When a person is unable to care for themselves, or their property and finances, due to a mental disability or severe physical disability, a guardianship may be necessary. A guardianship is a legal proceeding. When a court determines that a person is incapacitated—unable to care for themselves or their property—the court will appoint a guardian to make decisions regarding the incapacitated person’s care and finances. Before a person becomes incapacitated, however, they can state in advance who they would want to serve as their guardian in the event of later incapacity. This written statement is a legal document called a “Declaration of Guardian in the Event of Later Incapacity or Need of Guardian”. Once a person makes the declaration, a court must honor the person’s designation of guardian as long as the designated individual can qualify under the law to serve as a guardian. Additionally, a person making a Declaration of Guardian can disqualify an individual, who might otherwise be eligible to be selected as guardian, from serving as their guardian. Some people may find this useful if they have family members who they do not trust or who are not responsible with managing money.
Just like a medical power of attorney and durable power of attorney, a Declaration of Guardian must be signed by the person making it and notarized. In cases where a person is being disqualified from serving as guardian, the Declaration of Guardian must also be witnessed.
A guardian is a fiduciary and must meet the legal definition of eligibility to serve as guardian, under Texas law, to be appointed as a guardian. An estate planning attorney with Law Office of Adriane S. Grace, PLLC can advise you about who is eligible to serve as guardian under Texas guardianship law and assist you with making a Declaration of Guardian that is signed and witnessed in accordance with Texas guardianship law.
