Texas law provides that parents are the natural guardians of their children in most instances. However, if the parents die, or if a minor child inherits property, legal action may need to be taken to protect and provide for the children and their assets. In this article we will discuss guardianships for minor heirs. Austin probate lawyer Farren Smith can help prepare an estate plan and assist the family with common issues encountered when caring for children, such as guardianships and estate planning.
A guardianship is a relationship established by a court of law. The relationship is between the person who needs help (ward) and the court-appointed person or entity acting on the ward’s behalf (guardian). Guardianships are court-supervised legal proceedings. In a guardianship, the court designates a person to make decisions for the child or incapacitated individual and oversees the actions.
Guardianships can be established for minors or incapacitated adults. Minors are defined in Texas law as anyone under the age of 18 who has not been married or legally had minority removed in a court proceeding.
A guardian may be appointed to act on behalf of a minor child or the child’s estate or both. Guardianships can be expensive and time-consuming because the court is actively involved in the findings and services authorized by the guardian on the child’s behalf.
Types of Guardianships
Texas law provides for several different types of guardianships. The two main types of guardianships for children in Texas are guardian of the person and guardian of the estate.
In guardianships of the person, the guardian has the legal right and responsibility to the extent set out in the court order to make personal decisions for the child and take care of the child’s physical well-being. Such decisions might include where the child will live, where he can go, what contact he has with others, what medical treatment he may receive, and what personal rights he may have.
In guardianships of the estate, the guardian has the legal right and responsibility to the extent set out in the court order to handle the child’s money, property, and financial affairs. For example, the court may authorize the guardian to make decisions about investing the child’s money and buy or sell the child’s property.
The same guardian may be guardian for both the person and the estate. If the court appoints a guardian of the person and estate, that guardian acts to the extent set out in the court order to care for the personal and financial needs of the child. A full guardian of the person and estate has authority over all aspects of the child’s care and estate.
Who May Be Named Guardian
The court determines who will be appointed the guardian. For minor children, Texas law provides priority in the following order:
- The person designated by the last surviving parent of the child in a properly executed designation or declaration of guardian; and
- Nearest relative (i.e., grandparent, uncle, etc.).
The court has discretion as to who will be best to serve in the needed position. The court can disqualify some individuals and choose others based on their experience, education and abilities.
Duties of a Guardian of the Estate of a Minor Heir
The guardian of the estate of a minor heir is held to a high standard of action. This standard is that of a fiduciary to act on behalf of the minor. The guardian is responsible for all financial transactions of the property on behalf of the child, and must provide accountings to the court. The guardian must post a bond (insurance) that he will act properly.
It is necessary to seek the help of an attorney with guardianship proceedings. Having an attorney in Travis County can help facilitate this somewhat complicated process. A probate or family law attorney can also help in advance with naming preferred guardians in Wills and proper legal declarations in the event that something should happen and the children would need a guardianship established. If you have questions, please contact Austin probate attorney Farren Smith for a consultation.
- Tex. Estates Code