Difference Between Conservatorship & Guardianship in Texas

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In Texas, adults can become conservators or guardians. They have similar legal responsibilities, but courts appoint conservators during custody and divorce cases. Parents can also mutually agree upon parenting plans or conservatorship arrangements, but courts must ultimately approve them and incorporate them into final divorce decrees. However, the Texas Department of Aging and Disability Services appoints guardians to make decisions on an incapacitated adult's behalf. Thus, in Texas, conservators have legal custody over children, but guardians have legal authority to make decisions for incapacitated adults.

Conservatorship Overview

The Texas Legislature passed new divorce laws in 2005. Since 2005, Texas courts have required divorcing parents to incorporate "Parenting Plans" into their final divorce decree. Their plans must designate one parent as the "primary joint managing conservator" and the other as the "possessory conservator." A primary joint conservator is known as the custodial parent in other jurisdictions, while a possessory conservator is known as the noncustodial parent. Texas law presumes joint custody to be in the best interests of children, and although one parent will have primary custody or primary joint managing conservatorship, both parents have equal visitation and legal decision-making rights for any minor children.

Read More: What Is the Difference Between Guardianship & Conservatorship?

Conservatorship Considerations

Since Texas law presumes that the best interests of a child is to have both of his parents participate equally in his upbringing, courts will appoint both parents as joint managing conservators. However, courts can deny parents visitation and custody rights if they have a history of mental or physical abuse, substance abuse, a refusal to participate in a child's upbringing or other such evidence.

Guardianship Overview

Guardians have legal authority to make decisions on behalf of their wards, who are incapacitated adults. According to Chapter 13 of the Texas Probate Code, guardians have the legal rights to manage an incapacitated adult's estate and financial activities, make medical choices and find appropriate care. Texas law defines an incapacitated adult as one who is unable to provide basic self-care and necessities. Texas courts appoint guardians, and if judges cannot locate suitable guardians, they can appoint Texas agencies to become legal guardians.

Guardianship Considerations

To become a legal guardian or to receive an appointment to become a legal guardian, Texas law requires an applicant to apply for legal guardianship, attend a hearing and receive an appointment award. Texas courts give preference to family members who apply for legal guardianship, although they may not receive an appointment. There are other alternatives to legal guardianship, and some incapacitated adults can receive help with their financial affairs, making informed health care decisions and finding other social service programs, depending on their individual family circumstances and the degree of their mental or physical incapacitation.