Appointment of Guardian for my Children in the Event of My Death of Incapacity 

One issue that lurks in the back of every parent’s mind is, “What happens to my children if something happens to me?” If both you and your spouse die, the State of Texas, through a judge, will decide who takes care of your children until they are grown.  Any judge having to make such a decision wants to know what the parents thought was in the best interest of their child.  That is why the Appointment of Guardian for My Children in the Event of My Death or Incapacity becomes such an important part of the estate plan drafting. I have found that this is the most difficult document for parents to complete.  All the other decisions that must be made in drafting an estate plan pale in comparison to this one.

One thing I point out to clients is that if you do not name guardians and then both you and your spouse die, there may be a dispute among the families as to whom should raise your children.  So, at a time when your children need both families to rally around them, the “adults” may be so busy fighting about who is to have custody that your children are overlooked.  Then, when the fighting is over, both sides will forever have trouble encouraging your children to maintain a relationship with the others.  

If you have minor children, nothing could be more important than naming guardians for them in case of your incapacity or death.  Some attorneys only name guardians for minor children within an individual’s Will.  I prefer to use a free-standing document separate from the Will.  There are several reasons for this.  First, as your children get older, the guardians you named when they were very small may not be the best guardians for a pre-teen.  With a separate document we can make changes without disturbing your Will.   Second, you must consider that sometimes a parent may not die, but rather may become incapacitated due to illness or injury.  For example, your spouse may pre-decease you and then you suffer from a brain injury that leaves you unable to care for yourself.  This means you will no longer be able to care for your children.  In that case, a Will is not effective in appointing someone to be guardian of your children because you did not die – and therefore – your Will containing your guardianship wishes cannot be probated.  

If one parent survives the other, the surviving parent is the natural guardian of his or her minor children.  In a divorce situation, this means that even though you are the custodial parent of a child, the non-custodial divorced parent will be presumed to be the best guardian. There are exceptions to this.  When I discuss this situation with clients, I offer suggestions on handling this matter.  In the event that both of you die and leave minor children you must insure you have named guardians. You must decide who should be asked to assume the responsibilities of raising your minor children. 

There are a significant number of considerations that must be examined in making such an important decision.  Some of these include: (1) the ages of your children; (2) the number of minor children; (3) whether or not the potential guardians have children of their own; (4) the health and ages of the potential guardians (3) whether or not they share your values. 

Then, there is the question of whether or not you should name couples as guardians, or individuals.  If you name couples, then you will need to decide whether or not you want either party to serve alone as guardian in the case of divorce or death of one of the spouses.  For an example, if you name your sister and brother-in-law as guardians, and then your sister dies, do you want your brother-in-law to serve alone? 

Let me make a very important fact very clear.  A Court will appoint a guardian for you children based on the best interest of the children.  Your wishes will be presumed to be in the best interest of the children, but contrary evidence can be presented, and if the court finds a significant problem with the appointment of the persons you name in the declaration, the court will name a different guardian.  This is an added layer of protection for your children.  The Court, however, will not simply second guess your choice for no reason.

By now I realize your head is spinning!  There is just so much to think about that you may have never previously considered.  I can help you with these decisions just as I have helped many other couples.  It may also help to know that I was a school counselor for 13 years before becoming an attorney.  I am very knowledgeable of childrens’ emotional and physical development and needs. With my counseling background and your knowledge of your children, I am certain you will be able to make such an important decision.

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