Guardian for Children

If something were to happen to me, who would raise my children?

There are a lot of things to consider in choosing a guardian. For one person, making sure that the kids don’t have to switch schools is their top priority. Another parent may think that having their child raised in a home that aligns with their religious preferences outweighs any other consideration. Without your guidance, it could take a lengthy and emotional legal battle for your relatives and the court to figure out who to appoint as the guardian of your children. More importantly, this legal battle will be taking place without your input!

Our flat rate estate plans include a Designation of Guardian for Minor Children. In this document, you nominate who you want to raise your children in case anything ever happens to you. For a parent, this is arguably the most important document in our flat rate estate plans.

What happens if I have not designated a guardian?

As parents, you have the right to name the guardian of your children should they be orphaned. However, if you do not take the proper steps to designate a guardian for your children, the judge will decide who raises them.

How does the Judge decide who to name as guardian?

Texas assumes that you would want relatives (whether you actually do or not) to be named guardian if your child is orphaned. Therefore, the legislature set forth the following guidelines regarding who the court should appoint as guardian of your children:

  1. A grandparent. If there is more than one living grandparent of the child, the court will make a decision based on what the court believes is in the child’s best interest.
  2. If there are no living grandparents that are willing and able to care for the child, the nearest relative will be appointed. If there are two or more people that are the same degree of relationship to the child, then the court will appoint the person that the court believes is in the child’s best interest.
  3. If there are no relatives that are willing and able to care for the child, the court will appoint another qualified person to serve as the guardian.

Should I talk to the guardian before officially naming them?

Absolutely. It’s a big job to take on raising one or more children, and it’s important that you know they are willing and able to serve. Also, it opens the door for you to have a real discussion about what you could expect from them as guardians.

Do I need to have a lawyer prepare the document?

A lawyer is not technically required for you to have these documents. It’s almost always better to have a set of legal eyes and consultation prior to executing a document that could have such a profound impact on your children’s lives.

I am going out of town for a week and leaving my kids with a relative. How do I make sure they have the power to take care of the child(ren) while I’m gone?

At The Haw Law Firm, we prepare a document called a Designation of Health Care Agent form in our standard estate plan. In this form, you name health care agent (s) to consent to medical care and other important powers while you are not available to make the decisions for your child.