Can Minor Orphans in Texas Select Their Own Guardians?

In Texas, minor orphans who’ve reached the age of discretion, usually 12 or older, can ask the court to appoint the guardian they prefer. The law gives children a voice in deciding who will care for them and who will manage their estates, especially when the person originally named as guardian may no longer be the best fit.

Why Parents Designate Guardians in Advance

Thankfully, most children won’t lose both parents before they become adults. But life’s unpredictable. Sometimes tragedies occur. That’s why parents appoint guardians in a Will or a Declaration of Guardian. The designations bring peace of mind because they assure parents that people they trust will have the legal authority to care for their children if needed.

What Happens If the Guardian Isn’t a Good Fit?

But sometimPerhaps the court appointed someone as guardian, but as the children grow, personality clashes develop. Do they have to stay with the guardian, or can they ask the court to appoint someone different?

That was the issue the Court of Civil Appeals of Texas, Tyler considered in In re Estates of Mary Christine Carrigan and David Homer Carrigan, minors. In this case, the court initially appointed the children’s aunt to manage their estates. After the children turned 14, they asked the court to appoint their grandfather instead.

The aunt argued the children could not remove her unless she’d done something disqualifying. The court disagreed. Looking at the statute and its history, the court held that minors who’ve reached the age of discretion may choose their own guardian, even if that replaces someone previously appointed.

What the Texas Estates Code Now

Today, Section 1104.054 of the Texas Estates Code has replaced the statute that the Court analyzed in the Carrigan case. Under this statute, a minor who is at least 12 may apply to select a different guardian of the person, the estate, or both. This legal right exists regardless of whether the current guardian has died, resigned, or been removed from guardianship.

How the Court Confirms a New Guardian

When a minor requests a new guardian, the court will evaluate if the person they nominate is qualified to serve as a guardian. If the court determines that the nominee is qualified, it will revoke the previous guardian’s authority and officially appoint the new guardian selected by the minor. Letting minors have a say in guardianship decisions gives them some control during what can be a difficult period in their lives. It prioritizes their best interests as their lives change.

Naming a guardian is one of the most important decisions parents need to make . If you are a parent naming a guardian in your estate plan or have questions about the guardianship process, scheduling a consultation with an experienced estate planning attorney can help you consider your options.

This article was originally published on December 21, 2019 and updated on January 6, 2025.