What Is A Declaration Of Guardian, And How Does It Work?

Posted on: April 28th, 2012
A Declaration of Guardian is a legal document where you tell the court who you want to serve as your guardian if there is ever a guardianship proceeding for you. There are two types of guardians: Guardian of your estate, and guardian of your person.

     Guardian of Your Estate

     The Guardian of your estate is entitled to possess and manage your property including all of the assets in your estate. They will also enforce any obligation in favor of you and bring and defend lawsuits by or against you.

     Guardian of Your Person

     The Guardian of your person has the duty to provide care, supervision, and protection for you. This includes providing clothing, food, medical care (i.e., decisions regarding operations, medications, and medical procedures and treatments) and shelter.

     Ordinarily, a guardian of your estate will not be needed if you have named an agent under a power of attorney for financial matters and a guardian of your person will not be needed if you have named an agent under a healthcare power of attorney. However, it is important to know that a Guardianship trumps a Power of Attorney. Therefore, if a Guardianship of the Estate is granted by a Court, the named Guardian of the Estate shall replace the agent named in the Durable Power of Attorney. Likewise, if a Guardianship of the Person is granted by a Court, the named Guardian of the Person will supersede the agent named in the Medical Power of Attorney. The person(s) named will only serve if you become incapacitated.

     Guardians for Minor Children     

     For those with young children, it is very important that they name Guardians for their children in case mom and dad are either incapacitated or pass away. These persons will take on an incredibly important role because they are essentially replacement parents. I know that no one can or will parent your children the way you and your spouse do, but this document allows you to name who you want to fulfill this role if it is ever needed.

     Without this document, if there is ever a need for your children to have a guardian, the court will use the “best interest of the child” standard and along with a host of appointees used by the court, to will determine whom your children should live with. In Texas, if you have not named anyone to serve in this capacity, the court will first look to your parents (your children’s grandparents), followed by your siblings and so forth.

     I find that this can be the single most difficult decision for parents, but it is often the deciding factor that encourages young parents to complete their estate planning. In Texas, the Code allows for parents to name guardians for their children within their Will and in a separate document.

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