In Texas, a declaration of guardian is a document you sign while you are still competent that tells a court who you want appointed as your guardian — and who you want permanently barred — if you later lose the ability to make your own decisions. Under Texas Estates Code § 1104.202, the court must appoint the person you named unless that person is disqualified or serving would not be in your best interests, and the court has no authority at all to appoint anyone you specifically excluded.1State of Texas. Texas Estates Code 1104.202 – Designation of Guardian for Declarant It is the most direct way to keep control over who manages your care and finances after you can no longer speak for yourself.
Two Powers in One Document
The statute gives you two separate tools. The first is designation: you name the person you want appointed, and that person moves to the front of the line ahead of anyone else who might petition. The second is exclusion: you name people you do not want appointed, and the court cannot appoint them under any circumstances, even if they are the only family member willing to serve.1State of Texas. Texas Estates Code 1104.202 – Designation of Guardian for Declarant
The exclusion power is absolute in a way the designation power is not. A designee can still be rejected if the court finds them unqualified. A disqualification you write in the declaration binds the court no matter what. In families with estranged members or difficult relationships, that veto is often the most valuable part of the document.
Guardian of the Person, Guardian of the Estate, or Both
Texas treats these as two distinct roles. A guardian of the person handles medical treatment, living arrangements, and daily personal care. A guardian of the estate handles money: paying bills, managing investments, protecting income. You can name the same person for both or split the roles between two people.
Splitting makes sense when the person you trust most with healthcare decisions is not the person you trust most with finances. Texas allows only one guardian per role, with limited exceptions: a married couple appointed jointly, both parents of an incapacitated adult, or co-guardians already serving under another state’s laws, if the court finds a joint appointment in the ward’s best interests.2State of Texas. Texas Estates Code 1104.001 – Guardian of the Person or Estate Your declaration should state clearly which role or roles each person is being named for.
What to Put in the Declaration
There is no mandatory template. The statute cares about execution formalities, not language. That said, the document is only useful if a court can act on it, so certain information needs to be there.
- The full legal name of your designated guardian, plus enough identifying detail (address, relationship to you) that the court can locate and verify the person.
- At least one alternate guardian, and preferably two, in case your first choice cannot or will not serve when the time comes.
- Whether each person is being named as guardian of the person, of the estate, or both.
- The full names of anyone you want permanently disqualified from serving.
Think carefully about the exclusion list. Without it, the court might appoint an estranged sibling, a parent you have a difficult relationship with, or anyone else who petitions and appears qualified on paper.
How to Sign It
Texas gives you two ways to execute a valid declaration. You can write the entire document by hand, in which case no witnesses are required at all. Or you can type or print the document and sign it in the presence of at least two credible witnesses.3State of Texas. Texas Estates Code 1104.203 – Requirements for Declaration
If you use the witnessed route, the witnesses must be at least 14 years old and cannot be anyone you named as guardian or alternate guardian in the declaration itself.3State of Texas. Texas Estates Code 1104.203 – Requirements for Declaration Those are the only two restrictions. Unlike with a will, the statute does not require witnesses to be disinterested or bar them from benefiting from your estate. A neighbor, coworker, or adult child who is not named as your guardian can witness.
The handwritten option is particularly useful when gathering two witnesses is impractical. If you take that route, every word must be in your own handwriting. A printed form you fill in by hand will not qualify.
The Self-Proving Affidavit
You can attach an optional self-proving affidavit to a witnessed declaration. Signed by you and your witnesses before a notary, it attests that you were competent at the time of signing and that the document was executed properly.3State of Texas. Texas Estates Code 1104.203 – Requirements for Declaration
With the affidavit, the court can accept the declaration without calling your witnesses to testify. Without it, anyone challenging the designation can demand the witnesses appear in court, and if one has moved or died in the meantime, proving validity gets harder. A trip to a notary now avoids a serious problem later.
Making Sure the Person You Name Can Actually Serve
Naming someone does not guarantee the court will appoint them. Under Texas Estates Code § 1104.101, the court independently evaluates whether your designee is qualified and whether appointing them serves your best interests.4State of Texas. Texas Estates Code 1104.101 – Appointment According to Circumstances and Best Interests Your declaration gives them priority; it does not override disqualifying facts.
A guardian must be a competent adult. People with certain criminal convictions, particularly offenses involving harm to children or elderly individuals, are typically disqualified. So is anyone previously removed as a guardian for cause, anyone party to a lawsuit against you, and anyone who owes you money. The court also looks for conflicts of interest. Pick someone whose background will survive that scrutiny.
Have a direct conversation with the person before you name them. Guardianship can last years or decades, and the role involves court-filed reports and ongoing oversight. The person you name should be organized, trustworthy, and willing to take it on.
Where to Keep the Signed Declaration
A declaration no one can find when it matters is no better than none. Keep the original somewhere secure but accessible, and make sure at least two trusted people know where it is. Common choices: give the original to the person you named as guardian, keep it with your other estate planning documents, or leave it with an attorney who handles your affairs.
When incapacity is later determined through a court hearing, your designated guardian or their attorney presents the declaration to the judge. The court then applies the statutory priority — your named person at the front, your excluded people permanently out.1State of Texas. Texas Estates Code 1104.202 – Designation of Guardian for Declarant
Updating or Revoking It
You can replace a declaration at any time while you are still competent by executing a new one that supersedes the earlier version. The same signing requirements apply to the replacement. When you sign a new declaration, collect any old copies you can and destroy them, and give the updated version to anyone who held the previous one.
Review the document whenever something significant changes: marriage, divorce, death of your named guardian, a serious shift in your relationship with your designee, or a move to another state. A declaration naming someone who has died or become incapacitated themselves is useless, and the court will fall back on the statutory priority list as if you had never written one.
How a Declaration Fits with Other Planning Documents
A declaration of guardian only takes effect after a court has formally found you incapacitated. Other documents can handle your affairs without a court case at all, and using them alongside a declaration gives you the fullest protection.
- A durable power of attorney lets an agent handle financial matters on your behalf and remains valid after incapacity, without court supervision.
- A medical power of attorney lets a named agent make healthcare decisions once a doctor determines you can no longer make or communicate them.
- A revocable living trust lets a successor trustee manage assets you have transferred into the trust, without any court proceeding, when the triggering conditions you set are met.
None of these replaces a declaration completely. Powers of attorney can be challenged or may not reach every situation, and a trust only governs assets you actually moved into it. If other planning fails or falls short, the declaration ensures a court still knows who you wanted — and did not want — in charge.