Can Minor Orphans in Texas Select Their Own Guardians?

IIn Texas, minor orphans who have reached the “age of discretion”—typically 12 years old or older—have the legal ability to appoint their own guardian. This law provides minors with a say in determining who will care for them and manage their estates. It is a safeguard for situations where the person originally appointed guardian may no longer be the best fit.

Why Parents Designate Guardians in Advance

Thankfully, most children will not lose both parents before they reach adulthood. However, life is unpredictable, and tragedies sometimes occur. That’s why parents often designate guardians in their Wills or Declarations of Guardian. By doing so, they ensure that someone they trust is ready to step in as the guardian of their children and their estates, should the unthinkable happen.

These designations provide peace of mind. It ensures that a person or couple parents believe are bestsuited for the role will care for their children if needed.

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

But what if circumstances change, and the designated guardian is no longer the best choice? For instance, suppose parents appoint an aunt as the guardian. However, as the children grow older, personality conflicts arise, and the children feel their grandfather would be a better caretaker.

Must the children remain with the originally-appointed guardian, or can they request a change?

A Case Study: In re Estates of Mary Christine Carrigan and David Homer Carrigan

The Court of Civil Appeals of Texas Tyler addressed this issue in In re Estates of Mary Christine Carrigan and David Homer Carrigan, minors. In this case, the Court initially appointed the children’s aunt as the guardian of their estate. However, after reaching the age of 14, the children requested that their grandfather take over as their guardian.

The aunt argued that the Court could not remove her as guardian unless she committed a disqualifying act. However, the Court disagreed. Based on its interpretation of the law and legislative history, the Court determined that minors who have reached the appropriate age of discretion have the right to choose their own guardian, even if it means replacing a previously appointed guardian.

Current Law Under the Texas Estates Code

Section 1104.054 of the Texas Estates Code has replaced the statute analyzed in the Carrigan case. Under this statute:

• If an application for guardianship is filed, a minor who is at least 12 years old may select a new guardian for their person or estate—or both.
• The court must find that the new selection is in the minor’s best interest before approving the change.

This legal right applies regardless of whether the current guardian has passed away, resigned, or been removed from guardianship.

The Court’s Role in Confirming a New Guardian

When a minor nominates a new guardian, the court evaluates whether the nominee is suitable and competent to fulfill the responsibilities of guardianship. If the court finds the nominee appropriate, it will revoke the previous guardian’s letters of guardianship and officially appoint the new guardian selected by the minor.

Conclusion

The ability of minors in Texas to choose their own guardians provides an essential measure of control during what is often an emotional and challenging time. This legal right ensures that guardianship decisions align with the best interests of the child, even as circumstances evolve.

If you are a parent considering guardianship designations or have questions about the guardianship process, consult with an experienced estate planning attorney to ensure your plans provide the best protection for your children.

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