Many people do not know the difference between a conservatorship and a guardianship. That is understandable, because in certain states, both words can mean different things, and in other states, the words are used interchangeably. Both deal with legally incapacitated persons. In Texas, a Conservatorship and a Guardianship mean two very different things.
Conservatorship
In Texas, conservatorship is a family law concept. The word “conservator” means the person who is given custody of a child. Conservatorships usually arise out of divorces, parentage, suit affecting the parent-child relationship cases, and domestic abuse cases. These cases are handled in district court, unlike a probate court where guardianship matters handled.
The different types of conservatorships include joint managing conservatorship, sole managing conservatorship and possessory conservatorship. In a joint managing conservatorship, both parents share legal decision-making authority of most decisions affecting the child’s life. Sole managing conservatorships arise when the court grants only one parent the exclusive right to make important decisions concerning the child. In a possessory conservatorship, the other parent has been granted sole managing conservatorship, and the parent with possessory conservatorship only can have certain visitations with the child. If a non-parent is granted sole managing conservatorship over a child, both parents may be grant possessory conservatorship.
Who can be a conservator?
Conservators can be parents of the child, another relative of the child, or competent adults. The person must be appointed by the court. The court determines which parent or non-parent is given conservatorship of the child based on the best interest of the child.
Guardianship
Guardianships, like conservatorships, are needed to protect someone who cannot protect themselves. However, age and disability determine if someone needs guardianship, rather than family issues. Guardianship is a legal tool that allows a person to make legal and personal decisions on another person’s behalf. Unlike a conservatorship, an adult can be granted guardianship over another adult.
Duties of a guardian include managing the ward’s estate and providing for the ward’s needs, care and supervision. Guardianship of the Estate is when the guardian is responsible for managing the property and financial affairs of the ward. Guardianship of the Person is when the guardian is responsible for the care of the ward. Temporary and Emergency Guardianships are awarded when the court is deciding if the guardianship should be granted. In Texas, a temporary guardianship only lasts for 60 days.
Who can be a guardian?
Texas applies a top-down approach when deciding guardians. The court give preference to parents and relatives over non-relatives. For minors, the parents may designate someone as a guardian for their child. For adults, priority goes to whoever the ward themselves designated when they had capacity or the ward’s spouse. The guardian must apply with the court. Whoever is designated must be fit to serve as guardian and swear an oath; the guardian may even be required to pay a bond to ensure that they will perform their duties according to law. The court then assigns an investigator and medical examiner, and attorney ad litem is appointed by the court to represent the ward. A hearing is held for the court to establish three main things: the proposed ward is an incapacitated person, it is in the best interest of the proposed ward to appoint a guardian, and the rights of the proposed ward or the proposed ward’s property will be protected by the appointment of a guardian.