Selecting Your Own Guardian Protects Your Interests

While you are healthy, you may choose someone to become your Guardian should you ever need a Guardian in the future. This gives you control over your own future guardianship.

A “Declaration of Guardian” may be made by a competent adult. It must be written, signed, and witnessed by two people. The person chosen as Guardian cannot also act as witness. The Declaration must be notarized.

You may also “disqualify” any person from ever being your guardian under any circumstances. This protects you from people you may want to avoid, like former spouses. If you name your spouse as Guardian but later get divorced, he or she is automatically disqualified.

The Declaration must have a “self-proving affidavit” to allow a Judge to accept your choices. The affidavit is proof that you were competent at the time you signed the Declaration and that the Guardian will act in your “best interest”.

Some people are disqualified by state law from acting as your guardian. My office (210-826-1122) will send you, free of charge, information on who the law allows to be a guardian.

You do not need to file the Declaration with the Court in advance; however, the person you chose as Guardian will need to file it when he or she goes to court to become your guardian (when the need arises for a guardian). Keep the original in a safe place, and let your intended Guardian know about it.

Your Declaration should list a first choice for Guardian and several back-ups. If the first choice is not available when needed, the alternates will be in line to replace the first choice. A Declaration of Guardian may be revoked by tearing it up, or by making a new declaration that supersedes the old one.

Original Publication: San Antonio Express News, November 24, 1989

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Paul Premack has been a Board Member and has served as President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) and is a Member of the Washington Chapter of NAELA. He is *Certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in the States of Texas and Washington and handles Estate Planning and Probate in Texas and Washington, including and Bexar County and King County Probate, Wills, Living Trusts, Durable and Medical Powers of Attorney, and Elder Law. Premack writes the legal column for the San Antonio Express News which is syndicated in other Hearst Newspapers around the USA.

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