Title ES, Estates Code

Sec. 1104.052. GUARDIAN FOR MINOR ORPHAN. 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…

Sec. 1104.053. GUARDIAN DESIGNATED BY WILL OR WRITTEN DECLARATION. (a) Notwithstanding Section 1104.001 or 1104.051, 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 th…

Sec. 1104.054. SELECTION OF GUARDIAN BY MINOR. (a) Notwithstanding any other provision of this subchapter, if 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 may select the guardian by a writing filed w…

Sec. 1104.101. APPOINTMENT ACCORDING TO CIRCUMSTANCES AND BEST INTERESTS. The court shall appoint a guardian for an incapacitated person other than a minor according to the circumstances and considering the incapacitated person's best interests. Added by Acts 2011, 82nd Leg., R.S…

Sec. 1104.102. APPOINTMENT PREFERENCES. If the court finds that two or more eligible persons are equally entitled to be appointed guardian of an incapacitated person: (1) the incapacitated person's spouse is entitled to the guardianship in preference to any other person, if the s…

Sec. 1104.103. DESIGNATION OF GUARDIAN BY WILL OR WRITTEN DECLARATION. (a) The surviving parent of an adult individual who is an incapacitated person may, if the parent is the guardian of the person or estate of the adult individual, by will or written declaration appoint an elig…

Sec. 1104.151. DEFINITIONS. In this subchapter: (1) "Declaration" means a written declaration of a person that: (A) appoints a guardian for the person's child under Section 1104.053(a) or 1104.103(a); and (B) satisfies the requirements of this subdivision and Sections 1104.152, 1…

Sec. 1104.152. REQUIREMENTS FOR DECLARATION. (a) A declaration appointing an eligible person to be guardian of the person of a parent's child under Section 1104.053(a) or 1104.103(a) must be signed by the declarant and be: (1) written wholly in the declarant's handwriting; or (2)…

Sec. 1104.153. FORM AND CONTENT OF DECLARATION AND SELF-PROVING AFFIDAVIT. (a) 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. (b) The following form may be used but is not re…

Sec. 1104.154. ALTERNATIVE TO SELF-PROVING AFFIDAVIT. (a) As an alternative to the self-proving affidavit authorized by Section 1104.153, a declaration of appointment of a guardian for the declarant's children in the event of the declarant's death or incapacity may be simultaneou…

Sec. 1104.155. ALTERNATE SELF-PROVING OF DECLARATION. At any time during the declarant's lifetime, a declaration described by Section 1104.152(a)(1) may be made self-proved in the same form and manner that a will written wholly in the testator's handwriting is made self-proved un…

Sec. 1104.156. FILING OF DECLARATION AND SELF-PROVING AFFIDAVIT. 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. Added by Acts 2011, 82nd Leg., …

Sec. 1104.157. PROOF OF DECLARATION. (a) The court may admit a declaration that is self-proved into evidence without the testimony of witnesses attesting to the competency of the declarant and the execution of the declaration. Additional proof of the execution of the declaration …

Sec. 1104.158. PRIMA FACIE EVIDENCE. A properly executed and witnessed self-proving declaration, including a declaration and self-proving affidavit described by Section 1104.152(c), is prima facie evidence that: (1) the declarant was competent at the time the declarant executed t…

Sec. 1104.159. REVOCATION OF DECLARATION. The declarant may revoke a declaration in any manner provided for the revocation of a will under Section 253.002, including the subsequent re-execution of the declaration in the manner required for the original declaration. Added by Acts …

Sec. 1104.160. ALTERNATE OR OTHER COURT-APPOINTED GUARDIAN. (a) The court shall appoint the next eligible designated alternate guardian named in a declaration if the designated guardian does not qualify, is deceased, refuses to serve, resigns, or dies after being appointed guardi…

Sec. 1104.201. DEFINITIONS. In this subchapter: (1) "Declaration" means a written declaration of a person that: (A) designates another person to serve as a guardian of the person or estate of the declarant; and (B) satisfies the requirements of this subdivision and Sections 1104.…

Sec. 1104.202. DESIGNATION OF GUARDIAN FOR DECLARANT. (a) A person other than an incapacitated person may designate by declaration a person to serve as guardian of the person or estate of the declarant if the declarant becomes incapacitated. The court shall appoint the person des…

Sec. 1104.203. REQUIREMENTS FOR DECLARATION. (a) Except as provided by Subsection (a-1), a declaration under this subchapter must be signed by the declarant and be: (1) written wholly in the declarant's handwriting; or (2) attested to in the declarant's presence by at least two c…

Sec. 1104.204. FORM AND CONTENT OF DECLARATION AND SELF-PROVING AFFIDAVIT. (a) A declaration and affidavit may be in any form adequate to clearly indicate the declarant's intention to designate a guardian. (b) The following form may be used but is not required to be used: DECLARA…

Sec. 1104.205. ALTERNATIVE TO SELF-PROVING AFFIDAVIT. (a) As an alternative to the self-proving affidavit authorized by Section 1104.204, a declaration of guardian in the event of later incapacity or need of guardian may be simultaneously executed, attested, and made self-proved …

Sec. 1104.206. ALTERNATE SELF-PROVING OF DECLARATION. At any time during the declarant's lifetime, a declaration described by Section 1104.203(a)(1) may be made self-proved in the same form and manner that a will written wholly in the testator's handwriting is made self-proved un…

Sec. 1104.207. FILING OF DECLARATION AND SELF-PROVING AFFIDAVIT. 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. Added by Acts 2011, 82nd Leg., …

Sec. 1104.208. PROOF OF DECLARATION. (a) The court may admit a declaration that is self-proved into evidence without the testimony of witnesses attesting to the competency of the declarant and the execution of the declaration. Additional proof of the execution of the declaration …

Sec. 1104.209. PRIMA FACIE EVIDENCE. A properly executed and witnessed self-proving declaration, including a declaration and self-proving affidavit described by Section 1104.203(c), is prima facie evidence that: (1) the declarant was competent at the time the declarant executed t…

Sec. 1104.210. REVOCATION OF DECLARATION. The declarant may revoke a declaration in any manner provided for the revocation of a will under Section 253.002, including the subsequent re-execution of the declaration in the manner required for the original declaration. Added by Acts …

Sec. 1104.211. EFFECT OF DIVORCE ON DESIGNATION OF SPOUSE. If a declarant designates the declarant's spouse to serve as guardian under this subchapter, and the declarant is subsequently divorced from that spouse before a guardian is appointed, the provision of the declaration des…

Sec. 1104.212. ALTERNATE OR OTHER COURT-APPOINTED GUARDIAN. (a) The court shall appoint the next eligible designated alternate guardian named in a declaration if the designated guardian does not qualify, is deceased, refuses to serve, resigns, or dies after being appointed guardi…

Sec. 1104.251. CERTIFICATION REQUIRED FOR CERTAIN GUARDIANS. (a) An individual must be certified under Subchapter C, Chapter 155, Government Code, if the individual: (1) is a private professional guardian; (2) will represent the interests of a ward as a guardian on behalf of a pr…

Sec. 1104.252. EFFECT OF PROVISIONAL CERTIFICATE. For purposes of this subchapter, a person who holds a provisional certificate issued under Section 155.103, Government Code, is considered to be certified. Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. …

Sec. 1104.253. EXCEPTION FOR FAMILY MEMBERS AND FRIENDS. A family member or friend of an incapacitated person is not required to be certified under Subchapter C, Chapter 155, Government Code, or any other law to serve as the person's guardian. Added by Acts 2011, 82nd Leg., R.S.,…

Sec. 1104.254. EXCEPTION FOR CERTAIN VOLUNTEERS. An individual volunteering with a guardianship program or with the Department of Aging and Disability Services is not required to be certified as provided by Section 1104.251 to provide guardianship services or other services under…

Sec. 1104.255. EXPIRATION OF CERTIFICATION. A person whose certification under Subchapter C, Chapter 155, Government Code, has expired must obtain a new certification under that subchapter to provide or continue providing guardianship services to a ward or incapacitated person un…

Sec. 1104.256. FAILURE TO COMPLY; COURT'S DUTY TO NOTIFY. The court shall notify the guardianship certification program of the Judicial Branch Certification Commission if the court becomes aware of a person who is not complying with: (1) the terms of a certification issued under …

Sec. 1104.257. INFORMATION REGARDING SERVICES PROVIDED BY GUARDIANSHIP PROGRAM. Not later than January 31 of each year, each guardianship program operating in a county shall submit to the county clerk a copy of the report submitted to the guardianship certification program of the…

Sec. 1104.258. INFORMATION REGARDING CERTAIN STATE EMPLOYEES PROVIDING GUARDIANSHIP SERVICES. Not later than January 31 of each year, the Department of Aging and Disability Services shall submit to the guardianship certification program of the Judicial Branch Certification Commis…

Sec. 1104.301. CERTIFICATION AND REGISTRATION REQUIRED. A court may not appoint a private professional guardian to serve as a guardian or permit a private professional guardian to continue to serve as a guardian under this title if the private professional guardian is not: (1) ce…

Sec. 1104.302. ANNUAL CERTIFICATE OF REGISTRATION. A private professional guardian must annually apply for a certificate of registration. Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014.

Sec. 1104.303. REQUIREMENTS OF APPLICATION. (a) An application for a certificate of registration must include a sworn statement containing the following information concerning a private professional guardian or each person who represents or plans to represent the interests of a w…

Sec. 1104.304. TERM OF REGISTRATION; RENEWAL. (a) The term of an initial registration begins on the date the requirements under Section 1104.303 are met and extends through December 31 of the year in which the application is made. After the term of the initial registration, the t…

Sec. 1104.305. USE OF REGISTRATION INFORMATION. (a) The clerk shall bring the information received under Section 1104.303 to the judge's attention for review. (b) The judge shall use the information only to determine whether to appoint, remove, or continue the appointment of a pr…

Sec. 1104.306. USE OF NAMES AND BUSINESS ADDRESSES. Not later than January 31 of each year, the clerk shall submit to the guardianship certification program of the Judicial Branch Certification Commission the name and business address of each private professional guardian who has…

Sec. 1104.351. INCAPACITY OR INEXPERIENCE. A person may not be appointed guardian if the person is: (1) a minor or other incapacitated person; or (2) a person who, because of inexperience, lack of education, or other good reason, is incapable of properly and prudently managing an…

Sec. 1104.352. UNSUITABILITY. A person may not be appointed guardian if the person is a person, institution, or corporation found by the court to be unsuitable. Added by Acts 2011, 82nd Leg., R.S., Ch. 823 (H.B. 2759), Sec. 1.02, eff. January 1, 2014. Amended by: Acts 2013, 83rd …

Sec. 1104.353. NOTORIOUSLY BAD CONDUCT; PRESUMPTION CONCERNING BEST INTEREST. (a) A person may not be appointed guardian if the person's conduct is notoriously bad. (b) It is presumed to be not in the best interests of a ward or incapacitated person to appoint as guardian of the …

Sec. 1104.354. CONFLICT OF INTEREST. A person may not be appointed guardian if the person: (1) is a party or is a person 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 p…