Many people get confused about whether there's a substantial difference between a conservator and a guardian. Frequently, prospective conservators and guardians find themselves unexpectedly involved in complex cases that could have a significant impact on their (and their loved ones') lives.
If you're involved in a conservatorship or guardianship case or may be in the near future, understanding the differences between the two can help you pursue an optimal outcome in your legal dispute.
At Coker, Robb & Cannon, Family Lawyers, our attorneys will work alongside you during your case. We'll build a case strategy tailored to your needs and designed to help you achieve the best results.
Contact our office online or via phone at (940) 293-2313 for help with your case.
Is There a Difference Between Conservators & Guardians?
The definition of conservators and guardians differs state by state, which can make things confusing for individuals involved in guardianship and conservatorship cases.
In Texas, guardianship cases occur in a county court; the probate court. In contrast, conservatorship cases happen in district courts, with the help of a family law judge.
Conservatorship in Texas
In Texas, district courts use the term conservatorship in place of custody. A conservator is usually the parent(s) of a child but can also be a non-parent or state agency if the right findings are made by the Judge. Conservatorship orders usually expire once a child turns 18 and there is no such thing as conservatorship of an adult in Texas.
There are three basic types of conservatorships in Texas:
- Joint managing conservators. In a joint managing conservatorship (JMC), both parents share in the rights and duties regarding decision-making for the child with each party either being awarded the right exclusively, independently or some hybrid of the two such as “by agreement of the parties.” These rights and duties are in addition to the basic rights of a parent which all parents have until and unless limited by a Court. Conservatorship focuses on bigger decisions such as invasive medical, educational, and psychiatric decisions for the child not involving an emergency. In Texas, there is a presumption that both biological parents of a child shall be joint managing conservators. If the Court has made a finding of a history of family violence between the parents of a child, that presumption is removed, and the Judge is prohibited from appointing the parties as Joint Managing Conservators.
- Sole managing conservators. In order for one parent to be appointed a sole managing conservator (SMC) of a child, the Court has to make certain findings. In a sole managing conservatorship, one parent has the exclusive right to make the major decisions for the child, but both parents may have visitation rights for the child. In situations where neither parent is fit to care for a child, the court may also name another individual, such as a non-parent relative, a caregiver who has the legal standing to file a case or a state agency like Child Protective Services as a sole managing conservator.
- Possessory Conservatorship. This term is what people often mistakenly call custody and it refers to the rules regarding the time each parent has with the child. If the Court appoints one parent as the Sole Managing Conservator, then the Court will next determine what possession, if any, the other parent shall be awarded. If a parent is not awarded the decision-making but is awarded possession of the child under the Court’s orders, that parent is then deemed to be the Possessory Conservator. When two people are appointed as Joint Managing Conservators, during their times of exclusive possession of the child, the parent in possession is deemed the Possessory Conservator.
To determine conservatorship in a case where the two parents are not legally married, two parents must engage in a custody case, called a Suit Affecting the Parent-Child Relationship, in a district court, in front of a family law judge. If they agree on how to handle custody, the parents can draft an agreed parenting plan and present an Agreed Order to the Court.
If the parents present an agreed order containing their parenting plan to the judge and the judge deems it to be in the best interest of the child, they'll sign it to finalize the custody arrangement. If the parents go to trial over the case in front of the judge, the judge will consider the evidence in each party's case and then make orders regarding what type of conservatorship and possession each party should be awarded that is in the best interest of the child.
What Is a Guardian in Texas?
Unlike conservatorships, guardianships occur when someone is deemed incapacitated through a formal court process. A minor is considered an incapacitated person for legal purposes. The ward, as the incapacitated person is called, can be a minor or an adult. Guardianships can also be ordered in situations where the ward is receiving governmental funds and a guardian must be appointed for the ward to be able to receive those funds. For guardianship to occur there must be an application, a hearing, and then an appointment of that guardian for their ward. Guardianships can be temporary or long-term and are closely monitored by the court.
There are two basic types of guardianship:
- Guardianship of the estate. A guardian of the estate watches over their ward's estate, including their property and financial affairs. Guardians of the estate are common in situations where an individual may be capable of caring for themself on a day-to-day basis but may need help making good long-term decisions financially. This type of guardian is also common in situations where a ward is too young to properly care for their finances.
- Guardian of the person. Guardians of the personal care for their ward's well-being, doing things like getting medication for them, taking them to doctor's appointments, and making sure they care for their physical and mental health on a day-to-day basis.
If you find yourself in a conservatorship or guardianship case, it's easy to find conflicting information on the roles each play in a child's life. Understanding the difference between the two can help you know what to prepare for in your case, so you can pursue the best outcome for the child in your case.
At Coker, Robb & Cannon, Family Lawyers, our attorneys are familiar with custody cases. We’ll work with you to build a comprehensive strategy for your case.