The differences between conservatorship and guardianship (and thus Conservators and Guardians) vary from state to state and Texas is probably the most unique — and confusing — of all of them. We will go over the basic differences between the two legal concepts and dispel some of the false understandings they often promote.
Conservatorship and Family Law
Other states may refer to it as “custody”, but in Texas we use the term conservatorship. In addition to custody the conservator is responsible for medical decisions and the child’s residency.
A conservator is appointed by a family-law judge, usually in a district court, to assign the responsibilities and care of a child to an adult. This is most often used in divorce proceedings to give the parents one of three designations:
- Joint Managing Conservators: Both parents share the responsibility of conservatorship
- Sole Managing Conservator: A single parent has the sole right to make decisions for the child
- Sole Possessory Conservator: Only named in conjunction with a Sole Managing Conservator, but not required. Sole Possessory Conservator can’t make health, financial, and life decisions for the child, but retains visitation rights and can inherit assets from the child.
A conservator doesn’t handle any financial responsibilities for the child. Those responsibilities are only given to the guardian of the child’s estate.
It is possible to encounter a conservatorship proceeding not involving a divorce. This happens in cases where the parents are grossly irresponsible and ill-equipped to care for a child. We see this a lot when a parent is addicted to illegal substances. In those cases the conservatorship could be granted to a family member like a grandparent or aunt.
Guardianship and Probate Law
Unlike conservatorship which is governed by the Texas Family Code and whose proceedings take place in the district court, guardianship takes place in county court and is governed by the Texas Estates Code.
Additionally, guardianship is not limited to children. Incapacitated adults who have lost their mental acuity can be assigned a guardian. Guardianship for children usually takes place when the parents are dead, but can happen when they’re alive as well. The process of appointing a guardian can be long and complicated. There are two different types of guardians and they can be two separate people, but typically it’s the same person:
- Guardian of the Person: Responsible for the ward’s (a “ward” is the person on whose behalf a guardian is appointed) physical well-being and can make decisions about residency.
- Guardian of the Estate: Responsible for the ward’s financial affairs.
Conservatorship vs. Guardianship
Typically a conservatorship is more appropriate when kids are involved and when at least one parent of the child is still alive. Guardianship comes into play when both parents are deceased, in the case of a child, or when the subject of the proceeding is an incapacitated adult.
For example, consider a child with special needs under divorced parents: a conservatorship proceeding would determine who has custody of the child. However, when the child turns 18 — now they’re an incapacitated adult — typically one of the parents would be appointed guardian.
Consult an Experienced Guardianship Attorney
We recommend that you consult an experienced guardianship attorney if you have questions regarding guardianship. At Romano & Sumner, we have a great deal of experience with the guardianship process. If you have any questions, or would like to make an appointment to talk with us, please don’t hesitate to contact us today.