Incapacity

FAQs About Powers of Attorney and Directives

Can I Appoint My Own Guardian In Case I Become Incapacitated?

by Rania Combs

A power of attorney can generally eliminate the need for a guardianship; however, a guardian may sometimes be required despite having a Texas medical power of attorney and Texas durable power of attorney.

For example, there are occasions when financial institutions reject a power of attorney; a person appointed as agent becomes incapacitated or dies, and no alternate has been named; or a person appointed as agent is suspected of misappropriating funds or otherwise breaching his or her fiduciary responsibilities.

In such cases, a guardian of a person or of an estate can be appointed by a court.

If you want to have control of who a court appoints to serve as your guardian, the Texas Estates Code permits you to designate a guardian of your person or your estate in the event of later incapacity or need.

A declaration of guardian also permits you to specifically disqualify an individual from serving as your guardian.

This can be especially important if you want to prevent an estranged family member from attempting to take control of your financial affairs from someone you have appointed agent by accusing your agent of mismanagement, because once a guardian of an estate has been appointed, the financial power of attorney is automatically revoked.

The following are the requirements of a valid Declaration of Guardian :

  • The person signing the Declaration of Guardian (the “Declarant”) must not be incapacitated.
  • The Declaration of Guardian must be written wholly in the declarant’s handwriting, or if not:
    • It must be signed by two credible witnesses in the declarant’s presence who are 14 years of age or older and not named as guardian or alternate guardian in the designation.
    • If the Declaration of Guardian does not specifically disqualify an individual from serving as guardian, the Declaration of Guardian can be signed by the declarant and acknowledged by a notary instead of being signed in the declarant’s presence by witnesses.
  • It is possible to attach a self proving affidavit signed by the declarant and witnesses attesting that the declarant is competent and has signed the Declaration.

The declaration can be in any form that adequately indicates the declarant’s intention to designate a guardian in advance of need, but the Texas Estates Code does provide a suggested language that can be used.


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