When it comes to estate planning in Texas, it has become commonplace for individuals to have a will, durable power of attorney, and a medical power of attorney in place. However, even with these legal documents in place, a designation of guardian may also be required in some situations. This designation can be essential as a guardian of an estate is generally tasked with managing the assets and property of an estate when the incapacitated cannot.

In the event that an individual becomes incapacitated or passes without a designation of guardianship in place, their estate may become entrusted to a court appointed guardian, one that was not originally approved by the individual in question. This can mean that the appointed guardian will be handling the expenses and assets of the estate in a way that may or may not have aligned with what the incapacitated person would have wanted.

What Is A Designation of Guardian and How Does It Relate to Estate Planning?

Having a designation of guardian can be a key element of estate planning because it allows an individual to designate or choose a guardian for their estate before it is needed. In addition to this process allowing an individual to choose who they would like to act as a guardian, it also can allow them to identify those parties that they do not wish to serve as a guardian to the estate.

Once an individual is deemed incapacitated or passes, it is too late for a designation of guardianship to be put into place. Without this critical piece of estate planning, it may leave a person’s estate to go to a guardian that would not be of their choosing.

Situations in Which A Designation of Guardian May Be Needed

In many cases a medical power of attorney or durable power of attorney may be enough to protect an individual’s wishes should they become incapacitated. There are, however, cases when it is not enough, such as when:

  • a person appointed as agent is suspected of wrongdoing related to misappropriating funds or fiduciary responsibilities
  • an entity rejects a power of attorney
  • no alternate is named and the person originally appointed as an agent is incapacitated or has passed

In the event of each of these circumstances, there is typically a need for a new guardian of an estate to be court appointed. However, who that entity is may be predetermined if a designation of guardian is already in place.

Another consideration is that you may want different individuals to be guardians of different things. One example is that you want one person to be guardian of your physical person and someone else to act as guardian of your property.

Texas Requirements for Designation of Guardian

As with most aspects of estate planning, the state of Texas has specific requirements for designation of guardian. These are in place to protect the owner of the estate as well as the guardian. These requirements can include:

  • The person declaring a guardian cannot be incapacitated.
  • When typed it must have the signatures of two valid and credible witnesses not chosen to be guardian that are age fourteen and older.

While the above is widely considered to be the gold standard, in some cases, if the declarant does not bar anyone from becoming a guardian to the estate, the document may be signed by a notary rather than witnesses.

An Example of the Importance of Designation of Guardian

Two individuals who live together and are partners have put their affairs in order and designated each other to be their respective agents. One of them becomes incapacitated, but the other can care for them via a medical power of attorney they wisely drafted in advance.

Despite this conscientious preplanning, problems arise when a family member of the incapacitated believes they should be their guardian instead. At this point, it is likely that a legal battle will ensue to have that family member appointed as guardian, and if successful, it could nullify the orders set forth in a power of attorney.

The two individuals who had a medical power of attorney in place essentially end up being outdone by the appointment of a guardian for the incapacitated which is not what they originally planned for.

Executing a designation of guardian when a medical power of attorney and durable power of attorney already exist can seem redundant, but it is often recommended for the reason set forth in this example.

Why You Need an Attorney for a Designation of Guardian

While it is true that a designation of guardian can be written in the declarant’s handwriting, it must be done in advance of need and should utilize the language provided in the Texas Estates Code. An estate planning attorney has a great wealth of information regarding designation of guardian. With their guidance, a legal document can be drafted with confidence in the:

  • wording and terminology
  • proper identification of witnesses
  • overall validity of the document

To mitigate the risk of someone managing your estate without your approval in the event that you become incapacitated, speak with a Houston estate planning attorney today about putting a designation of guardian in place.