How Do I Get Guardianship of a Minor in Texas?
Full Question:
Answer:
A parent may appoint a guardian for a minor by written declaration in Texas in the event of the paren't death or incapacity. If the parent is not incapacitated, it may be necessary to petition the court to appoint a guardian. In such a case, it will be a matter for the court to determine, based on all the facts and circumstances involved, that the appointment is in the child's best interests.
Under Texas law, if the minor is 12 years or older, she may choose a guardian if the court approves the choice and finds that the choice is in the best interest of the minor.
The following are TX statutes:
§ 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.
[omitted]
(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.
§ 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.
§ 601 PROB. CODE. Definitions
...
14) "Incapacitated person" means:
(A) a minor;
(B) an adult individual who, because of a physical or mental
condition, is substantially unable to provide food, clothing, or shelter
for himself or herself, to care for the individual's own physical
health, or to manage the individual's own financial affairs; or
(C) a person who must have a guardian appointed to receive funds due
the person from any governmental source.
§ 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 or termination
of rights requested to be included in the court's order of appointment,
including a termination of:
(A) the right of a proposed ward who is 18 years of age or older to
vote in a public election; and
(B) the proposed ward's eligibility to hold or obtain a license to
operate a motor vehicle under Chapter 521, Transportation Code;
(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 cf 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.
Texas Probate code § 610. Venue for Appointment of Guardian
(a) Except as otherwise authorized by this section, a proceeding for the appointment of a guardian for the person or estate, or both, of an incapacitated person shall be brought in the county in which the proposed ward resides or is located on the date the application is filed or in the county in which the principal estate of the proposed ward is located.
(b) A proceeding for the appointment of a guardian for the person or estate, or both, of a minor may be brought:
(1) in the county in which both the minor's parents reside;
(2) if the parents do not reside in the same county, in the county in which the parent who is the sole managing conservator of the minor resides, or in the county in which the parent who is the joint managing conservator with the greater period of physical possession of and access to the minor resides;
(3) if only one parent is living and the parent has custody of the minor, in the county in which that parent resides;
(4) if both parents are dead but the minor was in the custody of a deceased parent, in the county in which the last surviving parent having custody resided; or
(5) if both parents of a minor child have died in a common disaster and there is no evidence that the parents died other than simultaneously, in the county in which both deceased parents resided at the time of their simultaneous deaths if they resided in the same county.
(c) A proceeding for the appointment of a guardian who was appointed by will may be brought in the county in which the will was admitted to probate or in the county of the appointee's residence if the appointee resides in this state.
§ 676. 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.
§ 680. 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.
§ 682. 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 or termination of rights requested to be included in the court's order of appointment, including a termination of:
(A) the right of a proposed ward who is 18 years of age or older to vote in a public election; and
(B) the proposed ward's eligibility to hold or obtain a license to operate a motor vehicle under Chapter 521, Transportation Code;
(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. 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.
§ 694. Term of Appointment of Guardian
(a) Unless otherwise discharged as provided by law, a guardian remains in office until the estate is closed.
(b) The guardianship shall be settled and closed when the incapacitated person:
(1) dies and, if the person was married, the person's spouse qualifies as survivor in community;
(2) is found by the court to have full capacity to care for himself or herself and to manage the person's property;
(3) is no longer a minor; or
(4) no longer must have a guardian appointed to receive funds due the person from any governmental source.
(c) An order appointing a guardian or a successor guardian may specify a period of not more than one year during which a petition for adjudication that the incapacitated person no longer requires the guardianship may not be filed without special leave.
(d) A request for an order under this section may be made by informal letter to the court. A person who knowingly interferes with the transmission of the request to the court may be adjudged guilty of contempt of court.
(e) If a nonresident guardian of a nonresident ward qualifies as guardian under this chapter, the guardianship of any resident guardian may be terminated.
(f) [Repealed by Acts 1999, 76th Leg., ch. 379 (H.B. 3337), § 10, effective September 1, 1999.]
§ 699. 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. 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. 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.
§ 702A. Types of Bonds Acceptable for Guardian of the Person
(a) This section applies only to a bond required to be posted by a guardian of the person of a ward when there is no guardian of the ward's estate.
(b) To ensure the performance of the guardian's duties, the court may accept only:
(1) a corporate surety bond;
(2) a personal surety bond;
(3) a deposit of money instead of a surety bond; or
(4) a personal bond.
(c) In determining the appropriate type and amount of bond to set for the guardian, the court shall consider:
(1) the familial relationship of the guardian to the ward;
(2) the guardian's ties to the community;
(3) the guardian's financial condition;
(4) the guardian's past history of compliance with the court; and
(5) the reason the guardian may have previously been denied a corporate surety bond.
