Texas Wills and Trusts Law Online » Guardianship

People Ineligible To Be Appointed As Guardian

Rania Combs — Mon, 17 Oct 2011 14:30:10 +0000

When appointing a guardian for a child, the court will consider what is in the child’s best interest. According to the Texas Probate Code, certain people are statutorily ineligible to be appointed as guardian. These include:

a minor;
people whose conduct is notoriously inappropriate;
an incapacitated person;
a person who is a party or whose parent is a party to a lawsuit concerning or affecting the welfare of the proposed ward;
a person indebted to the ward unless the person pays the debt before appointment;
a person asserting a claim adverse to the proposed ward or the proposed ward’s property, real or personal;
a person who because of inexperience, lack of education, or other good reason, is incapable of properly and prudently managing and controlling the ward or the ward’s estate;
a person, institution, or corporation found unsuitable by the court; or
a person disqualified in a declaration made by the ward prior to incapacity.

Not surprisingly, a court will presume that appointing a person who has been convicted of any sexual offense, sexual assault, aggravated assault, aggravated sexual assault, injury to a child, to an elderly individual, or to a disabled individual, abandoning or endangering a child, or incest is not in the child’s best interest.

How is a Personal Representative of an Estate Appointed?

Who is an Incapacitated Person?

Rania Combs — Mon, 29 Aug 2011 14:00:09 +0000

TTexas Probate Code specifically defines who is an incapacitated person. According to the Code, an incapacitated person is:

A minor;

An adult individual who, because of a physical or mental condition is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical healthy, or to manage the individual’s own financial affairs; or

A person who must have a guardian appointed to receive funds due the person from any government source.

Incapacitated people may include people with mental illness, mental deficiency, physical illness, illness related to advanced age, chronic drug use, chronic alcohol use, or any other condition that prevents a person from being capable of caring for himself.

Can A Parent Appoint A Guardian
For An Incapacitated Adult Child ?

Who Will Raise My Children if I Die Without Naming Guardians?

Rania Combs — Mon, 16 May 2011 14:00:28 +0000

The thing that drives most young parents to plan make a will is not their stuff. Of course, we all want our children to get as much of our assets as we possibly can give them, but that’s not what we worry about. What worries us most is who will take care of our minor children if the unthinkable happens.

The good news is that most of us will be around to see our children grow and have children of their own. But this is not always the case. Sometimes, accidents happen. And if you don’t make the decision about who should raise your children if you and their other parent dies, a judge who doesn’t know you or what’s important to you will make that decision in your place.

Statutory Guidelines For Appointment of a Guardian

If a child is orphaned and no guardians have been named, the court will appoint a guardian based on the following statutory guidelines:

The court will appoint a grandparent. If the child has more than one living grandparent, then the court will make a decision about who would be most suitable considering what the court deems to be in the best interests of the minor child.

If no grandparents are alive or are willing or able to care for the child, then the nearest relative will be appointed. If the child has two or more relatives that are of the same degree of relationship to the child, then the court will appoint the person it believes is best suited to serve as guardian, considering the best interests of the child.

If the child has no relatives, or none are willing or able to care for the child, then the court will appoint another qualified person to serve as guardian.

How Guidelines May Sometimes Be Problematic

The statutory guidelines assume that the deceased parents would have chosen relatives to care for their children. While this is typically the case, the guidelines can pose a problem in some situations. For example:

The extended family of the child’s parents may not get along, and may disagree about who would be best suited to care for the child. This may result in a legal battle over guardianship.

There may be a family member who you would not want raising your children under any circumstances. If you do not make your wishes known, that family member may be awarded custody of your children.

Perhaps you would prefer that a close family friend serve as guardians instead of certain family members. If you don’t take the steps necessary to legally name a guardian, you lose your opportunity to make your wishes known.

The decision of who will be your children’s guardian is too important to leave in the hands of someone who doesn’t know you, your children, or the values that are important to you. You know your children better than anyone. You are in the best position to make the decisions that will affect their lives.

Selecting a Guardian in the ‘Modern Family’

Rania Combs — Fri, 22 Apr 2011 13:30:32 +0000

I think one of the funniest shows on television right now is Modern Family, and last night’s show was especially hilarious as Cameron and Mitchell tried to decide who would raise their daughter Lily’s if something were to happen to them.

The couple initially considered Mitchell’s sister Claire and her husband Phil as her guardians, but a home visit complete with yelling kids and several grease fires on the stove made them rethink their decision.

Cameron favored his family as Lily’s guardian, but Mitchell was not convinced. It would require moving Lily to Missouri, away from familiar surroundings, and exposing her to Cameron’s crazy relatives.

Mitchell thought his father and stepmother, Gloria, would be the best choice after seeing how Gloria interacted with Lily. Cameron was reluctant, reminding Mitchell that he blamed his father for everything from his night terrors to his shy bladder. But after Gloria’s son, Manny, told Cameron about what a great dad Jay was, Cameron had a change of heart, and their selection was made.

The happiest person in the room at that moment was Gloria, who seemed delighted at the prospect of a tragedy occurring that would allow Lily to become hers.

The show did a good job illustrating the fact that no prospective guardian is perfect. All will have flaws and quirks, just like Jay and Gloria.

Many parents tend to seek perfection when trying to decide on whom to name as our children’s guardian. And because we can never seem to find anyone who is perfect, many of us procrastinate and don’t name anyone at all. Unfortunately this leaves children vulnerable in case of a tragedy.

No one is perfect. But you’re the best person to decide who should raise your children if tragedy strikes. So if you’ve been procrastinating, evaluate your choices and make the best decision you can.

Remember that your choice is not set in stone. You should reevaluate your choice periodically to make sure that the person you select is still the most ideal candidate for the role. If not, it is possible to amend your will and appoint someone else who you believe is better qualified.

Can A Parent Appoint A Guardian For An Incapacitated Adult Child ?

Rania Combs — Mon, 21 Mar 2011 14:30:27 +0000

The thing that worries most parents about dying is typically not what will happen to their stuff. It’s who will take care of their kids. And the worries are compounded for parents of children with special needs who may need a guardian throughout their lives.

You know your child’s personality, temperament, fears, likes and dislikes better than anyone else. So you are in the best position to choose the person who will to serve as your child’s guardian. The Texas Probate Code provides that if you are the parent and guardian of an incapacitated adult child, you can, either by will or declaration, appoint a person to serve as your child’s guardian after your death or in the event of your incapacity.

If you do so, the court will appoint the person you select in preference to anyone else entitled to serve as guardian unless that person is disqualified, dead, refuses to serve, or the court determines that appointing him or her would not serve your child’s best interest. But if you don’t appoint a guardian, then a judge who does not know your child as well as you will have to make that decision in your place.

You know your child better than anyone. You are uniquely qualified to decide who should take care of your him or her in the event of your death or incapacity. By taking the steps necessary to legally appoint that person, you can rest assured that your child will be well cared for by a person you believe is best suited to step into your shoes.