In the state of Texas, the terms guardianship and conservatorship are not interchangeable: Conservatorships are related to children and their parents. Guardianships are caregivers for adults who have become incapacitated, and children whose parents are deceased.
Conservatorship Part of Parenting Plan
Since 2005, all divorce decrees involving children must include a parenting plan. In a Texas parenting plan, one parent will be the “primary joint managing conservator” and the other parent will be the “possessory conservator.” In some states, these terms are defined as custodial and noncustodial parents. Even though one parent has the “primary” designation, both parents are equal as it applies to legal decision-making rights and visitation. Both parents are joint managing conservators of the child or children. Conservatorship decisions are governed by the family court system.
Probate Court Governs Guardianship
Chapter 13 of the Texas Probate Code governs guardianship. A guardian is the person with legal responsibility to make decisions for either a minor (when both their parents deceased) or an incapacitated adult. There are various reasons an adult may become incapacitated. A younger adult may have been the victim of an accident or congenital issue, while an elder adult may be suffering from cognitive impairment. Whatever the reason, if an adult is unable to provide for their own basic self-care needs, the court appoints a guardian to take care of them. The guardian will oversee medical care and financial activities. The guardian may provide care for the person or may coordinate the management of the person’s care.
To become a legal guardian, the candidate must apply and attend a hearing to receive the appointment. The guardian is often a family member, but not in all cases.
Plan Your Estate Now
Conservatorship and guardianship are considerations for all estate planning. If you have young children, you should decide who would be their guardian if something happens to you and their other parent. You can arrange for guardianship through your estate plan, as well. You can decide who you would like to be your guardian if you should become either temporarily or permanently incapacitated.
These are not easy topics to consider and the decisions may be difficult. There are legal nuances to conservatorship and guardianship planning that you need to be aware of when setting up your estate plan. It’s important to have the guidance of a seasoned estate planning attorney so you and your family are protected.