Guardianship Declaration for Children

Welcome to the Kazi Law Firm! We are a boutique law firm steeped in Texas tradition personifying the warmth and congeniality consistent with southern hospitality. We believe in preserving integrity and professionalism with true Texan charm, staying true to our roots, while providing essential, affordable legal services to all. Located just north of Dallas, Texas in the rapidly growing suburb of Frisco; the Kazi Law Firm concentrates on contracts drafting and review, immigration law, will & estates, real estate law, landlord, tenant, mediation, and general business law needs.

Given the current pandemic, clients have been contacting the firm in droves to draft Guardianship Declarations for their children. An overwhelming majority of those individuals are front-line workers who need the peace of mind that this document provides.

What is a Guardian?

A guardian is a person with the legal authority and duty to care for the well-being and property of a designated minor or incapacitated person. Children under the age of 18 and adults that are found by a court to be unable, due to physical or mental condition, to care for their basic needs and/or manage their financial affairs are considered legally incapacitated. Texas law requires a person, called a guardian, to be appointed to manage their affairs.

Parents are the natural guardians of their minor children. If one parent dies, the surviving parent continues as their natural guardian. No court intervention is necessary at this point. However, in all other cases, a court will appoint a guardian with responsibility for the well-being (guardian of the person) and the property (guardian of the estate) of the incapacitated person or minor child (if both parents are deceased). In many cases, a court appoints one guardian for both purposes.

What is a Declaration of Guardian?

A Declaration of Guardian is a formal way for parents to tell a court who they want to take care of their children if they, the parents, are unable to do so. Typically, this becomes an issue at the death of the second parent, but a
a guardian may also need to be appointed if the last surviving parent becomes severely disabled and is not able to continue to care for their child.

Isn’t it Part of the Parent’s Will?

Many online DIY Wills websites will include a declaration of guardian in the parents’ wills, giving people a false of security. However, it is strongly advised for parents to make their declaration a free-standing document, separate from their Will. Rember, a Will may not be found or submitted to a court for several weeks or even months after the death of the parent, but a child will need to have at least a temporary guardian appointed almost immediately. Also, keep in mind that having the declaration separate from the Will means that the person who is named can keep a copy and submit it to the court immediately for appointment. This will save the child a lot of grief and angst.

A court will appoint a guardian for your children based upon the best interest of the children. The parents’ 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. However, keep in mind that the Court will not second guess your choice for no good reason.

Furthermore, it’s advised that each parent make a separate declaration. Typically, if one parent dies, the children will remain in the care of the surviving parent, or placed in the care of a non-custodial divorced parent, regardless of what a declaration of guardian says. If there is a particular reason you think your child’s other parent should not have care and custody of the children when you die, you should speak to an experienced
attorney to find out your options.

Should the Children Stay Together?

Although most parents name one guardian for all their children, you can name different guardians for each child. You may want to do this if you have a large number of children, or if you have a child with special
needs. It is entirely up to you and depends upon your particular circumstances. If you do want to name separate guardians for different children, do separate declarations for each. If you have separate declarations for each child, you should name all children on the form where it asks about your children, and then state which child this declaration applies to, and also state that a separate declaration exists for
the other children.

Should you Name a Couple or a Single Person?

You can name a married couple as a guardian, or an individual person, married or single. If you name a married couple as the guardian of your children, they are referred to as “co-guardians.” If you name a married couple as co-guardians, it’s important to consider what you want to happen if one spouse can no longer serve – either because of death or divorce. For example, if you name your sister and her husband as co-guardians, but you would not want to name your sister’s husband the sole guardian if your sister dies, then you should change the wording in the declaration to reflect that if one of the co-guardians can no longer serve, then the other should not continue and that the contingent guardian should take over the responsibilities.

As you can see, it’s quite complex to designate a guardian for your child or children. A guardianship declaration is a decision not to be entered into lightly. It requires careful consideration and long term thinking. This powerful document is an excellent tool for future planning and provides family members with peace of mind that their loved ones will be properly taken care of according to their wishes.

I built my law practice on the premise of being a life raft in a sea of sharks. I want to be an advocate for those that have been wronged and are too intimidated to seek help. My firm is here to explore your options, guide you through your legal journey, and give you that safe space to ask questions! There’s no such thing as a stupid question…Only the ones you don’t ask. So, my question to my clients is not “do you have any questions?” But rather “what questions do you have?”

As always, the Kazi Law Firm is standing by to help you in your time of need. Don’t hesitate to contact us today. We specialize in real estate law, landlord-tenant disputes, immigration, and wills & estate planning. Family is at the core of our practice. Just as we treat our family with respect and understanding, we treat yours. Come join the Kazi Law Firm family today!

Why swim alone in shark-infested waters when you don’t need to?