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Is My Guardian Designation In My Will Enough? What Happens To My Kids If I Don’t Die, But Become Incapacitated?

Posted by Jason English | Sep 25, 2023 | 0 Comments

One day in protective services is too much for your child - Call Jason S. English Law to designate a guardian for your child if you die or become incapaciated

As a parent, you try to anticipate the future as much as possible. You think of the good moments to come, like graduations and weddings, but also the negative things that could happen, such as your death before your child reaches adulthood. You do what you can to prepare for these situations. You have probably already created a guardian designation for your children in the event of your death, but what about if you are incapacitated? Is it enough to name a guardian in your Last Will and Testament, or do you need to do more? Choosing a guardian for your minor children in case you die or become incapacitated is a critical part of your estate plan.

If you need to create or update your estate plan, the experienced estate planning attorneys with Jason English Law in Austin may be able to assist you. Call (512) 454-7548 to discuss your legal options.

Why Do I Need to Designate a Guardian for My Minor Children?

Most parents have thought about who they would want to raise their children if the parents died. Death, especially our own, is not a pleasant thought, so some parents have avoided the topic. However, death is not the only time a parent may need someone else to take care of their child for them.

Other situations in which a parent may need someone else to take care of their child include:

  • If both parents are incapacitated.
  • If a single parent is incapacitated or dies and the other parent is unfit.
  • If a parent wants to specifically disqualify someone from being their child's guardian.

Is My Guardian Designation in My Will Enough?

Both married and single parents often opt to put a guardian designation in their Will. This can be very effective if the single parent or both married parents die, but is it enough if they are still alive but unable to care for their children? The designation in the Will may be enough for the court to appoint that person as the children's guardian. However, that possibility assumes that someone will search for and find the parent's Will to see whether there is a guardian named. If the parent is only incapacitated, no one may think to look for their Will.  Also, if you are incapacitated the Will has no legal affect until you die.  Contrary to a lot of common practice, it is not enough to only designate a guardian for minor children in your Will.  

A Declaration of Guardian of Minor Children is a separate document that allows a parent to name the person they want to care for their child if they are unable to do so themselves. This document can also be used to name a guardian of the parent's estate and of the parent themselves, if they need one. Whether the designation is only in the Will or the separate declaration form, parents should be sure to talk to the person they want to be guardian to make sure they are willing to take on the role.

What If My Child's Other Parent Is Present But Unfit?

For many single parents, a big concern is their child being placed in the custody of the other parent. Texas Estates Code states that when one parent dies, the child's other parent is the natural guardian of the child. However, the court strives to act in a child's best interests. This means that if a parent believes their child's other parent is unfit, they may be able to get someone else named guardian over the child.

What Is Considered an Unfit Parent in Texas?

Simply disagreeing over things like whether homework should be done before or after dinner or whether macaroni and cheese is an appropriate dinner three nights in a row does not mean that a parent is unfit. When considering a parent's fitness to have custody of their child, the two biggest factors that can cost the parent custody are abuse or neglect. If there is a history of child abuse or neglect, whether it is for the child in question or another child, it can be grounds for the court to decide the parent is unfit.

Other reasons the court may decide a parent is unfit include:

  • Being involved with drugs.
  • Previous or current incarceration.
  • History of emotional abuse toward a child or incapacitated adult.
  • Having clearly created an unsafe environment.
  • Neglecting to uphold their duties as a parent.
  • Untreated psychiatric illness that creates a danger for themselves or others. (Mental illness alone is not grounds to declare a parent unfit. The illness must be untreated and cause the parent to be a danger to themselves, the child, or others.)
  • Social functioning issues, such as refusing to leave their home to take the child to school, activities, or functions that would allow the child to make friends.

How Do You Prove a Parent Is Unfit?

Proving a parent is unfit requires evidence. For abuse or neglect, documenting the dates and times of the incidents as well as taking photos of bruising or other injuries or of indications of neglect can help. Police reports can also help with abuse, neglect, and substance abuse matters.

For some circumstances, such as an untreated psychiatric illness or social functioning issues, parents may need to get expert witnesses, such as therapists, to testify. A child custody evaluator may also be necessary in these cases. If you believe your child's other parent is unfit, Jason English Law may be able to help you determine how to prove this and ensure your guardian designation is honored.

What If My Child Is, or Will Become, an Incapacitated Adult and I Become Incapacitated?

For some parents, the worry of who will look after their child if the parent dies or becomes incapacitated does not stop when the child turns 18. For parents of a special needs child or a child who has become incapacitated due to injury or illness, there is a concern over who can be the child's guardian after the child is an adult. If the child is currently a minor, parents should first understand that when the child turns 18, they assume all rights of being a legal adult, regardless of their special needs. The parent would need to consider guardianship alternatives or seek legal guardianship themselves at that point.

Guardianship vs. Alternatives

According to Navigate Life Texas, guardianship in Texas over a special needs or incapacitated adult often requires regular reviews to ensure the guardianship is still meeting the needs of the ward. If the ward needs more assistance or has gained new skills, the guardianship may change to reflect this change in status. Additionally, the guardian may need to renew the guardianship annually.

Depending on the adult child's specific special needs, a guardianship may not be necessary. In some cases, there may be alternatives to guardianship that allow the adult child to have more independence while also giving the parent or guardian control where needed. Examples of these alternatives include:

  • Support decision-making agreements.
  • Directives to doctors.
  • Durable powers of attorney (POA) for financial or healthcare decisions.

How to Appoint a Guardian After You Die or Are Incapacitated

If guardianship is required for your adult child, the court would appoint a new guardian if you died or became incapacitated. Like when the child is a minor, you can create a guardian designation for the court to approve. You should discuss this designation with the person you intend to name and confirm that they can take on the responsibility. You can also help increase the chances of the court approving your designation by making sure your designated guardian is thoroughly informed and up to date on your adult child's needs and condition.

Additionally, you should consider the financial implications of naming someone guardian of your adult child. Because this designation lasts the lifetime of either the guardian or the ward, a special needs trust may be necessary to provide the cash flow and savings required for the guardian to financially care for your child. If the trust is substantial enough and written properly, you may even be able to provide for the guardian's healthcare, retirement, and other necessary expenses so they can focus on caring for your child.

Have You Made a Guardian Designation in Case You Are Incapacitated?

Whether you are single or married, if you have children, you should consider making a guardian designation, both in your Will and as a separate document, to ensure your children are cared for if you die or are incapacitated due to illness or injury. While you hope you will never need to use it, you will feel peace of mind knowing that if the worst happens to you, your children will be taken care of by someone you have hand-selected rather than by someone chosen by a judge who does not know you or your children.

If you need to designate a guardian or make other changes to your estate plan, contact Jason English Law at (512) 454-7548 to schedule an appointment.

About the Author

Jason English

Jason English grew up in his dad's personal injury law practice in Tarrant County, graduated from Texas A&M before getting his law degree from St. Marys University School of Law. Initially he worked in his father's firm on personal injury, wills and probate, as well as, family law cases. Soo...


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