Declaration of Guardianship for Oneself

A Guardianship is a legal proceeding in which an individual is appointed to provide for an incapacitated person. As most people who undertake the proceeding find, having a Guardian appointed by a court can be a burdensome and expensive process. In addition, court-appointed Guardianships often cause great strife among family members as issues regarding who should be appointed, or whether appointment is necessary at all, often arise. Because many see a formal, court-appointed Guardianship as something that should be avoided, many individuals choose to plan for incapacity in advance of need via their estate planning. In fact, incapacity planning undertaken by means of a Statutory Durable Power of Attorney or Revocable Living Trust is highly recommended.

Texas probate law also provides for the execution of a document called a Declaration of Guardianship in the Event of Later Incapacity or Need of Guardian, which is often termed the slightly more concise “Declaration of Guardian for Oneself.” The specifics of this legal document are found at Texas Probate Code section 679, and include the requirement that the Declaration be witnessed by at least two witnesses over the age of 14 and include a self-proving affidavit. The primary objective of the form, of course, is to pre-designate who should serve as your Guardian in the event of your future incapacity. Its premise is to abate any questions as to who should serve in this role if and when you are unable to make such a choice.

As mentioned, however, this objective is most often—and arguably, better—achieved through use of a Durable Power of Attorney. It is strongly suggested that you discuss with the Wills & Trusts attorneys at Garg & Associates the similarities and differences between the two documents, and which would be best suited for your particular needs. It is, though, generally accepted that a Declaration of Guardian for Oneself does have two primary benefits. The first is that the Declaration can serve to specifically disqualify an individual from being appointed as your Guardian who would otherwise have priority to serve as such under the law. The Declaration is also beneficial in instances where it is desired to terminate the authority of a person appointed as your agent under a Statutory Durable Power of Attorney. Since Texas law provides that the appointment and qualification of a Guardian terminates the power of an agent under a Power of Attorney, preparing a Declaration of Guardian for Oneself can serve to end your appointed attorney-in-fact’s control.

As with any advance directive or estate planning vehicle, the key is to thoroughly understand the functions of a document and its propriety for use under your unique circumstances. We invite you to call upon the qualified Houston Estate Planning attorneys at Garg & Associates to discuss the preparation of a Declaration of Guardian for Oneself or other more suitable planning documents.

We invite you to contact us for a consultation. Call Garg & Associates, PC at 281-362-2865 or complete our contact form.

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Garg & Associates, PC | 21 Waterway Avenue, Suite 300 | The Woodlands, Texas 77380 Please call 281-362-2865 | Fax: 866-743-4506
Serving The Woodlands, Spring, Houston, Conroe, Kingwood, Tomball, Cypress, Huntsville, Cleveland, Stafford, Montgomery County, Harris County, West Oaks, Memorial, Sugar
Land, River Oaks, Alief, Stafford, Missouri City, and Southwest Houston Texas.