Designating Your Guardian While You Still Can
Monday, July 27, 2009
Contributed by: Ronn P. Garcia
Most people tend to think of a “guardian” as something a child needs. However, an adult may need a guardian should he or she ever become incompetent. Who will be your guardian should you ever need one? Are you comfortable having someone else make that decision for you?
If you become incapable of caring for your own physical or financial wellbeing, anyone who is aware of your situation may ask a court to declare you incompetent and appoint one or more guardians to care for you. Unfortunately, the court-appointed guardian may not be the person you would have preferred to be in control of your wellbeing. In fact, the appointed guardian might be someone you would never have chosen to serve.
Imagine a situation in which a married couple is cohabiting in an undesirable relationship and one of them becomes incompetent. Generally, if appointed by a court, a spouse would have first priority as the incompetent’s guardian. There have been cases in which courts have appointed one spouse as the other spouse’s guardian despite previous conflicting interests. For most people, such a result would be a clear travesty.
You may find comfort in designating your own guardian. In Texas, with a “Designation of Guardian Before Need Arises,” you can name the person whom you would like to care for your physical, mental, emotional, and financial wellbeing. You are also able to name the person whom you would not like to serve as your guardian. Another benefit of this document is that, if circumstances require, you can revoke your designation as long as you are still competent.
Effective September 1, 2009, the Texas Legislature has authorized a different execution procedure for effectuating this designation under the Probate Code. Thus, it is important to consult with an attorney should you wish to know more about effectively naming someone as your guardian.
This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
