Orphaned children are not just the plot of a fictional book or horror movie, but a fact of real life. When thinking about our children, nobody wants to consider their untimely death. However, choosing a guardian for your child is just as important as your decision for your child’s education, healthcare, and religious or moral training.
Why Parents Should Choose Their Child’s Guardian
When a parent fails to legally designate a guardian for their child, the results can be devastating. Real life examples include (1) relatives fighting in court over who will be the orphan child’s guardian; (2) court-appointed guardians who mismanage the orphan child’s assets; (3) court-appointed guardians who are too old, infirm, or negligent; or (4) informal caregivers who steal the Social Security benefits of the orphan child in their care.
If a parent dies before designating a guardian, a state court must make that decision. And those decisions are dictated by state guardianship laws. In Texas, our state’s guardianship laws state that the child’s relatives in “the third degree by consanguinity” (pronounced CON-SAN-GWEN-IT-EE) have the right to be appointed guardian. Included in that definition is living great-grandparents, grandparents, and adult aunts and uncles from both the mother’s and father’s side of the family. And it’s the oldest generational relatives who have the highest priority (think: grandparents).
Not only is that a lot of people who could argue, fight, and protest, but some of them may include people who the parent would never trust with their child’s care.
Who Should a Parent Designate as their Child’s Guardian?
A lot of times parents fail to choose a guardian for their child because they struggle to find someone who is both a good caregiver and is financially responsible. Fortunately, in Texas, we allow parents to designate different people for those roles. A parent can choose a guardian of the person of their child, and separately, a guardian of their child’s estate. The guardian of the person has the duty of raising the child and providing for their basic needs. The guardian of the estate is responsible for managing the money or property the child will inherit from their parents and also has the right to file lawsuits on behalf of the child.
Careful consideration should be given to the two guardianship roles and to the people in the child’s life who could fulfill those roles responsibly. Parents should also consider whether a court would agree with their selections for guardian. Does this person have a criminal history? Do they have enough experience or education to raise a child? Do they have any issues with money such as bankruptcies or poor credit?
Finally, if parents are choosing a different person in each guardianship role, consideration should also be given to the relationship of the two people designated. Do they know each other well enough? Will they get along? Will they act in the child’s best interest when it comes to making decisions of financial significance? Or, will they use their respective positions as bargaining chips for withholding access to the child?
How to Legally Designate a Guardian for Your Child
Designating a guardian is more than just telling your friends and family about your wishes. You also need a legally defensible plan. In Texas, a parent must make their advance designation of guardian for their child in writing. The designation can be made in a stand alone document or in a Will. Either way, the designation must be signed by the parent and two witnesses. A parent’s legal designation must be honored by a judge unless the person designated is otherwise disqualified by law.
Because an advance designation is admissible in a later guardianship proceeding, parents should consider hiring an estate planning attorney to assist them with properly documenting their choice(s) for guardian. An estate planning attorney can also assist parents with preparing additional legal documents such as a trust for their child. A trust could avoid the need for a guardian of the child’s estate and gives the parent greater flexibility to appoint a bank or other corporate fiduciary to act as trustee. This can be particular useful if the parent expects to leave their child substantial assets that require more complex financial management skills.
Designating a guardian for your child is essential to preserving your legacy. Don’t delay.
If you have questions about guardianship for your child in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area, contact me, an Estate Planning and Guardianship Attorney, for a consultation. In addition to in-person consultations, I am available by teleconference and videoconference. I have assisted and advised many parents with designating guardians and trustees for their children. Additionally, I have successfully represented and assisted newly single parents and caregivers in probate and guardianship proceedings involving minor children.