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Four Frequently Asked Questions About Guardianship vs. Conservatorship in Texas

October 18, 2015 | Category: Resources

For many, the concepts of guardianship and conservatorship can become quickly confused amid terms like “proposed ward,” “guardianship of the estate,” or “mental incapacity.” However, with proper guidance by a knowledgeable Tarrant County guardianship attorney, a family can rest assured their concerns will be adequately addressed, including answers to some of the following most frequently-asked-questions:

FAQ #1: Are the terms interchangeable?

No. Under Texas law, the term “guardianship” refers to a legal relationship in which one person assumes responsibility for another person’s personal affairs – whether financial, health-related, or both. By contrast, the term “conservatorship” actually falls within the family law realm, and refers to the legal arrangement referenced in other states as “child custody.” For example, co-parents who are no longer married would be referred to as co-managing conservators – which is a term similar to the concept of joint legal custody.

FAQ #2: Does a child need a guardian and conservator?

Not usually. For a minor, conservatorship by one or both parents is sufficient to ensure the child is adequately cared for and will have his or her needs met. It is only in the event a child’s parents are unavailable due to death, abandonment, termination of parental rights, or a similar situation that the court must appoint a guardian of the child’s person or property.

FAQ #3: What are the capacity thresholds for guardianship of a child or adult?

If a child needs a guardian due to the factors described in FAQ #2 above, the child’s status as a minor under age 18 will be sufficient for a finding of incapacity. For an adult, the Appointment for Petition of Guardianship must be accompanied by adequate documentation from a medical doctor, psychologist or psychiatrist – dated within the past four months – to support the assertion that the proposed ward is indeed suffering from a physical and/or mental disability severe enough to interfere with daily life.

FAQ #4: Can I transfer a conservatorship to a guardianship for a special needs child?

Yes. Under Texas law, the Tarrant County probate court has implemented a process in which parents of a special needs child can transfer a conservatorship into a guardianship of both the person and property, provided the child’s needs and disabilities are well-documented. Moreover, the probate court will require proof that the former conservator is qualified and eligible to serve as the child’s adult guardian. Finally, in the event family members disagree with the appointment of the child’s conservator as adult guardian, they may opt to object and contest the matter at the guardianship hearing.

Contact a Reputable and Experienced Tarrant County Family Law & Probate Attorney Today

If you are considering establishing either conservatorship rights over a child, or petitioning the probate court for guardianship over an incapacitated adult or minor, be sure to contact the experienced and compassionate attorney and staff of the Law Office of L. Taylor McPherson. To set up a consultation, call 817-502-1144 today.