What is a Guardian?

A legal guardian is a person who has the legal right to make decisions about the welfare of a person who is not legally able to do so.  Most of the time, the subject of guardians involves children or minors.  In Texas, a minor is anyone under the age of 18.  Although minors have some rights such as getting a job, they are not permitted to take title to property, authorize medical treatment, or a variety of other activities.  If a person dies without naming a guardian for any minors, the state must appoint one.  The process of having a guardian appointed is beyond the scope of a website, but it can be costly and emotionally devastating.  This is especially true if multiple relatives fight over the minor.  Courts prefer to place a minor with a blood relative but they may not.

Naming a guardian in a valid will tells the court whom you prefer to raise your children if you are not able.  The court is NOT bound by your choice like they would be regarding who inherits assets.  For example:  if you name your sister as guardian she goes to court to get the guardianship approved stone drunk, the judge is not going to honor your wishes.  Judges want to defer to your wishes and will attempt to do so.  In the end, they must look out for the best interest of the minor.  Occasionally this may mean choosing someone other than the person you chose.   It is far better to make your wishes known.

For a married couple, the guardian would always be the surviving parent if there is one.  Although it is rare, both parents may be in what we call a “common disaster”, or one dies and one is not legally competent.

So how do you choose a guardian?  Spouses occasionally cannot agree on the person who should raise their children for a variety of reasons.  I have been in many conversations doing a fact find and an argument erupts.  How awkward.  Whoever you choose must be the same in both wills.  Since the trustee of your childrens’ trust can be someone other than the guardian (or not) the most important consideration is the living environment, worldview, stability etc.

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