Is Power of Attorney enough to show I have guardianship of a child?

Full Question:

The mother of a four month old is in the County Jail for at least two years. The father is on probation, recently got into trouble and bonded out, they will probably revoke probation orders in very near future. Father has had custody of child since born on 9/4/08. The father wants to give Power of Attorney custody to his mother. All rights and responsibility of minor child to paternal grandmother. He plans to file papers in courts in Texas. If mother gets out of jail, can she come and get child? If so, how can I word the information to keep her from getting child. Her mother was in jail 2 months before she was born. Warrants went out while she was in labor, she then the tried to run with baby and go into hiding. I need to make sure power of attorney is okay for this circumstance.
01/24/2009   |   Category: Guardianship   |   State: Texas   |   #15059

Answer:

USLegalforms offers powers of attorney for the care of a child that specifically comply with Texas statutes. Please see the links to the forms below.

The following are from 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 as witnesses, and that the declarant appeared to them to be
of sound mind.

(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.


§ 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.

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