Power of Attorney and Health Care – General – Texas
Execution and Witnesses
A person, other than an incapacitated person may, designate persons to serve as guardian of the person of the declarant or the estate of the declarant if the declarant becomes incapacitated. The declaration must be attested to by at least two credible witnesses 14 years of age or older who are not named as guardian or alternate guardian in the declaration. A declarant may disqualify specifically named persons from serving as guardian of the declarant’s person or estate, and the persons so named may not be appointed guardian under any circumstances. A 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 the application for appointment of a guardian is filed and before a guardian is appointed. Unless the court finds that the person designated in the declaration to serve as guardian is disqualified or would not serve the best interests of the ward, the court will appoint the person as guardian in preference to those otherwise entitled to serve as guardian. 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 will appoint another person to serve as otherwise provided by the Probate Code.
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. If a declarant designates the declarant’s spouse to serve as guardian, and the declarant is subsequently divorced from that spouse before a guardian is appointed, the provision of the declaration designating the spouse has no effect.
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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