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Guardianship

Have you ever wondered what makes a person qualified to be a guardian? Or, if more than one person qualifies as a potential guardian, how does the Court place each person within the hierarchy of possible guardians? The Estates Code answers all of these questions.

Generally, only one person can be appointed as guardian of an estate or a person. However, exceptions do exist (as they often do in the law). There can be joint appointment, if it is found to be in the best interest of the incapacitated person or ward, of either a husband and wife, joint managing conservators (divorced parents), or any other co-guardians that we appointed by the laws of other states. The Estates Code mandates that before appointing a guardian, the court must make a reasonable effort to consider the incapacitated person's preference of the person to be appointed guardian, and must give due consideration to the preference indicated by the incapacitated person.

If the incapacitated person or ward does not, or cannot, indicate a preference the legislature has created a hierarchy of people that should be appointed as that person's guardian. If the court finds that two or more eligible persons are equally entitled to be appointed guardian, the spouse of the incapacitated person is entitled to the guardianship. The spouse's preference is higher than any other potential guardian for obvious reasons. This is the person that the incapacitated person chose to spend the rest of their life with, it should be assumed that the spouse would have the best interest of the incapacitated person at heart in any decision that they make for that person.

If the incapacitated person does not have a spouse, or the spouse is ineligible for some reason, the eligible person nearest of kin is the next. Finally, if either of these two people are not eligible for appointment as guardian, the court can appoint any other eligible person.

If you have any questions about who would become your guardian should you become incapacitated, or would like to create a document establishing who your guardian would be should you become incapacitated, please feel free to contact our office at (940) 891-4800 to set up an appointment.

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