Declaration of Guardianship

What Is a Declaration of Guardianship?

A Declaration of Guardianship is a legal document that indicates your preference to the court regarding who you want to serve as guardian if there is ever a guardianship proceeding for you. Your declaration of guardianship can address your preference for: 

• Guardian for Your Minor Children 
• Guardian of Your Estate 
• Guardian of Your Person 

Protect Your Children 

A Declaration of Guardian of Minor Children is a formal way for you to tell a court who you want to take care of your children if you are unable to do so.  In most cases, this only becomes an issue if you and your spouse both die or become incapacitated. However, this protects children if the surviving parent becomes severely physically disabled or is not able to continue care on their own. A declaration of guardian also permits you to specifically disqualify an individual from serving as your child’s guardian. 

Protect Your Estate  

A Declaration of Guardian allows you to have control of who a court appoints to serve as the guardian of your estate if you, at some point, become incapacitated. This is especially important if you want to prevent an estranged family member from attempting to take control of your financial affairs from someone you have appointed agent by accusing your agent of mismanagement. It’s important to know that once Guardian of an Estate has been appointed, the financial power of attorney is automatically revoked. 

Protect Yourself  

A Declaration of Guardian is important even if you have a power of attorney in place. When a person appointed as an agent becomes incapacitated, and no alternate has been named, a Guardian of a Person can be appointed by a court. If you want to have control of who a court appoints to serve as guardian of the person, the Texas Estates Code permits you to designate a guardian of the person in the event that it’s needed. 

Declaration of Guardian Requirements 

• The person signing the Declaration of Guardian (the “Declarant”) must not be incapacitated. 
• The Declaration of Guardian must be written in the declarant’s handwriting, or if not: 
• It must be signed by two credible witnesses in the declarant’s presence who are 14 years of age or older and not named as guardian or alternate guardian in the designation. 
• It is possible to attach a self-proving affidavit signed by the declarant and witnesses attesting that the declarant is competent and has signed the declaration. 
• The declaration can be in any form that adequately indicates the declarant’s intention to designate a guardian in advance of need, but the Texas Estates Code does provide suggested language to use. An experienced estate attorney will be familiar with code and can guide you in completing a valid Declaration of Guardian that will hold up in court.