There are many reasons individuals decide to call an estate planning attorney – maybe they want to investigate the estate tax laws, or maybe they experienced the death of a loved one and now want to be sure their assets are secured in the way they wish. However, despite the value we place on our assets, many parents come to the estate planning attorney first for something different – the care of their minor children.

In addition to typical estate planning documents such as the Will and Financial Power of Attorney, parents of minor children have the right to identify who would care for their children in the event the parents are no longer able to do so. For purposes of the Texas Estates Code, a “minor” is defined as someone under the age of 18 who “has never been married and has not had the disabilities of minority removed for general purposes.” With a document usually entitled Declaration of Guardian for Children in Case of Future Need, parents are able to determine who would be the guardian of their children’s person and who would be the guardian of their children’s estates. These guardian designations do not have to be the same individuals (although they often are). Also important in this document is the opportunity to specify who can never be the guardian of the children. This allows the parent to tell the court that his or her parent who has a different belief system or the estranged sister should not be the guardian of his or her children.

As an illustration, if this Declaration document is not in place and both parents of the child have passed away, the law states that “the nearest ascendant in the direct line of the minor is entitled to guardianship of both the person and the estate of the minor.” For some families, whoever the first ascendant is maybe the preferred guardian anyway, but in many cases that is not the preference. Also common is that the first ascendant brings up competing guardians. The maternal and paternal grandparents could now be left duking it out in a courtroom to decide who “gets the kids.” The Declaration of Guardian document puts all this to rest and gives the parents a voice, even after they are no longer here.

Another important document for minors that comes up in estate planning is the Medical Power of Attorney for Minors. This document allows the parent to designate another to make medical decisions for the minor children. This is useful for many families but is very useful for those children with specific medical conditions or medications that may need attention while the parents are out of town or otherwise unreachable. This document often has a time limitation on its effectiveness so many parents will prepare these documents in advance of leaving town and designate whoever is watching their children as the agent, making it effective only while they are unavailable.

Of the many reasons to make sure our “affairs are in order,” our children often come to the top of the list. These are two available tools to be sure your minor children are protected.

ABOUT THE AUTHOR: Emily B. Taylor is a Senior Associate at Rapp & Krock, PC in the Probate, Estates, Elder Law, and Trusts group.

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