When people think of essential estate planning documents, they often think only of wills and powers of attorney. However, Designations of Guardian are just as important.
A Designation of Guardianship serves two essential purposes. First, it allows you to designate a person to act as your guardian should you become incapacitated, and second, it allows you to designate a guardian to any minor children or children with special needs in case of your premature death. Each of these purposes presents a lot to think about and so it is worth looking at them separately.
Designating A Guardian of Minor or Special Needs Children
Nobody likes to consider the possibility that they may die unexpectedly and yet it is a critical subject to acknowledge, especially for those with dependents. Texas allows competent, surviving parents of minor or special needs children to designate a guardian in case they should later on die or become disabled. In addition, state law allows them to expressly disqualify people they would not want appointed guardian.
Choosing a guardian is a delicate process as the appointed person will assume responsibility for your children’s health, education, and moral upbringing. Accordingly, it is imperative that you talk to the potential candidate before making a designation and it is wise to have multiple backups should changes ever be needed. It is also important to consult an experienced estate planning attorney when executing a Designation of Guardianship as approval of your wishes ultimately rests with the court.
Designating A Guardian for Yourself
Just as it is crucial to protect your children from unforeseen tragedy, so too is it crucial to protect yourself. Should you suffer incapacitating injury, you want to know that you and your estate will be cared for by someone you love and trust.
In Texas, a person may be designated either guardian of a person or guardian of an estate. In the former case, the designated person is responsible for attending to the basic needs of the incapacitated person and may also make decisions concerning medical treatment on their behalf. In the latter case, the designated person is responsible for managing the financial affairs of the incapacitated person including any decisions related to property or real estate.
A Designation of Guardian is important even if you have a Medical Power of Attorney, Directive to Physicians, and Statutory Durable Power of Attorney. This is because a guardianship designation overrides powers of attorney. Unmarried couples want to take special care to appoint a guardian as failure to do so risks one member of the couple being unable to attend to the other’s care should an incapacitating accident occur. In such cases, without a Designation of Guardian, a family member could, for instance, petition the court for guardianship rights and thereby gain control over your well-being and finances when you would have wished your partner to fulfill this role.
It is just as imperative to talk to the potential candidate and consult with an experienced estate planning attorney when designating a guardian for yourself as for when doing so for your children. After all, a guardianship comes with fiduciary responsibility, or the legal obligation to act in the best of interest of the person for whom the guardianship is granted. An attorney can detail all that is implied by this responsibility as well as call other important considerations to your attention.
To learn more about guardianship designations or any other matter related to estate planning in Texas, do not hesitate to call the Hailey-Petty Law Firm at (512) 910-8977 in Austin, (210) 570-2458 in San Antonio, or to reach out via the contact form on our website.