Most people never need a guardian. But if you ever become unable to manage your own affairs, or if you die while your children are minors, a court may have to choose someone to make decisions. Texas lets you make that choice ahead of time. A designation of guardian is a simple document that tells the court who you want, and who you don't want, to serve.
Two kinds of designations
Designating a guardian for yourself
Under Texas Estates Code Section 1104.202, an adult can sign a written declaration naming the person they want to serve as their guardian if they later become incapacitated. You can name alternates in order of preference. You can also name people you specifically do not want to serve, and the court will treat them as disqualified.
Designating a guardian for your children
Parents can name a guardian for their minor children, either in a will or in a separate written declaration. If both parents die, or the surviving parent can't serve, the court gives priority to the person the last surviving parent named. Parents of an adult child with a disability can also designate a guardian to take over if they die or can no longer serve.
Why a designation matters
- Your choice counts. The person you name has priority, as long as they're qualified and it's in your best interest (or your child's).
- You can keep someone out. If a relative would be a poor choice, you can disqualify them in writing.
- It reduces family conflict. When everyone knows your wishes, there's less to fight about.
- It can speed things up. The court has clear direction instead of weighing competing applications.
How to make it valid
Texas law sets formal requirements. A declaration designating a guardian generally must be:
- Signed by the person making it, and
- Either witnessed by two credible witnesses who are at least 14 years old and are not named as guardians in the document, or written entirely in the declarant's own handwriting
It can also include a self-proving affidavit signed before a notary, which makes it easier to use in court later without testimony from the witnesses. The Estates Code includes suggested forms. Because small mistakes can make a declaration hard to use, many people sign it at the same time as their will and powers of attorney.
Tip: Keep the original in a safe place your family can find, and give copies to the people you named. Store it with your will and powers of attorney so everything is together if it's ever needed.
Can the court ignore a designation?
The court must follow the designation unless the person named is disqualified, or the court finds that appointing them would not be in the ward's best interest. Common reasons a named person might not be appointed include a criminal history that disqualifies them, a conflict of interest with the ward, or being unable to serve. That's why naming one or more alternates is a good idea. See who can serve as a guardian.
Changing or revoking a designation
You can change your mind at any time while you have capacity. Revoke the old declaration in writing or sign a new one, and let the people named know. If you're divorced, review your documents; Texas law may treat a designation of a former spouse as revoked after divorce, but don't rely on that alone. Update your paperwork.
How a designation fits with other planning
A designation of guardian is a backup plan. The first line of defense is usually a set of documents that avoid the need for a guardianship entirely:
- A statutory durable power of attorney for finances
- A medical power of attorney and directive to physicians
- A HIPAA authorization
- A will, which can also name a guardian for your children
If those documents work, no guardianship may ever be needed. If one is needed anyway, your designation tells the court who you trust. See guardianship vs. power of attorney and alternatives to guardianship.
For parents of children with disabilities
If you're the guardian of an adult child with a disability, think about what happens when you can't serve. Naming a successor in your will or a written declaration, and building a special needs trust, can give your child stability. Our guide to guardianship for an adult child with disabilities covers this.
Getting it done
Attorney Jesus R. Lopez prepares designations of guardian, wills and powers of attorney for families in Seguin, Guadalupe County and nearby areas, in English or Spanish. Learn more on our wills and probate page.
Frequently asked questions
Is a designation of guardian the same as a power of attorney?
No. A power of attorney gives an agent authority now or upon incapacity, without court. A designation only tells the court who you want as guardian if a guardianship case is ever filed.
Can I name a guardian for my children in my will?
Yes. Parents can name a guardian for their minor children in a will or in a separate written declaration.
Can I keep a specific relative from becoming my guardian?
Yes. A designation can name people you don't want to serve, and the court treats them as disqualified.
Does the person I name have to live in Texas?
No, but a nonresident guardian must appoint a resident agent in Texas to accept legal papers, and the court will consider whether they can serve effectively from a distance.
Have questions about your situation? Talk with a Seguin guardianship lawyer. Consultations are free, by phone or in person, in English or Spanish.
Related guides
This article is general information about Texas law, not legal advice for your situation. Laws change, and every case is different.