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Appointing A Legal Guardian Of My Child In An Estate Plan

Don't let your child go to Protective Services, designate a legal guardian for your minor child in your estate plan to cover death and incapacity

One of the scariest thoughts for a parent is what will happen to your children if you die or become incapacitated while they are still young. Someone will need to take care of them. Hopefully, this is someone who will respect your wishes and raise them in the way that you would have raised them yourself, had you survived. You do not have to leave this important decision to chance. By appointing a legal guardian in your estate plan, you can let your wishes be known. An estate planning lawyer from Jason English Law can explain your options.

Consider calling the experienced legal team at Jason English Law and requesting a confidential consultation by calling (512) 454-7548.

What Is a Legal Guardian?

A legal guardian is someone who takes on the role of parenting a minor child. Like parents, guardians will have the right to make important decisions regarding the minor children, including their education, health, and moral upbringing.  Sometimes it may be desirable to designate a guardian of the person and a guardian of the estate who are two different people. In these instances, the guardian of the person will attend to the responsibility of raising the child, while the guardian of the estate will be responsible for managing the minor's property.

What Is the Difference Between a Legal Guardian and a Godparent?

Some religions have godparents whom the parent has chosen to help guide the child spiritually. There may be a religious ceremony in which this person plays a role. Their name may be included on a religious record. In other cases, people may refer to a loved one not related by blood or marriage casually as a godparent. In either case, however, this title does not confer any legal standing.  If you want your child's godparent to serve as their guardian in case of your death, you will need to take additional steps to communicate this preference, which are described below.

What Happens if You Do Not Appoint a Legal Guardian?

If you do not appoint a legal guardian, the court will do it for you. However, you risk the possibility of someone you would not have wanted to have this important role in your child's life being appointed as the legal guardian. Because Texas courts rely on legally defined degrees of kinship to assign guardians, it may not matter whether your child previously had any personal relationship with the person identified as closest relative. That can result in an awkward and stressful situation for guardian and child alike. You can avoid this possibility by appointing a legal guardian of your children. An estate planning lawyer from Jason English Law can help prepare written declarations and other estate planning documents that clearly communicate your wishes.

If Parents Are Divorced

Under Texas law, the surviving non-custodial parent has an automatic right to custody of the child, even if the deceased parent is divorced and the surviving parent did not previously have custody. Texas lawmakers recognize the importance of a child having frequent contact with both parents. Therefore, if you die, the other parent is entitled to guardianship.

If Both Parents Are Deceased

If both of a child's parents are deceased, the court follows a specific order to determine who should be appointed as guardian of the minor child. The court looks first to the nearest ascendant, which is the nearest grandparent. If there is no living ascendant, the court then looks to the relatives of the nearest degree of relation. If there are two or more people who are equally related to the child, the court chooses the one believed to be in the best interest of the child. If there is no relative or no one willing to accept guardianship, the court can appoint a qualified person to be the guardian. If the child is 12 or older, their preference will be considered.

How Do I Appoint a Legal Guardian for My Child?

You can prepare a last will and testament or written declaration in which you communicate your preference for a legal guardian for your child. The declaration can also include alternate appointments in case the first person you name cannot or will not serve as guardian. You can also list anyone you would not want to serve as guardian. You can use this type of declaration to nominate a guardian in case of your death or incapacity.

The document, which must be notarized and witnessed, includes the following information:

  • Your name
  • A clear intention that you are designating a guardian for your minor child
  • The preferred guardian
  • A guardian of the estate
  • A statement whether the guardian can serve with or without bond
  • Your signature
  • The date

Legal Process of Appointing a Legal Guardian for a Minor Child

Texas Health and Human Services explains that the process of appointing a legal guardian include the following steps:

  • Filing an application with the court
  • Having a hearing before a judge
  • Having a judge appoint a guardian

Under Texas law, the court must appoint the person you named in your written declaration unless that person:

  • Is disqualified
  • Is deceased
  • Refuses to serve as guardian
  • Would not serve the minor's best interest

Considerations for Appointing a Legal Guardian

Choosing a guardian to take responsibility for a minor child involves far more considerations than simply whether you like the person, or whether the child has a strong relationship with them. Here are some characteristics you might want for the person who serves as a legal guardian of your minor children:

Willingness To Follow Your Instructions

Ideally, the person appointed as guardian should raise their wards in the same way the child or children's' parents would have done, had they survived. To ensure that the guardian knows what the parent's preference might have been, many people designating a guardian in an estate plan choose to include instructions for the guardian addressing areas they consider especially important. In general, individuals who choose this process also prefer to choose as guardians people they can trust to follow whatever instructions are provided.


You might prefer for your child to continue living in the same area they were in before your death. This may provide more routine and familiarity during an undeniably difficult time in their life.


While no one wants to think about who may be able to be a backup parent for their child, this is critical when deciding whom to appoint as a guardian. Many parents prefer to designate as guardian someone who already has a strong relationship with their child or children.

Financial Soundness

For anyone who will have access or control over your child's property or benefits, you may prefer to appoint someone who is good at managing money and prudently investing. In some cases, the person with greatest physical proximity to or strongest personal relationship with the child might not be skilled at managing assets, and in those situations a parent may wish to consider designating a guardian of the estate and a guardian of the person separately.

Alternative Options

You can name alternate guardians in case the primary person you selected cannot serve or is not appointed. This provides a backup plan in case your original selection is not fulfilled according to plan.

Contact Jason English Law for Help Appointing a Legal Guardian

We understand that considering appointing a legal guardian for your children can be emotionally overwhelming. Our compassionate and dedicated estate planning attorneys can help ensure that your wishes are carried out if something should ever happen to you.

If you need help appointing a legal guardian, or with any part of your estate plan, consider contacting Jason English Law. You can arrange a confidential consultation by calling (512) 454-7548.

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