How Does a Parent Give Authority Over a Child to a Grandparent in Texas?
Full Question:
Answer:
A petition for guardianship is filed where the minor resides or is located when the petition is filed. A guardianship may be voluntarily created by a surviving parent to be effective if the parent is deceased or incapacitated. A power of attorney over a child is a document signed and notarized by a parent giving a non-parent authority to make decisions for a minor child. The power of attorney is typically used by a parent who is unavailable for a period of time and wants to grant authority to another person over their child.
The power of attorney can be used to authorize the person to obtain medical treatment for a child, signing up a child for an activity, or for other significant decisions. The parent may also limit the purpose of the power of attorney to something very specific.
The parent granting the power of attorney can withdraw (revoke) the power at any time, even before the expiration date of the power of attorney. It is best that the withdrawal be in writing. The parent withdrawing the power must be sure to fill out a revocation form and deliver it to the person granted the power of attorney. The withdrawal is effective immediately upon delivery.
Please see the following TX statutes to determine applicability:
§ 610 PROB. CODE. 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.
(d) Repealed by Acts 1999, 76th Leg., ch. 379, § 10, eff. Sept. 1,
1999.
§ 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.
§ 677 PROB. CODE. Guardians of Persons Other Than Minors
(a) The court shall appoint a guardian for a person other than a minor
according to the circumstances and considering the best interests of the
ward. If the court finds that two or more eligible persons are equally
entitled to be appointed guardian:
(1) the ward's spouse is entitled to the guardianship in preference to
any other person if the spouse is one of the eligible persons;
(2) the eligible person nearest of kin to the ward is entitled to the
guardianship if the ward's spouse is not one of the eligible persons; or
(3) the court shall appoint the eligible person who is best qualified
to serve as guardian if:
(A) the persons entitled to serve under Subdivisions (1) and (2) of
this section refuse to serve;
(B) two or more persons entitled to serve under Subdivision (2) of this
section are related in the same degree of kinship to the ward; or
(C) neither the ward's spouse or any person related to the ward is an
eligible person.
(b) The surviving parent of an adult individual who is an incapacitated
person may by will or written declaration appoint an eligible person to be
guardian of the person of the adult individual after the parent's death
or in the event of the parent's incapacity if the parent is the guardian
of the person of the adult individual.
(c) After the death of the surviving parent of an adult individual who
is an incapacitated person or if the court finds the surviving parent
becomes an incapacitated person after being appointed the individual's
guardian, as appropriate, the court shall appoint the person designated
in the will or declaration to serve as guardian 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 adult
individual.
(d) On compliance with this chapter, the eligible person appointed
under Subsection (c) of this section is also entitled to be appointed
guardian of the adult individual's estate after the death of the
individual's parent or in the event of the parent's incapacity if the
individual's parent is the guardian of the individual's estate.
(e) The powers of a person appointed to serve as the designated
guardian of the person or estate, or both, of an adult individual solely
because of the incapacity of the individual'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 and reappointing the surviving parent as
the individual's guardian.
The following are AZ statutes:
14-5302. Venue
The venue for guardianship proceedings for an incapacitated person is in
the county where the incapacitated person resides or is present. If the
incapacitated person is admitted to an institution pursuant to order of a
court of competent jurisdiction, venue is also in the county in which that
court sits.
14-5303. Procedure for court appointment of a guardian of an alleged
incapacitated person
A. The alleged incapacitated person or any person interested in that
person's affairs or welfare may petition for the appointment of a guardian
or for any other appropriate protective order.
B. The petition shall state, to the extent known:
1. The interest of the petitioner.
2. The name, age, residence and address of the alleged incapacitated
person.
3. The name, address and priority for appointment of the person whose
appointment is sought.
4. The name and address of the conservator, if any, of the alleged
incapacitated person.
5. The name and address of the nearest relative of the alleged
incapacitated person known to the petitioner.
6. A general statement of the property of the alleged incapacitated
person, with an estimate of its value and including any compensation,
insurance, pension or allowance to which the person is entitled.
7. The reason why appointment of a guardian or any other protective order
is necessary.
8. The type of guardianship requested. If a general guardianship is
requested, the petition must state that other alternatives have been
explored and why a limited guardianship is not appropriate. If a limited
guardianship is requested, the petition also must state what specific
powers are requested.
C. On the filing of a petition, the court shall set a hearing date on the
issues of incapacity. Unless the alleged incapacitated person is
represented by independent counsel, the court shall appoint an attorney to
represent that person in the proceeding. The alleged incapacitated person
shall be interviewed by an investigator appointed by the court and shall be
examined by a physician, psychologist or registered nurse appointed by the
court. The investigator and the person conducting the examination shall
submit their reports in writing to the court. In addition to information
required under subsection D of this section, the court may direct that
either report include other information the court deems appropriate. The
investigator also shall interview the person seeking appointment as
guardian, visit the present place of abode of the alleged incapacitated
person and the place where it is proposed that the person will be detained
or reside if the requested appointment is made and submit a report in
writing to the court. The alleged incapacitated person is entitled to be
present at the hearing and to see or hear all evidence bearing on that
person's condition. The alleged incapacitated person is entitled to be
represented by counsel, to present evidence, to cross-examine witnesses,
including the court-appointed examiner and investigator, and to trial by
jury. The court may determine the issue at a closed hearing if the alleged
incapacitated person or that person's counsel so requests.
D. A report filed pursuant to this section by a physician, psychologist
or registered nurse acting within that person's scope of practice shall
include the following information:
1. A specific description of the physical, psychiatric or psychological
diagnosis of the person.
2. A comprehensive assessment listing any functional impairments of the
alleged incapacitated person and an explanation of how and to what extent
these functional impairments may prevent that person from receiving or
evaluating information in making decisions or in communicating informed
decisions regarding that person.
3. An analysis of the tasks of daily living the alleged incapacitated
person is capable of performing without direction or with minimal
direction.
4. A list of all medications the alleged incapacitated person is
receiving, the dosage of the medications and a description of the effects
each medication has on the person's behavior to the best of the declarant's
knowledge.
5. A prognosis for improvement in the alleged incapacitated person's
condition and a recommendation for the most appropriate rehabilitation plan
or care plan.
6. Other information the physician, psychologist or registered nurse
deems appropriate.
14-5304. Findings; order of appointment; limitations; filing
A. In exercising its appointment authority pursuant to this chapter, the
court shall encourage the development of maximum self-reliance and
independence of the incapacitated person.
B. The court may appoint a general or limited guardian as requested if it
is satisfied by clear and convincing evidence that:
1. The person for whom a guardian is sought is incapacitated.
2. The appointment is necessary to provide for the demonstrated needs of
the incapacitated person.
3. The person's needs cannot be met by less restrictive means, including
the use of appropriate technological assistance.
C. In conformity with the evidence regarding the extent of the ward's
incapacity, the court may appoint a limited guardian and specify time
limits on the guardianship and limitations on the guardian's powers.
D. The guardian shall file an acceptance of appointment with the
appointing court.
14-5309. Notices in guardianship proceedings
A. In a proceeding for the appointment or removal of a guardian of a
ward or an alleged incapacitated person other than the appointment of a
temporary guardian or temporary suspension of a guardian, notice of a
hearing shall be given to each of the following:
1. The ward or the alleged incapacitated person and that person's spouse,
parents and adult children.
2. Any person who is serving as guardian or conservator or who has the
care and custody of the ward or the alleged incapacitated person.
3. In case no other person is notified under paragraph 1 of this
subsection, at least one of that person's closest adult relatives, if any
can be found.
4. Any person who has filed a demand for notice.
B. At least fourteen days before the hearing notice shall be served
personally on the ward or the alleged incapacitated person, and that
person's spouse and parents if they can be found within the state. Notice
to the spouse and parents, if they cannot be found within the state, and to
all other persons except the ward or the alleged incapacitated person shall
be given as provided in section 14-1401. Waiver of notice by the ward or
the alleged incapacitated person is not effective unless that person
attends the hearing.
14-5312. General powers and duties of guardian
A. A guardian of an incapacitated person has the same powers, rights and
duties respecting the guardian's ward that a parent has respecting the
parent's unemancipated minor child, except that a guardian is not liable to
third persons for acts of the ward solely by reason of the guardianship. In
particular, and without qualifying the foregoing, a guardian has the
following powers and duties, except as modified by order of the court:
1. To the extent that it is consistent with the terms of any order by a
court of competent jurisdiction relating to detention or commitment of the
ward, the guardian is entitled to custody of the person of the ward and may
establish the ward's place of abode within or without this state.
2. If entitled to custody of the ward the guardian shall make provision
for the care, comfort and maintenance of the ward and, whenever
appropriate, arrange for the ward's training and education. Without regard
to custodial rights of the ward's person, the guardian shall take
reasonable care of the ward's clothing, furniture, vehicles and other
personal effects and commence protective proceedings if other property of
the ward is in need of protection.
3. A guardian may give any consents or approvals that may be necessary to
enable the ward to receive medical or other professional care, counsel,
treatment or service.
4. If no conservator for the estate of the ward has been appointed, the
guardian may:
(a) Institute proceedings to compel any person under a duty to support
the ward or to pay sums for the welfare of the ward to perform such
person's duty.
(b) Receive money and tangible property deliverable to the ward and apply
the money and property for support, care and education of the ward, but the
guardian may not use funds from his ward's estate for room and board the
guardian or the guardian's spouse, parent or child has furnished the ward
unless a charge for the service is approved by order of the court made upon
notice to at least one of the next of kin of the ward, if notice is
possible. He must exercise care to conserve any excess for the ward's
needs.
5. A guardian is required to report the condition of the ward and of the
estate that has been subject to the guardian's possession or control, as
required by the court or court rule.
6. If a conservator has been appointed, all of the ward's estate received
by the guardian in excess of those funds expended to meet current expenses
for support, care and education of the ward shall be paid to the
conservator for management as provided in this chapter and the guardian
must account to the conservator for funds expended.
7. If appropriate, a guardian shall encourage the ward to develop maximum
self-reliance and independence and shall actively work toward limiting or
terminating the guardianship and seeking alternatives to guardianship.
8. A guardian shall find the most appropriate and least restrictive
setting for the ward consistent with the ward's needs, capabilities and
financial ability.
9. A guardian shall make reasonable efforts to secure appropriate medical
and psychological care and social services for the ward.
10. A guardian shall make reasonable efforts to secure appropriate
training, education and social and vocational opportunities for his ward in
order to maximize the ward's potential for independence.
11. In making decisions concerning his ward, a guardian shall take into
consideration the ward's values and wishes.
12. The guardian is authorized to act pursuant to title 36, chapter 32.
13. The guardian of an incapacitated adult who has a developmental
disability as defined in section 36-551 shall seek services that are in the
best interest of the ward, taking into consideration:
(a) The ward's age.
(b) The degree or type of developmental disability.
(c) The presence of other handicapping conditions.
(d) The guardian's ability to provide the maximum opportunity to develop
the ward's maximum potential, to provide a minimally structured residential
program and environment for the ward and to provide a safe, secure, and
dependable residential and program environment.
(e) The particular desires of the individual.
B. Any guardian of a ward for whom a conservator also has been
appointed shall control the custody and care of the ward and is entitled
to receive reasonable sums for the guardian's services and for room and
board furnished to the ward as agreed upon between the guardian and the
conservator if the amounts agreed upon are reasonable under the
circumstances. The guardian may request the conservator to expend the
ward's estate by payment to third persons or institutions for the ward's
care and maintenance.
14-5315. Guardian reports; contents
A. A guardian shall submit a written report to the court on each
anniversary date of qualification as guardian, on resignation or removal as
guardian and on termination of the ward's disability.
B. The guardian shall mail a copy of the report to:
1. The ward.
2. The ward's conservator.
3. The ward's spouse or the ward's parents if the ward is not married.
4. A court appointed attorney for the ward.
5. Any other interested person who has filed a demand for notice with the
court.
C. The report shall include the following:
1. The type, name and address of the home or facility where the ward
lives and the name of the person in charge of the home.
2. The number of times the guardian has seen the ward in the last twelve
months.
3. The date the guardian last saw the ward.
4. The name and address of the ward's physician or registered nurse
practitioner.
5. The date the ward was last seen by a physician or a registered nurse
practitioner.
6. A copy of the ward's physician's or registered nurse practitioner's
report to the guardian or, if none exists, a summary of the physician's or
the registered nurse practitioner's observations on the ward's physical and
mental condition.
7. Major changes in the ward's physical or mental condition observed by
the guardian in the last year.
8. The guardian's opinion as to whether the guardianship should be
continued.
9. A summary of the services provided to the ward by a governmental
agency and the name of the individual responsible for the ward's affairs
with that agency.