Can I Name a Relative Who Lives Abroad as Guardian of My Children?

A colleague in a listserv to which I subscribe asked an interesting question: Can parents name a relative who lives in a foreign country as guardian of their children?

Here’s the situation: The clients are foreign nationals permanently residing in US, and their children are US citizens, having been born in this country.

Neither husband nor wife have any next of kin residing in the United States. As part of their estate planning, they want to name a relative who lives abroad as guardian in the case of their incapacity or death.

This happens every day in our very mobile world. Most of us have family members who live in different states in our country, and the United States is home to people from countries all over the world who may still have family living abroad.

And most people would agree in considering the best interest of a child, it would be better for a child who is orphaned to be cared for by relatives that a parent selects, even if they reside overseas, than foster parents who may be complete strangers.

The plain language of the statutes support the idea that a next of kin who is a nonresident can be appointed as a guardian, as long as a resident agent to accept service of process is appointed:

• Section 1104.052 of the Estates Code relating to guardianship for minor orphans says that a nearest ascendant “is entitled to guardianship” of the person, and if no ascendant exists, the court “shall appoint” the nearest next of kin. That language appears to be mandatory rather than permissive.
• Section 1104.103 of the Estates Code provides that a court “shall appoint” the person designated in the Will or declaration to serve as guardian in preference to any other person otherwise entitled to serve unless the court finds that the person designated as guardian is disqualified, is deceased, or refuses to serve. Again, this language appears mandatory rather than permissive. To read about what disqualifies a guardian, read: People Ineligible to be Appointed as Guardian.
• Additionally, Section 1104.357 of the Estates Code provides, “[a]person may not be appointed guardian if the person is a nonresident who has failed to file with the court the name of a resident agent to accept service of process in all actions or proceedings relating to the guardianship.” This suggests that a nonresident who appoints a resident agent to accept service of process is eligible to serve as guardian.

Although there is a section in the Estates code that gives the court discretion to remove a guardian who is absent from the state for a period of three or more months without the court’s permission or moves out of state, nonresidence is not a per-se disqualifying factor.

The only case law I have found pertinent to this issue is Ramirez vs. Garcia de Bretado, a case out of the El Paso Court of Appeals. It involved a maternal grandmother and resident of Mexico, who had been appointed guardian of orphaned children.

The paternal uncle challenged the appointment claiming that nonresidency disqualified the grandmother. The court disagreed, writing that Texas law does not prohibit the appointment of a nonresident as guardian and found, based on the statute I mentioned above, that there is a presumption that the maternal grandmother was the best qualified person to be guardian (even though she resided in Mexico).

Note however, colleagues have warned that what is technically supported by statute and case law does not necessarily guarantee how a court will rule. One colleague described a case in which he was involved where a judge prevented a terminal parent from naming her sister, a citizen and resident of a foreign another country, as guardian, reasoning that if the children were taken to that country, the court would not have the jurisdiction to protect the children.

As a result, if you intend to name a foreign national as guardian, it is wise to also name an alternate who resides in the United States, so that you have certainty that a guardian of your choice, even if not your first choice, will be appointed.