The difference between conservators and guardians is somewhat subtle in all states, but the state of Texas wins the prize for most confusing. The best rule to remember about the distinction in Texas is that conservator means divorce, while guardianship means probate. Almost all conservatorships involve minor children and at least one parent. Guardianships are largely for the benefit of incapacitated adults.
Conservatorship of Minor Children
In most states, determining whether one parent or both will have primary responsibility for the children is called custody. In Texas, however, it is called conservatorship. The parent who gets conservatorship in Texas would have been said to get child custody in other states. Generally one of the parents, or both, are granted conservatorship of minor children. But on rare occasions, a Texas court might appoint someone who is not a parent to be the child's conservator if neither parent is willing or capable of taking on the role.
There are three possible conservator designations in Texas divorces. They are:
- Sole Managing Conservator: One parent has the sole right to make decisions for the child.
Joint Managing Conservatorship: Two parents share the responsibilities of the conservatorship.
Possessory Conservatorship: Parent has visitation rights, but no authority to make health care, financial and life decisions for the child.
Conservatorship Arrangements in Texas
What is termed a parenting plan in other state's divorce courts is termed a conservatorship arrangement in Texas. As is the case with parenting plans, conservatorship arrangements in Texas must ultimately be reviewed and approved by the divorce court to have them incorporated into final divorce decrees.
Since 2005, Texas has mandated that a divorce court include conservatorship arrangements into a final divorce decree. Generally, the plans designate one parent as the primary joint managing conservator, and the other parent as the possessory conservator. The arrangements may also outline when the children will spend time with each parent.
Guardianship of Incapacitated Adults
To turn from a discussion of Texas conservatorship to Texas guardianship, one must move from divorce court to probate court. While conservatorship is covered by the Texas Family Code, guardianship is described in the Texas Estates Code. A guardianship comes into existence through a formal appointment process that is usually initiated in Texas probate court. However, in small Texas counties that do not have a probate court, it is handled in the County Court or County Court at Law.
A guardianship in Texas is a relationship created by the court that appoints a guardian to be responsible for decision-making for the ward, an individual legally unable to make their own decisions due to incapacity. Essentially, the court takes away legal rights from the ward and gives those rights to the guardian. In most cases, wards of guardianships are incapacitated adults. An adult is considered incapacitated under Texas law when the person, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for themselves, care for their own physical health or manage their own financial affairs.
Under Chapter 13 of the Texas Probate Code, guardians have the legal authority to manage an incapacitated adult's estate and financial activities, make their medical decisions for them, and arrange appropriate care. Texas law defines an incapacitated adult as one who is unable to provide basic self-care and necessities. If there are no suitable guardians for an incapacitated person, the court can appoint a Texas social welfare agency to become the legal guardian.
Four Types of Texas Guardianship
All guardians are fiduciaries and must act in the best interests of the ward. There are four different types of guardianships in Texas. A guardian may be:
- of the person
- of the estate
- of the person and estate
- a temporary guardian
Each type of guardian has different duties and a different scope of authority.
Guardian of the Person
A guardian of the person is authorized to make personal decisions for the ward, including where they live; what medical treatment they receive and where they will get it; whether they will go into a nursing home; whether and where they can travel; and whether they can marry or divorce. A full guardian of the person exercises these rights in a similar way to the authority a parent exercises over a child. A limited guardian of the person has less authority to act for the ward than a full guardian of the person. In a limited guardianship, the court imposes limits on the guardian and grants certain rights to the ward.
Guardian of the Estate
A guardian of the estate handles the financial affairs of the ward, rather than their personal affairs. These guardians operate with court supervision since the potential for abuse is high. Generally, a guardian of the estate has the authority to sign contracts on behalf of the ward; handle the ward's bills and assets; file lawsuits; apply for government benefits; and buy or sell property. Some of these financial decisions may require court approval. Guardianship of the estate can be full or limited; if limited, the court allows the ward to make some decisions on their own.
A person can be appointed both guardian of the person and of the estate. In this case, the guardian has the combined authority of a guardian of the person and a guardian of the estate. The authority can be limited by the court.
A temporary guardian stands in while the court decides on, and sets up, a permanent guardianship. Sometimes this can take several months. In Texas, a temporary guardianship can last up to 60 days.
Appointing a Guardian
Who do Texas courts pick as guardians? If family members apply for legal guardianship, the court usually gives them preference. Even so, they may not get the nod if the court finds them to be unqualified or to have a conflict of interest.
Under Texas laws, certain people cannot be guardians. The list includes anyone under the age of 18; anyone who is incapacitated; a person who owes money to the ward; a person who is involved in a property or contract dispute with the ward; and sexual offenders and certain other criminals. Texas courts have a lot of discretion regarding guardianship applications.
Alternatives to Guardianships
A guardianship is an extreme measure that requires a lot of effort on the part of the guardian. It also severely restricts the autonomy of the ward. While in some cases, courts will revisit the issues and dissolve the guardianship, most guardianships in Texas are permanent.
For those reasons, Texas courts consider all alternatives before granting a guardianship petition. Less restrictive alternatives include:
- Supported decision-making agreement with family or friends.
- Durable power of attorney.
- Medical power of attorney that applies for medical decisions.
- An advance directive, also known as a living will.
- Joint bank accounts with a family member.
- A special needs trust.
- Texas State Law Library: Guardian
- Texas Divorce Lawyer: What Is the Difference Between Child Custody vs. Guardianship?
- Romano & Sumner: The Difference Between Conservatorship and Guardianship
- Krupa Downs Law: Conservatorship vs Guardianship: Understanding the Differences
- Texas Public Laws: Estates Code 1002.017
- Roman & Sumner: Four Different Types of Adult Guardianship in Texas
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.