Can A Minor Orphans Select Their Own Guardians?

Fortunately, most children will not be orphaned before they reach adulthood, but occasionally tragedy strikes.

That’s why parent appoint guardians in a Will or Declaration of Guardian. We want to make sure that in the event of the unthinkable, the person or couple we believe is best suited to care for our children and their estates will be appointed as guardian.

But what happens if the person or couple parents appoint is not a good fit. For example, suppose parents designate an aunt as guardian, but a personality conflict develops and the children decides they would rather their grandfather be their guardian?

Are the children stuck with their aunt or can they request a change?

This is the situation that the Court of Civil Appeals of Texas Tyler considered in In re Estates of Mary Christine Carrigan and David Homer Carrigan, minors. The children’s aunt had previously been appointed guardian of the children’s estate; however, once the children reached 14 years of age, they requested that their grandfather be appointed guardian.

In the case, the aunt argued that she could not be removed as guardian unless she committed a disqualifying act; however, the Court determined, based on its analysis of the law and legislative history, that a child who has reached the appropriate age of discretion could select his or her own guardian to supersede a previously appointed guardian.

The statute the case analyzed was one now replaced by Section 1104.054 of the Texas Estates Code, which provides if an application is filed for guardianship of the person or estate, or both, a minor who is at least 12 years old may select another guardian or the person or estate, as long as the court finds that the section is in the minor’s best interest.

This is regardless of whether the person who was appointed guardian dies, resigns, or is removed from guardianship.

Once a guardian is nominated by a child who has reached the age of discretion, the court will determine whether the person selected by the minor is suitable and competent. If so, the court will make the appointment and revoke the letters of guardianship issued to the prior court-appointed guardian.