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Do I Need Guardianship or Conservatorship?

Different states use the terms “guardianship” and “conservatorship” differently.  It is important to know what they mean in Texas and which is appropriate for your family.

Conservatorship is the term for the rights and duties of a parent towards a child.  It includes the right to get information from schools and doctors, to make decisions for the child, that sort of thing.  It is often conflated with possession and access to get the popular terms “custody”.   (It is important to note that “custody” has no legal meaning in Texas when talking about parent-child relationships.)  Parents have the rights and duties of a conservator simply because they are parents.  When there is a divorce or a court order about the child, that order will specify who has which rights and duties.

Guardianship is the term for taking over responsibility for the care of an adult.  This happens when someone becomes incapacitated because of age or illness and needs someone else to manage things.  It also is an issue when a severely disabled child turns 18 and is no longer a child but cannot make adult decisions.  Guardianship can be “of the person”, “of the estate”, or both.  A guardian of the person has the authority to receive social security or Medicaid payments.  If there are other assets, then a guardian of the estate is needed to manage those assets.  The guardian of the estate can be the same person or a different person from the guardian of the person.  A lawyer is required for guardianship proceedings, and must be certified as having specific training in guardianships and alternatives.

Sometimes when a child is inheriting something or is the beneficiary of insurance, the parent will be asked who is guardian.  A parent is the natural guardian of his or her child, assuming no court order has changed that fact.  So the parent would sign forms as the parent/guardian of the child.  The confusion usually is rooted in the insurance company using the language of a different state’s laws.

If the parents of a child are separated (whether or not they ever married), or if the child will live with a relative, orders for conservatorship are needed.  Often this is required to add the child to a health insurance policy, to enroll the child in school, or to consent to medical treatment.  It is easy to let this slide while all the adults are getting along but it is important to have it when disagreements pop up.

The need for guardianship of an adult can be reduced or avoided by planning.  If the person has appropriate Powers of Attorney, that may prevent the necessity of a guardian.  And that sort of planning costs far less than a guardianship.  It will often be done in conjunction with a will, another document that reduces costs for family members.

 

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