Appointing A Guardian - Estate Planning
Why appoint a guardian?
For children, if both parents pass away, they need to appoint a guardian to specify who should serve as the guardian of their children.
For adults, appointing a guardian allows you to designate someone in the event you have a long-term disability which requires extensive oversight / aid from non-incapacitated individuals.
Types of guardianships:
- Guardian of the estate: the guardian of the estate controls financial decisions for the ward such as property, bills, investment, and contracts; and
- Guardian of the person: the guardian of the person would take care of the ward in matters relating to housing, contact with family and friends, medical treatment, travel.
You can appoint the same individual as both or have different people serve as a guardian of the estate and as a guardian of the person.
Who should serve?
Because there are two types of guardians (estate and person), someone may be appropriate for the needs of one but not the other. Or, someone could be an appropriate guardian for both estates. A guardian is kept on a tight leash by the courts with reporting requirements, but a guardian does have hefty responsibilities. Only appoint someone whom you would deem responsible as a guardian.
Parents agree that Uncle Robert, a successful investment banker who travels a lot, would make a good guardian of the estate for their child. However, they agree that Aunt Mary (who is sweet, caring, and kind, but has a gambling issue) should be the guardian of the person of their children.
In this case, the parents could name two different people to serve as guardians. Or, they could select one person to serve as both.
Texas Law guides courts to appoint guardians in a specific order, starting with closer familial relationships and moving outward. You may, however, choose to specifically exclude someone from serving as a guardian.
For example, it would be a good idea to exclude Aunt Mary from the example above from serving as the child’s guardian of the estate because of her financial issues.
What purpose do guardianships serve?
Part of the purpose of estate planning is to avoid guardianships because there are many other less burdensome methods of handling property such as a power of attorney and trusts. However, it is important to appoint the appropriate people as guardians in the event it becomes necessary.