SELF-DESIGNATION OF POTENTIAL GUARDIAN 

August 2009 

                                                                                                           By:  James M. Bright

Attorney at Law

The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

            This firm has recently received questions regarding what, if anything, can be done to designate a guardian for one’s self if the need arises in the future?  What if I suffer from mild dementia at a future date?  What if I suffer from Alzheimer’s disease?

            None of us likes to consider the possibility that we might be so incapacitated in the future that we might be unable to care for ourselves, but the hard truth is that it is a very real possibility for all of us.

            One common concern is that someone might get themselves appointed as our guardian whose motivation might be more to control our estate than to offer assistance to us in our time of need.  It is for this reason that Texas Probate Code §679 was enacted to codify the procedure for appointment of a potential guardian if and when the need arises by giving us an opportunity through preplanning to guide our own destiny even if we later lose the ability to do so.

            A premise which must have been instrumental in drafting this statute is that the person most aggressive in seeking guardianship for a person who is beginning to need care is not necessarily the person who would best serve the needs or (just as importantly) the desires of the person needing care or assistance (hereinafter called “ward”).

            One such example occurred and was witnessed in my own practice when a widowed parent remarried, and the children of the first marriage never really approved of the parent’s second spouse.  This can be true even if the parent and second spouse have been married for thirty years or more.  In the instant case cited by this firm, Mom was removed from her home with her second spouse (after 15 years of marriage) and placed under the supervision of her eldest son.

            The above example does not tell us from the facts “on its face” whether what occurred was or was not what Mom wanted.  It could have been either exactly what Mom wanted, or it may have been the fruition of Mom’s most frightful nightmare.

            The point is that you, and you alone, are best qualified to specify whom you would like to have serve as your guardian if the need ever arises.  We all hope and pray that we will never be in the position of needing a guardian and chances are great that most of us will not, but if we are ever in that position, it could be comforting to know that our expressed wishes will still be considered.

            So long as a future ward is not already incapacitated, he/she may designate by a written declaration the identity of guardian for both his/her person and/or his/her estate.

            The formalities of guardian designation before the need arises are very similar to the requirements of a valid will in that it may be:

1.         Written wholly in the handwriting of the declarant; or

2.         Attested in the presence of the declarant by at least two credible witnesses who are 14 years of age or older and are not named either as a guardian or alternate guardian in the declaration.

            As with most important documents, you may be best served by consulting an attorney of your choosing rather than the “do it yourself” method in your handwriting, but either is enforceable if properly done.  It is, however, worthy of note that a properly prepared affidavit may be made self-proven at the time of execution and, therefore, become a ruling document when filed at any time after an application for appointment of a guardian has been filed.

            An interesting feature of a designation of guardian prior to need is found in Paragraph (b) of §679, The Texas Probate Code, where it states, “A declarant may, in the declaration, disqualify named persons from serving as guardian of the declarant’s  person or estate, and the persons named may not be appointed under any circumstances.”  This ends up being very strong language to make certain that persons you designate as ineligible for appointment never can be appointed against your wishes.

            Unless the court finds that the person designated in the declaration is not qualified or would not serve the best interests of the ward, the court shallappoint the person designated in preference to those who might otherwise be entitled to serve as guardian under the Probate Code of Texas.

            If you wish to designate persons whom you would prefer to have serve as your guardian in the event that the need later arises or to specifically exclude certain persons from ever being appointed in that capacity, you are strongly encouraged to see an attorney of your choosing who is qualified to advise you in this matter.

James Bright is admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas.  He maintains an office in Houston and by appointment another at