The guardianship process can often be a long and emotional one. Everyone involved should have one goal in mind: appoint the most trustworthy, responsible person who will act in the best interest of the ward (the person who needs help). It’s not uncommon for friends and families of a child or incapacitated adult to disagree on who that person should be.
After all, everyone has a slightly different interpretation what’s best for their loved one. Luckily, the Texas Estate Code lists who has priority to be appointed as guardian. Keep in mind, that even though someone might have higher priority according to the Code, they must also be “qualified” and “suitable” in the Court’s eyes. There are two different lists: one for minors and one for incapacitated adults.
Guardianship of a Minor
If the parents are married then they’re both guardians of the child’s person and one of them can be appointed as the guardian of the child’s estate. If they disagree on who that should be, the Court will decide which parent is better qualified to be the guardian of the estate.
Parents Divorced or Separated
If the parents are not married or don’t live together then they have equal rights and it’s the court’s responsibility to determine what’s in the best interest of the child. The court uses a variety of factors to determine which parent is better for the child.
- Child over 12: It’s the child’s choice which parent they want to be their guardian. The court still has to approve the choice and find that their choice would be in their best interest, but the child has first say and the court has to consider that decision.
- Child under 12: The court determines the most suitable parent considering only the best interest of the child.
If there is only one surviving parent then that parent has priority as guardian of the person and estate of the child.
If the child is an orphan then then the guardian goes to whoever the last surviving natural parent named in their will or in a standalone document like a declaration of guardian.
No Parents, No Will, and No Declaration of Guardian
In what would be the worst case scenario for a child needing a guardian then it goes upward through the family chain starting with the relative closest to the child. They call this the “nearest ascendent” — usually the grandparent, but if there are no grandparents or great grandparents exist then it goes to nearest of kin: sibling, aunt, uncle, cousin, etc. The court will determine who is the closest to the child and assign guardianship but will always base the decision on what is in the best interest of the child..
Guardianship of an Adult
As with the children the court is always going to assign a guardian based on the best interest and wishes of the ward.
Declaration of Guardian
Before the incapacitated person loses their facilities they can draft a document called a Declaration of Guardian. This document will name a guardian, much like a will, and will designate a guardian chosen by the individual.
This is believed to represent the incapacitated person’s desires better than anything else. However, if the Declaration of Guardian names a spouse, and the couple gets divorced before the guardianship proceeding, then the provision naming the now divorced spouse is not given any effect.
If there is no Declaration of Guardian then the spouse has the highest level of priority. The spouse will still be vetted by the court, but they have priority over anyone else.
Nearest of Kin
If there is no spouse, then the next group that has priority to be guardian are the next of kin. If there are two relatives with equal rights, the Court will pick the one that is best qualified to serve..
At any time during the guardianship proceedings the incapacitated adult can change their mind and name a guardian of their own. Suppose we have an elderly person who has mild dementia with a pre-existing document naming their spouse as the guardian. After they become incapacitated there’s a hearing to determine the guardian and they decide they no longer want their spouse. Instead they’d like to name their sister as their guardian. At the time of that hearing, the court’s going to take into consideration, even though they are incapacitated, what their preference would be. As long as the sister is suitable the court may very well appoint them.
If the person’s dementia is so extreme that they’re not being logical or coherent then the court will likely deny the change and the spouse will retain the guardianship.
Consult an Experienced Guardianship Attorney
We recommend that you consult an experienced guardianship attorney when walking through this decision. At Romano & Sumner, we have a great deal of experience with the guardianship process. If you have any questions, or would like to make an appointment to talk with us, please don’t hesitate to contact us today.