor orphan:
(1) if the last surviving parent did not appoint a guardian, the
nearest ascendant in the direct line of the minor is entitled to
guardianship of both the person and the estate of the minor;
(2) if more than one ascendant exists in the same degree in the direct
line, one ascendant shall be appointed, according to circumstances and
considering the best interests of the minor;
(3) if the minor has no ascendant in the direct line, the nearest of
kin shall be appointed, and if there are two or more persons in the same
degree of kinship, one shall be appointed, according to circumstances and
considering the best interests of the minor; and
(4) if no relative of the minor is eligible to be guardian, or if no
eligible person applies to be guardian, the court shall appoint a
qualified person as guardian.
(d) Notwithstanding Subsection (b) of this section and Section 690 of
this code, the surviving parent of a minor may by will or written
declaration appoint any eligible person to be guardian of the person of
the parent's minor children after the death of the parent or in the event
of the parent's incapacity.
(e) After the death of the surviving parent of a minor or if the court
finds the surviving parent is an incapacitated person, as appropriate,
the court shall appoint the person designated in the will or declaration
to serve as guardian of the person of the parent's minor children in
preference to those otherwise entitled to serve as guardian under this
chapter unless the court finds that the designated guardian is
disqualified, is dead, refuses to serve, or would not serve the best
interests of the minor children.
(f) On compliance with this chapter, an eligible person is also
entitled to be appointed guardian of the children's estates after the
death of the parent or in the event of the parent's incapacity.
(g) The powers of a person appointed to serve as the designated
guardian of the person or estate, or both, of a minor child solely
because of the incapacity of the minor's surviving parent and in
accordance with this section and Section 677A of this code terminate when
a probate court enters an order finding that the surviving parent is no
longer an incapacitated person.
§ 677A PROB. CODE. Written Declarations by Certain Parents to
Appoint Guardians for Their Children
(a) A written declaration appointing an eligible person to be guardian
of the person of the parent's child under Section 676(d) or 677(b) of
this code must be signed by the declarant and be:
(1) written wholly in the handwriting of the declarant; or
(2) attested to in the presence of the declarant by at least two
credible witnesses 14 years of age or older who are not named as guardian
or alternate guardian in the declaration.
(b) A declaration that is not written wholly in the handwriting of the
declarant may be signed by another person for the declarant under the
direction of and in the presence of the declarant.
(c) A declaration described by Subsection (a)(2) of this section may
have attached a self-proving affidavit signed by the declarant and the
witnesses attesting to the competence of the declarant and the execution
of the declaration.
(d) The declaration and any self-proving affidavit may be filed with
the court at any time after the application for appointment of a guardian
is filed and before a guardian is appointed.
(e) If the designated guardian does not qualify, is dead, refuses to
serve, resigns, or dies after being appointed guardian, or is otherwise
unavailable to serve as guardian, the court shall appoint the next
eligible designated alternate guardian named in the declaration. If the
guardian and all alternate guardians do not qualify, are dead, refuse to
serve, or later die or resign, the court shall appoint another person to
serve as otherwise provided by this code.
(f) The declarant may revoke a declaration in any manner provided for
the revocation of a will under Section 63 of this code, including the
subsequent reexecution of the declaration in the manner required for the
original declaration.
(g) A declaration and affidavit may be in any form adequate to clearly
indicate the declarant's intention to designate a guardian for the
declarant's child. The following form may, but need not, be used:
DECLARATION OF APPOINTMENT OF GUARDIAN FOR MY CHILDREN
IN THE EVENT OF MY DEATH OR INCAPACITY
I, __________, make this Declaration to appoint as guardian for my
child or children, listed as follows, in the event of my death or
incapacity:
____________________ ____________________
____________________ ____________________
____________________ ____________________
(add blanks as appropriate)
I designate __________ to serve as guardian of the person of
my (child or children), __________ as first alternate guardian of
the person of my (child or children), __________ as second alternate
guardian of the person of my (child or children), and __________ as
third alternate guardian of the person of my (child or children).
I direct that the guardian of the person of my (child or children)
serve (with or without) bond.
(If applicable) I designate __________ to serve as guardian of
the estate of my (child or children), __________ as first alternate
guardian of the estate of my (child or children), __________ as
second alternate guardian of the estate of my (child or children),
and __________ as third alternate guardian of the estate of my (child
or children).
If any guardian or alternate guardian dies, does not qualify, or
resigns, the next named alternate guardian becomes guardian of my (child
or children).
Signed this day of __________ 20__.
____________________
Declarant
____________________ ____________________
Witness Witness
SELF-PROVING AFFIDAVIT
Before me, the undersigned authority, on this date personally appeared
the declarant, and __________ and __________ as witnesses, and all being
duly sworn, the declarant said that the above instrument was his or her
Declaration of Appointment of Guardian for the Declarant's Children in
the Event of Declarant's Death or Incapacity and that the declarant had
made and executed it for the purposes expressed in the declaration. The
witnesses declared to me that they are each 14 years of age or older,
that they saw the declarant sign the declaration, that they signed the
declaration as witnesses, and that the declarant appeared to them to be
of sound mind.
____________________
Declarant
____________________ ____________________
Affiant Affiant
Subscribed and sworn to before me by the above named declarant and
affiants on this _____ day of __________ 20__.
____________________________
Notary Public in and for the
State of Texas
My Commission expires:
____________________________
(h) In this section, "self-proving affidavit" means an affidavit the
form and content of which substantially complies with the requirements of
Subsection (g) of this section.
§ 677B PROB. CODE. Proof of Written Declaration of Certain Parents to
Designate Childrens' Guardian
(a) In this section:
(1) "Declaration" means a written declaration of a person that:
(A) appoints a guardian for the person's child under Section 676(d) or
677(b) of this code; and
(B) satisfies the requirements of Section 677A of this code.
(2) "Self-proving affidavit" means an affidavit the form and content of
which substantially complies with the requirements of Section 677A(g) of
this code.
(3) "Self-proving declaration" includes a self-proving affidavit that
is attached or annexed to a declaration.
(b) If a declaration is self-proved, the court may admit the
declaration into evidence without the testimony of witnesses attesting to
the competency of the declarant and the execution of the declaration.
Additional proof of the execution of the declaration with the formalities
and solemnities and under the circumstances required to make it a valid
declaration is not necessary.
(c) At any time during the declarant's lifetime, a written declaration
described by Section 677A(a)(1) of this code may be made self-proved in
the same form and manner a will written wholly in the handwriting of a
testator is made self-proved under Section 60 of this code.
(d) A properly executed and witnessed self-proving declaration and
affidavit, including a declaration and affidavit described by Section
677A(c) of this code, are prima facie evidence that the declarant was
competent at the time the declarant executed the declaration and that the
guardian named in the declaration would serve the best interests of the
ward.
(e) A written declaration described by Section 677A(a)(1) of this code
that is not self-proved may be proved in the same manner a will written
wholly in the handwriting of the testator is proved under Section 84 of
this code.
(f) A written declaration described by Section 677A(a)(2) of this code
that is not self-proved may be proved in the same manner an attested
written will produced in court is proved under Section 84 of this code.
§ 678 PROB. CODE. Presumption Concerning Best Interest
It is presumed not to be in the best interests of a ward to appoint a
person as guardian of the ward if the person has been finally convicted of
any sexual offense, sexual assault, aggravated assault, aggravated sexual
assault, injury to a child, to an elderly individual, or to a disabled
individual, abandoning or endangering a child, or incest.
§ 680 PROB. CODE. Selection of Guardian by Minor
(a) When an application is filed for the guardianship of the person or
estate, or both, of a minor at least 12 years of age, the minor, by
writing filed with the clerk, may choose the guardian if the court
approves the choice and finds that the choice is in the best interest of
the minor.
(b) A minor at least 12 years of age may select another guardian of
either the minor's person or estate, or both, if the minor has a guardian
appointed by the court or the minor has a guardian appointed by will or
written declaration of the parent of the minor and that guardian dies,
resigns, or is removed from guardianship. If the court is satisfied that
the person selected is suitable and competent and that the appointment of
the person is in the best interest of the minor, it shall make the
appointment and revoke the letters of guardianship of the former
guardian. The minor shall make the selection by filing an application in
open court in person or by attorney.
§ 681 PROB. CODE. Persons Disqualified to Serve as Guardians
A person may not be appointed guardian if the person is:
(1) a minor;
(2) a person whose conduct is notoriously bad;
(3) an incapacitated person;
(4) a person who is a party or whose parent is a party to a lawsuit
concerning or affecting the welfare of the proposed ward, unless the
court:
(A) determines that the lawsuit claim of the person who has applied to
be appointed guardian is not in conflict with the lawsuit claim of the
proposed ward; or
(B) appoints a guardian ad litem to represent the interests of
the proposed ward throughout the litigation of the ward's lawsuit
claim;
(5) a person indebted to the proposed ward unless the person pays the
debt before appointment;
(6) a person asserting a claim adverse to the proposed ward or
the proposed ward's property, real or personal;
(7) a person who, because of inexperience, lack of education, or other
good reason, is incapable of properly and prudently managing and
controlling the ward or the ward's estate;
(8) a person, institution, or corporation found unsuitable by the
court;
(9) a person disqualified in a declaration made under Section 679 of
this code; or
(10) a nonresident person who has not filed with the court the name of
a resident agent to accept service of process in all actions or
proceedings relating to the guardianship.
§ 682 PROB. CODE. Application; Contents
Any person may commence a proceeding for the appointment of a guardian
by filing a written application in a court having jurisdiction and
venue. The application must be sworn to by the applicant and state:
(1) the name, sex, date of birth, and address of the proposed ward;
(2) the name, relationship, and address of the person the applicant
desires to have appointed as guardian;
(3) whether guardianship of the person or estate, or both, is sought;
(4) the nature and degree of the alleged incapacity, the specific areas
of protection and assistance requested, and the limitation of rights
requested to be included in the court's order of appointment;
(5) the facts requiring that a guardian be appointed and the interest
of the applicant in the appointment;
(6) the nature and description of any guardianship of any kind existing
for the proposed ward in any other state;
(7) the name and address of any person or institution having the care
and custody of the proposed ward;
(8) the approximate value and description of the proposed ward's
property, including any compensation, pension, insurance, or allowance to
which the proposed ward may be entitled;
(9) the name and address of any person whom the applicant knows to hold
a power of attorney signed by the proposed ward and a description of the
type of power of attorney;
(10) if the proposed ward is a minor and if known by the applicant:
(A) the name of each parent of the proposed ward and state the parent's
address or that the parent is deceased;
(B) the name and age of each sibling, if any, of the proposed ward and
state the sibling's address or that the sibling is deceased; and
(C) if each of the proposed ward's parents and siblings are deceased,
the names and addresses of the proposed ward's next of kin who are
adults;
(11) if the proposed ward is a minor, whether the minor was the subject
of a legal or conservatorship proceeding within the preceding two-year
period and, if so, the court involved, the nature of the proceeding, and
the final disposition, if any, of the proceeding;
(12) if the proposed ward is an adult and if known by the applicant:
(A) the name of the proposed ward's spouse, if any, and state the
spouse's address or that the spouse is deceased;
(B) the name of each of the proposed ward's parents and state the
parent's address or that the parent is deceased;
(C) the name and age of each of the proposed ward's siblings, if any,
and state the sibling's address or that the sibling is deceased;
(D) the name and age of each of the proposed ward's children, if any,
and state the child's address or that the child is deceased; and
(E) if the proposed ward's spouse and each of the proposed ward's
parents, siblings, and children are deceased, or, if there is no spouse,
parent, adult sibling, or adult child, the names and addresses of the
proposed ward's next of kin who are adults;
(13) facts showing that the court has venue over the proceeding; and
(14) if applicable, that the person whom the applicant desires to have
appointed as a guardian is a private professional guardian who is
certified under Subchapter C, Chapter 111, Government Code, and has
complied with the requirements of Section 697 of this code.
§ 685 PROB. CODE. Hearing for Appointment of Guardian; Right to Jury
Trial
(a) A proposed ward must be present at a hearing to appoint a guardian
unless the court, on the record or in the order, determines that a
personal appearance is not necessary. The court may close the hearing if
the proposed ward or the proposed ward's counsel requests a closed
hearing.
(b) The proposed ward is entitled, on request, to a jury trial.
(c) At the hearing, the court shall:
(1) inquire into the ability of any allegedly incapacitated adult
person to feed, clothe, and shelter himself or herself, to care for the
individual's own physical health, and to manage the individual's property
or financial affairs;
(2) ascertain the age of any proposed ward who is a minor;
(3) inquire into the governmental reports for any person who must have
a guardian appointed to receive funds due the person from any
governmental source; and
(4) inquire into the qualifications, abilities, and capabilities of the
person seeking to be appointed guardian.
§ 686 PROB. CODE. Use of Records in Hearing to Appoint Guardian
(a) Before a hearing may be held for the appointment of a guardian,
current and relevant medical, psychological, and intellectual testing
records of the proposed ward must be provided to the attorney ad litem
appointed to represent the proposed ward unless:
(1) the proposed ward is a minor or a person who must have a guardian
appointed to receive funds due the person from any governmental source;
or
(2) the court makes a finding on the record that no current or relevant
records exist and examining the proposed ward for the purpose of creating
the records is impractical.
(b) Current medical, psychological, and intellectual testing records
are a sufficient basis for a determination of guardianship.
(c) The findings and recommendations contained in the medical,
psychological, and intellectual testing records are not binding on the
court.
§ 699 PROB. CODE. How Guardians Qualify
A guardian is deemed to have duly qualified when the guardian has taken
and filed the oath required under Section 700 of this code, has made the
required bond, and has filed it with the clerk, and has the bond approved
by the judge. A guardian who is not required to make bond, is deemed to
have duly qualified when the guardian has taken and filed the required
oath.
§ 700 PROB. CODE. Oath of Guardian
(a) The guardian shall take an oath to discharge faithfully the duties
of guardian for the person or estate, or both, of a ward.
(b) A representative of the Department of Aging and Disability Services
shall take the oath required by Subsection (a) of this section if the
department is appointed guardian.
§ 701 PROB. CODE. Time for Taking Oath and Giving Bond
Except as provided by Section 682A(a) of this code, the oath of a
guardian may be taken and subscribed, or the bond of a guardian may be
given and approved, at any time before the expiration of the 20th day
after the date of the order granting letters of guardianship, or before
the letters have been revoked for a failure to qualify within the time
allowed. An oath may be taken before any person authorized to administer
oaths under the laws of this state.
§ 702 PROB. CODE. Bond Required of Guardian of the Person or Estate
(a) Except as provided by Subsections (b) and (c) of this section, a
guardian of the person or of the estate of a ward is required to give
bond.
(b) A bond is not required to be given by a guardian that is:
(1) a corporate fiduciary, as defined by Section 601 of this code; or
(2) a guardianship program operated by a county.
(c) When a will that is made by a surviving parent and is probated in a
court in this state or a written declaration that is made by a surviving
parent directs that the guardian appointed in the will or declaration
serve without bond, the court finding that the person is qualified shall
issue letters of guardianship of the person to the person named to be
appointed guardian in the will or declaration without requirement of
bond. The court may not waive the requirement of a bond for the guardian
of the estate of a ward, regardless of whether a surviving parent's will
or declaration directs the court to waive the bond.