Power of Attorney and Health Care – General – Texas
Execution and Witnesses
A written declaration appointing an eligible person to be guardian of the person of a parent’s child or children must be signed by the declarant and attested to by at least two credible witnesses 14 years of age or older. The witnesses cannot be named as the guardian or alternate guardian in the declaration. The declaration must 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. A properly executed and witnessed declaration and affidavit 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.
The declaration and affidavit may be filed with the court at any time after an application for appointment of a guardian is filed and before a guardian is appointed. 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 will appoint the next eligible designated as the alternate guardian as 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 will appoint another person to serve as otherwise provided by Texas law.
A declarant may revoke a declaration in any manner provided for the revocation of a will under Section 63 of the Probate Code (“No will in writing, and no clause thereof or devise therein, shall be revoked, except by a subsequent will, codicil, or declaration in writing, executed with like formalities, or by the testator destroying or canceling the same, or causing it to be done in his presence.) A declaration may be re-executed in the manner as is required for an original declaration.
A declaration and affidavit may be in any form as long as it clearly indicates the declarant’s intention to designate a guardian for the declarant’s child. The statutory form may be used but is not required.
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