Stating who you would wish to have a guardianship if you are unable to act yourself.
I often get questions regarding what, if anything, can be done to designate a guardian for one’s self if the need arises in the future. My clients ask, “What if I suffer from mild dementia at a future date?” or “What if I suffer from Alzheimer’s disease?”
None of us likes to consider the possibility that we might be so incapacitated in the future that we might be unable to care for ourselves, but the hard truth is that it is a very real possibility for all of us.
One common concern is that someone might get a guardianship over us and their motivation might be more to control our estate than to offer assistance to us in our time of need.
You, and you alone, are best qualified to specify whom you would like to have serve as your guardian if the need ever arises. We all hope and pray that we will never be in the position of needing a guardian and chances are great that most of us will not, but if we are ever in that position, it could be comforting to know that our expressed wishes will still be considered.
So long as a future ward is not already incapacitated, he or she may designate by a written declaration the identity of guardian for both his/her person and/or his/her estate.
Unless the court finds that the person designated in the declaration is not qualified or would not serve the best interests of the ward, the court shall appoint the person designated in preference to those who might otherwise be entitled to serve as guardian under the Probate Code of Texas.
A person who has the mental capacity to execute legal documents may execute a document called a Declaration of Guardian in the Event of Incapacity designating someone they like and trust to serve as guardian of the person and/or estate if/when that person becomes incapacitated in the future. This document may also be used for the purpose of disqualifying someone from serving as guardian of declarant’s person and/or estate.
Naming a Guardian for your Children
It is appropriate to select and name a guardian who will raise your children according to your parental philosophies. You should be aware that sometimes the court may reject a guardian who it finds is unwilling or unable to care for your child. I, therefore, suggest that you name an alternative guardian who can step into the role if your primary guardian choice is unavailable or rejected by the court. I also recommend that you thoroughly discuss your decision with your chosen guardian to make sure the guardian is willing and prepared to accept the full responsibility of caring for your child as you wish.
Having named a guardian for your children is especially important if you are a single parent or in case both parents die at the same time. If you have not named a guardian for your children, the court appoints the guardian for your children—and may make a very different decision about that than you would have. Assert your right to make such parenting decisions and have them enforced by drafting a will—and updating it if the guardian you have designated dies or becomes incapacitated.