Popstar Britney Spears recently fought and won the right to be released from a 13-year-long conservatorship in California led by her father. Her father’s control over her assets, estate, and livelihood garnered a lot of media attention and questions about what is a conservatorship. Given the media attention, we thought this might be a good time to discuss conservatorship and guardianship.
In Texas, conservatorship and guardianships are not interchangeable terms and are not the same thing.
In Texas, the commonly known term “custody” is referred to legally as conservatorship. Conservatorships in Texas are for children. A conservator can be a parent, as well as a non-parent, such as a sibling or other relative, or a state agency. A family court will decide who the conservator will be meaning who will be in charge of the child. In Texas, the conservatorship expires when a child turns 18. Clearly in Texas, therefore, conservatorships are not used for adults.
A conservator is appointed by a judge, who assigns the care and responsibilities of the child to an individual. There are three types of conservators:
• Joint Managing Conservator, or the more familiar “joint custody,” in which both parents share the rights, duties, and responsibilities of the child’s care and wellbeing. If there is a history of violence in the family, the judge will remove the conservator’s rights from that parent.
• Sole Managing Conservator, commonly called “sole custody,” in which one parent has the primary responsibility of care and responsibility for the child. This can be either the father or the mother, depending on the court’s decision. If the judge makes this decision, the sole managing conservator is the only parent who makes decisions about the child’s education, medical treatments, and other important choices.
• Possessory Conservator refers to the parent who is “in possession” of the child at a given point, such as during their visitation period. The primary parent with whom the child lives full time is the possessory conservator until it is time for the child or children to spend time with the other parent. This is usually the case if one parent is named the sole managing conservator, and the other parent only has some rights to visitation.
Frequently, conservatorship decisions are made in the context of divorce proceedings. Unmarried parents must file a petition to bring a custody case in front of a family law judge to decide on conservatorship meaning custody.
If both parents are ill-equipped to care for their child, the court may name the conservatorship to someone else, such as a grandparent, sibling, or other responsible adult.
“Conservatorship” is also the term used for a parenting plan. A parenting plan must be reviewed by the court and incorporated into divorce proceedings or ruled on their own for unmarried parents.
While conservatorship comes under the Texas family law, guardianship comes under Texas probate law. The Texas Probate Code Section 602 states that a guardian is appointed to “promote and protect the wellbeing of the person.” A person becomes a “ward” of the state when they are:
• Incapacitated and unable to care for themselves
• An individual who needs a guardian to receive certain governmental funding
• A minor child
Typically, guardianship only covers minor children under certain circumstances, such as deceased parents or termination of parental rights for both parties. However, a disabled child may be under conservatorship until age 18, when they then become under guardianship.
Adults who have become incapacitated through loss of mental acuity can be taken under guardianship. This is not necessarily someone who has a disability and is otherwise functional. The person who cannot adequately care for themselves, pay bills, and make important decisions usually need this type of assistance. Often times children may seek guardianship over their elderly parent.
There are two types of guardians, one for the person’s well-being, and one for the person’s estate (for financial affairs.) Both can be appointed to ensure that the person is protected. They are often the same person and should be trusted to make decisions in their ward’s best interest both physically and financially. The guardian should never break the law including stealing or abusing their ward.
A person placed under guardianship essentially loses their rights and their autonomy. Before seeking guardianship, it is best for loved ones to try less restrictive alternatives to help such as powers of attorney, joint bank accounts, and advanced directives.
Tarrant County’s Family Law Attorney
Wendy L. Hart is an experienced attorney helping people throughout Tarrant County who are dealing with family law issues like custody. Wendy understands the challenges involved in finding workable parenting plans and custody arrangements and will protect your interests and those of your children.