What is a declaration of guardian, and how does it work in Texas?

A Declaration of Guardian is a legal instrument in which you specify your preferred guardian in the event of a guardianship proceeding concerning you within the state of Texas. Guardianship can be categorized into two distinct types: one for your estate and another for your person.

Guardian of Your Estate

The appointed Guardian of your estate is responsible for the possession and administration of your assets, including all assets within your estate. This role encompasses the enforcement of obligations in your favor and the initiation or defense of legal actions on your behalf.

Guardian of Your Person

The Guardian of your person is charged with the responsibility of providing care, supervision, and protection. This encompasses the provision of basic needs such as clothing, food, and shelter, as well as making crucial medical decisions, including choices about surgeries, medications, and other medical treatments.

Typically, a Guardian of your estate may not be necessary if you have designated an agent in a financial power of attorney, and a Guardian of your person may not be needed if you have appointed an agent in a healthcare power of attorney. Nonetheless, it is crucial to understand that a Guardianship supersedes a Power of Attorney. Thus, if a court grants a Guardianship of the Estate, the appointed Guardian of the Estate will replace the agent named in the Durable Power of Attorney. Similarly, a Guardianship of the Person granted by a court will override the agent named in the Medical Power of Attorney, with the named individual(s) serving only in the event of your incapacitation.

Guardians for Minor Children

For parents with young children, naming Guardians for their offspring is imperative in the event of the parents’ incapacitation or demise. The designated individuals assume a critical role, essentially serving as substitute parents. While it is acknowledged that no one can replace the unique parenting provided by you and your spouse, this legal document enables you to appoint your preferred guardians for your children should the need arise.

In the absence of such a directive, Texas courts will employ the “best interest of the child” standard to determine suitable guardianship arrangements for your children, potentially considering relatives such as grandparents or siblings.

Deciding on guardians can be a challenging task for parents, yet it often serves as a key motivator for completing estate planning. In Texas, the legal framework permits parents to nominate guardians for their children both within their Will and through a separate document.

For further guidance on this matter, you may contact the Law Office of Dana Baker at 979-310-5507, offering specialized legal assistance in Texas.