How to Establish a Guardianship in Your Will

Texas law provides a mechanism for protecting the interests of those considered incapacitated and in the care of another. That process, known as guardianship, allows an individual to legally appoint someone to take over as caretaker of a child or incapacitated person if the original caregivers are deceased. With the help of a will attorney, establishing guardianships in a will in Kyle, TX, is a straightforward process.

How to Establish a Guardianship in Your Will and How a Kyle, TX, Will Attorney Can Help

Speak With an Attorney

Guardianship is taken seriously by the legal system in Texas. Through the establishment of guardianship, the rights of the incapacitated can be removed temporarily or permanently. Therefore, before moving forward with any guardianship proceedings, it’s critical to consult with an attorney who specializes in will establishment and guardianship. Legal representation is often required in guardianship proceedings in Texas, and having a lawyer to guide you is wise.

Selecting a Guardian

When establishing a guardianship in your will, you will first select a person you deem fit to serve as guardian. That guardian can be a family member of the incapacitated person, but that isn’t a requirement. In Texas, there is also a provision to petition the court to appoint a private professional guardian to protect the interests of the incapacitated person. It is also wise to select a successor guardian in case the original guardian is unwilling or unable to serve.

Include the Guardianship Information in Your Will

After selecting a guardian, your attorney can include the guardian’s name and your wishes in the will. However, in Texas, including a guardian in your will doesn’t automatically mean that person will be named guardian upon your passing. Guardianship is a court-created relationship, which means that the court will ultimately decide whether the chosen guardian can and is willing to prioritize the best interests of the incapacitated person or child.

Filing an Application With the Court

Once legal representation is secured and a guardian has been selected, an application must be filed by your lawyer for a guardianship hearing in the appropriate court. In larger counties in Texas, the probate court handles hearings related to the establishment of guardianship. However, in some less populated counties, another court, such as the county court, may oversee the guardianship proceedings. Court approval is required for all guardianships.

Attending a Hearing 

The court will set a hearing to consider the guardianship request. There may be background checks performed on the prospective guardian, and the court will decide if the individual can and will consider the best interest of the child or incapacitated person. Disqualifying factors could include having filed for bankruptcy in the last seven years, having felony convictions, or having prior convictions for physical or sexual abuse.

Finalizing Your Will

When the guardianship application has been approved, your attorney can help you finalize your will. Once the terms and stipulations in the will are clearly described in a written will, you must sign the will in the presence of at least two credible witnesses.

Though establishing a guardianship in your will in Texas is a straightforward process, there are multiple steps involved. To get more information on overall estate planning, contact Artie Pennington Law Offices in Kyle, TX, today.

Posted in Guardianship | No Comments »