Guardianship Support Attorney
Parents have a legal, financial, and moral responsibility to raise their children until they reach the age of majority, typically 18. But several unexpected events may require a parent to consider guardianship for their child. This includes situations where both parents die unexpectedly, leaving the child an orphan and a court may need to appoint a person or some other person to act as a guardian of the child’s property. There are also many cases where an incapacitated adult may require guardianship because they can no longer manage their personal affairs or property.
David J. Rodriguez is an experienced San Antonio guardianship attorney. He has 30 years of experience handling family law matters for clients. He can advise and represent you in a guardianship dispute. Call his office today at (210) 716-0726 to schedule an initial consultation.
When Does a Minor Require a Guardianship in Texas?
Although we commonly associate guardianship with incapacitated adults, there are many cases where a minor may be the subject of a formal control proceeding in Texas. Here are a few examples:
- The child is orphaned due to the death of both of their parents.
- The minor inherits or receives property and requires a guardian to manage it.
- The minor has special needs and will require a guardian after they turn 18.
In each scenario, a court must appoint a qualified guardian to act for the minor–or ward as Texas law refers to the subject of guardianship. In some situations, the minor’s parents can also serve as guardians. Of course, if the parents are deceased, that will not be possible.
Here is an additional explanation about how each type of guardianship for minors works in Texas.
The death of both parents’ orphaned minors.
Both natural parents are typically presumed to be a child’s natural legal guardian until that child reaches 18 years of age. There are exceptions, notably when a court has severed a parent’s parental rights or the child has been legally adopted. But as long as the child has one surviving parent, guardianship is typically unnecessary to provide for the child’s basic care.
In the case of an orphaned child, however, a guardian must be appointed by a competent Texas court. If the last surviving parent had a will appointing someone to act as guardian, that person has priority to serve in that role. A court may also select a guardian named in a choice if the surviving parent becomes incapacitated and can no longer effectively care for the child independently.
However, it is important to note that a parent’s appointment of a guardian through their will is always subject to the court’s review and approval. A judge will not appoint a disqualified guardian, deceased, refuse to serve, or in the court’s judgment, would not serve the minor child’s best interests as guardian.
Suppose the last surviving parent left no will or failed to nominate a qualified guardian willing to serve. In that case, Texas law prioritizes the “nearest ascendant in the direct line of the minor” to serve in that role. Typically, this means that if the child has a surviving grandparent, they have priority to act as guardians. But if there is more than one surviving grandparent or qualified ascendant, the court will decide who will serve based on determining the child’s best interests.
Minors who inherit or receive property
There are two distinct forms of guardianship. A guardianship of the person involves exercising decision-making authority over the basic care of a ward. But there is also a guardianship of the estate. This person receives or manages property on the ward’s behalf.
Even when a minor child has two living parents, there are still situations where one parent will need to be named as guardian of the child’s property or estate. For example, if a minor receives an inheritance from another relative, such as a grandparent, a guardian must manage those funds until the child turns 18. Similarly, an orphaned child may require a guardian to manage property received from the parents’ estates.
In many cases, a parent must establish guardianship. Many financial institutions will only release funds to a parent-appointed guardian of the minor’s estate. And the parent will need to make regular reports to the court concerning handling guardianship property.
Minors who have special needs and require guardianship in adulthood.
Not every person has the capacity to make decisions for themselves just because they turn 18. We are not talking about a teenager who may be irresponsible with money. Many children have special physical and mental needs that persist into adulthood and, in many cases, will require them to remain under guardianship indefinitely.
The parents of a special needs minor will need to go to court and establish guardianship if they wish to continue exercising decision-making authority for their child’s care and property after they reach legal adulthood. Alternatively, parents may find it necessary to establish guardianship for a child who suddenly becomes incapacitated in the majority. For example, suppose you have a child in college who is incapacitated in a serious car accident. In that case, guardianship may be necessary so the parents can take certain legal actions for their adult child.
Who Can Contest a Texas Guardianship Proceeding?
As with any legal proceeding, a Texas court must hold a hearing and follow certain basic norms of due process before creating guardianship and appointing a guardian. Even when a deceased parent nominated a guardian for their minor children through a will, the court’s role is not to simply “rubber stamp” that selection. The court’s primary legal responsibility is doing what will be in the best interest of the minor or adult ward.
It is also not uncommon for other family members or interested parties to contest a guardianship proceeding. For instance, even if one relative was named in a parent’s will to serve as guardian for their minor children, another relative may believe they would be a better guardian and contest the proceeding. And even when guardianship has already been established, an interested person could still petition the court to remove or replace the guardian for being unfit or neglecting their legal responsibilities.
Speak with a San Antonio Guardianship Attorney Today
Guardianship contests are often emotionally charged, especially when relatives are fighting over who will care for a child who lost both of their parents. But even in adult guardianship cases where the ward is an incapacitated adult, some legal issues must be addressed. If you are involved in any current or potential guardianship proceedings, you must receive timely, competent legal advice from an attorney who understands this delicate area of the law.
The Law Office of David J. Rodriguez, PLLC, has over three decades of experience providing family law services to the people of San Antonio. Call them today at (210) 716-0726 to schedule an initial consultation so they can sit down with you and learn more about your current situation and how we can help.