Who Can Be a Guardian? By Randy Michel on June 19, 2020

           Are you reading this because you want to know if you can be a guardian? Or perhaps you are wondering if your elderly aunt is even eligible to be a guardian of your grandmother. (Right now, I am outside grilling steaks during this Pandemic. So excuse me if we get interrupted.) You may remember that in previous blogposts, we discussed, first, what is required to establish a guardianship and, second, the types of guardianships there are in Texas. (As I sprinkle some of Chef Paul Prudhomme’s Magic Seasoning Blends Meat Magic), let’s answer these two questions: what’s it take to be a guardian? And, when two people are vying to serve as guardian, how is that contest resolved?

Qualifications of a Guardian

            It is easier to list what would disqualify a person from being appointed as guardian than to list one’s qualifications. A person is disqualified from serving as guardian, if the person falls into one of the following categories (there are others but they are much less common):

1. A minor or incapacitated person;
2. One who by reason of inexperience, lack of education, or any other good reason is shown to be incapable of properly and prudently managing and controlling the proposed ward or his estate;
3. A person, institution, or corporation found to be unsuitable;
4. One whose conduct is notoriously bad;
5. A party (or children of a party) to a lawsuit affecting the welfare of the proposed ward (unless the judge determines that there is no conflict or appoints an attorney to represent the ward’s best interests);
6. A person who owes the proposed ward money or who has asserted a claim or filed a lawsuit against the proposed ward;
7. Nonresidents who fail to designate a resident agent for service of legal papers; and
8. A person who has been found to have committed family violence and who is the subject of a Protective Order, if the proposed ward is protected by that Order.

            Stated differently, if you do not fall into any of the above categories, you can get to first base and are at least eligible to be appointed as guardian. (Excuse me.  It’s time to turn over those steaks and season the backsides.)

If Eligible, Who Has Priority to be Appointed as Guardian of a Minor?

            If two people who are qualified to serve as guardians both seek to be appointed guardian, how is that decided? Let’s talk first about selection of a guardian of a minor. If both parents are living and they are living together, then no court appointment is necessary for a parent to act only as guardian of the person of a minor. Both parents are natural guardians of the person of the minor. But there is no “natural” guardian of the estate of a minor, so either parent has priority to be appointed guardian of the minor’s estate. If the parents cannot agree who should be appointed, then the judge appoints the one who is better qualified to serve, in the judge’s opinion.

            If both parents are living but they are not living together, both parents have an equal right to be appointed guardian. The judge makes the ultimate determination as to whose appointment would be in the best interest of the minor.

            If one parent is deceased, then the surviving parent is the natural guardian of the minor’s person and is entitled to be appointed guardian of the estate.

            If both parents are deceased, the order of preference for the guardian of both the person and the estate of an orphan is:

• the person named in a Will or written designation by the last surviving parent;
• the nearest ascendant in the direct line of the minor (like an aunt or uncle, etc.); if there is more than one ascendant in the same degree in the direct line, the one whose                                       appointment would serve the best interests of the minor, considering all of the surrounding circumstances;
• the nearest of kin, if there is no qualified ascendant in the direct line willing to serve; if there are two or more kin in the same degree, the one whose appointment would serve the best interests of the minor, considering all of the surrounding circumstances;
• if there is no qualified relative or if no one entitled to be appointed applies, any qualified person appointed by the judge.

            A minor twelve years of age or older may request a person be named as her guardian. The minor must file a written request with the clerk of the court. But the minor’s selection is not absolute. The judge must approve the selection as being in the best interest of the minor.

If Eligible, Who Has Priority to be Appointed as Guardian of Someone Other Than a Minor?

            Let’s talk now about the selection of a guardian for a person other than a minor. Here, the judge must give preference to the ward’s spouse, assuming there is a spouse and the spouse is eligible to serve. If the ward has no spouse or the ward’s spouse is not eligible to serve, then the nearest of kin who is eligible is entitled to be appointed.  If there is no qualified spouse or relative willing to serve, any qualified person may be appointed by the judge.

Contests Between 2 or More Potential Guardians

            What happens if two or more persons are equally entitled to serve, how is someone selected to serve? In that event, the judge must appoint the one whose appointment would best serve “the best interests of the ward.” Sometimes the judge is assisted in this determination by a jury.

            In a recent case out of San Antonio, the judge heard a contest between the “significant other” with whom the proposed ward had lived for eight years versus the proposed ward’s great-niece. Guided by the Estates Code, the judge gave preference to the incapacitated person’s nearest of kin (the great niece). Moreover, the Code directed the judge not to appoint as guardian someone who is indebted to the proposed ward—e.g., the significant other. The judge heard testimony that the proposed ward had paid an IRS debt owed by his significant other; the significant other had used $2,100 of the ward’s $5,000 per month allowance to pay the girlfriend’s mortgage on her own home; and the girlfriend had directed payroll checks out of the ward’s business accounts to the girlfriend’s ex-husband, stepson, and daughter. The judge had little problem finding that the great-niece was the better choice as between her and the significant other.

            We are not finished with this worldwide pandemic, but those steaks on the grill sure are. But don’t forget:  if you have questions about or need assistance with who is qualified, or who should be selected, as guardian of a ward’s person or estate, seek the guidance of a qualified attorney familiar with the Estates Code and guardianship law—whether or not they know a thing or two about cooking mouth-watering steaks.