As experienced Houston guardianship attorneys, we understand that the legal aspects surrounding the guardianship of minors can often be complex and overwhelming.
Texas law outlines a series of provisions to guide the selection and eligibility of individuals for guardianship. To help you navigate these legalities, we’ve put together an easy-to-understand guide based on Chapter 1104 of the Texas Estates Code, which focuses on the appointment and eligibility of guardians.
The Basics of Guardianship
Guardianship is a legal framework in which one person, the guardian, is appointed to make decisions and manage affairs for another, the ward. In the context of minors, the ward is a child under the age of 18. Typically, parents automatically serve as their children’s guardians, but certain circumstances may necessitate the appointment of a different guardian, such as the parents’ death or incapacity.
Single or Joint Guardianship
Under Section 1104.001, the law recognizes the appointment of only one person as the guardian of a minor’s person or estate. However, if it serves the best interest of the minor, separate individuals may be appointed as the guardian of the person and the guardian of the estate. The court can also make joint appointments in specific scenarios – such as appointing a husband and wife, joint managing conservators, co-guardians appointed under other jurisdictions, or both parents of an incapacitated adult.
Incapacitated Person’s Preference
Section 1104.002 emphasizes the importance of considering the ward’s preferences. Before appointing a guardian, the court must make a reasonable effort to consider who the incapacitated individual would prefer to serve as their guardian. The court is expected to give due consideration to this preference, provided it aligns with the minor’s best interests.
According to Section 1104.003, individuals are required to undergo specific training before serving as a guardian, unless this requirement is waived by the court. This measure ensures that the guardian is equipped with the necessary skills and knowledge to fulfill their role effectively.
Guardianship for Minors
Specific provisions apply to the guardianship of minor children, as detailed in Subchapter B of Chapter 1104.
Guardianship for Minor Children
In scenarios where parents live together, both parents are considered the natural guardians of their minor children (Sec. 1104.051). If the parents disagree about who should be appointed as the guardian of the children’s estates, the court will make the appointment based on which parent is better qualified to serve in that capacity.
For parents who do not live together, their rights are equal, and the court assigns the guardianship of their minor children to one parent, considering only the children’s best interests. If one parent is deceased, the surviving parent is the natural guardian of the minor children and is entitled to be appointed guardian of the children’s estates.
Guardianship for Minor Orphans
In the unfortunate event of a minor becoming an orphan, Sec. 1104.052 outlines the process of appointing a guardian. The court aims to appoint the nearest ascendant or kin to the minor, always keeping the minor’s best interests in mind. If no relative is eligible or willing, the court will appoint a qualified person as the guardian.
Guardian Designated by Will or Written Declaration
A surviving parent may designate an eligible person as the guardian of their minor children in their will or through a written declaration (Sec. 1104.053). This individual is preferred over any other candidate, unless disqualified, deceased, unwilling, or found unsuitable to serve the children’s best interests.
Selection of Guardian by Minor
Remarkably, Texas law empowers minors aged 12 or older to select their guardian,
whether for their person, estate, or both (Sec. 1104.054). This right is granted not only when an application for guardianship is filed, but also when the minor’s previously appointed guardian passes away, resigns, or is removed from the role. However, the minor’s selection must be approved by the court, which will consider the suitability and competency of the chosen person and whether the appointment serves the minor’s best interest.
In a nutshell, Texas guardianship laws for minors are designed to prioritize the welfare and best interests of the child. They provide several provisions to ensure that the appointed guardian is competent, suitable, and well-prepared to assume the responsibilities associated with the role.
As a Houston guardianship attorney, we are committed to helping you navigate these complex legal scenarios and ensuring the best possible outcomes for your family. Whether you’re facing a potential guardianship situation or simply want to understand your rights and responsibilities better, don’t hesitate to reach out to us. We’re here to support and guide you through every step of the process.
Guardianship matters are sensitive and require expert handling. With our seasoned attorneys by your side, you can rest assured that we’ll strive to protect your minor children’s rights and interests while providing you with the necessary legal guidance and support.
Alternatives to Guardianship in Texas
Guardianship is a significant responsibility and can be a complex process to navigate. As experienced Houston guardianship attorneys, we understand that sometimes, other alternatives may be more appropriate based on the specifics of your situation. In Texas, there are several recognized alternatives to guardianship that can provide similar protections without the need for a full legal guardianship.
Supported Decision-Making Agreements
One alternative to guardianship in Texas is the Supported Decision-Making Agreement (“SDMA”). This is a legal arrangement in which an adult who needs help making decisions (the “adult with a disability”) enters into an agreement with a supporter. The supporter’s role is to assist the individual in understanding the options, responsibilities, and potential consequences of their decisions without making those decisions for them.
This alternative helps maintain the individual’s independence and self-determination, ensuring they continue to make their own decisions while receiving necessary support. SDMAs can be used for decisions about living arrangements, services and supports, medical care, and more.
Power of Attorney
A Power of Attorney (“POA”) is a legal document in which one person (the “principal”) appoints another person (the “agent” or “attorney-in-fact”) to act on their behalf. There are different types of POA, including a General Power of Attorney, which gives the agent broad powers, and a Special Power of Attorney, which is limited to a specific purpose or period.
A Medical Power of Attorney allows the agent to make healthcare decisions on the principal’s behalf if they become incapable of doing so. Durable Power of Attorney, on the other hand, remains in effect even if the principal becomes incapacitated.
Trusts can serve as an effective alternative to guardianship for managing a minor’s or incapacitated individual’s finances. In a trust arrangement, a trustee is appointed to manage the assets placed in the trust for the benefit of the trust’s beneficiary. This can provide a way to ensure financial stability and protection for the individual without the need for guardianship. A management trust is an example of this.
Certain government benefits, such as Social Security or Medicaid, can be managed by a representative payee or a designated representative. These representatives can use the benefits to pay for the individual’s living expenses and personal needs, eliminating the need for a financial guardian.
Joint Bank Accounts
For minor financial matters, a joint bank account can be a practical alternative to guardianship. This allows the co-owner of the account to manage the funds and make financial decisions.
At our Houston guardianship attorney office, we have the experience and expertise to guide you through the process of selecting the best choice for your situation. We’re committed to providing you with all the necessary information and support to make informed decisions that serve the best interests of you and your loved ones. Whether you need assistance with supported decision-making agreements, power of attorney, trusts, or any other alternative to guardianship, we’re here to help.
Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with guardianships. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.