Guardianship And Conservatorship In Estate Plans

When crafting estate plans, most often the first concern on an individual’s mind is who will care for their dependents, such as children or incapacitated adults, via guardianship and conservatorship. While estate plans do address financial issues, inheritances, and many other facets, these issues rarely compete with the feelings parents have for their children. This is why planning who will take care of these people when you are gone is so important, so that individuals can have peace of mind in life that the ones they love will be well taken care of. 

In Texas, there are two methods of doing this, called guardianship and conservatorship. Each legal appointment applies in different situations and has different powers and responsibilities, so it is important to understand the differences when crafting estate plans. Appointing the right person for guardian or conservator can build support structures to take care of loved ones effectively. An experienced estate planning attorney from the Law Office of Troy M. Moore, PLLC can help explain the differences and benefits in a personalized consultation. Call now at (281) 970-8039 to learn more and make an informed decision for your future. 

What Are Guardianship and Conservatorship?

Guardianship and conservatorship generally apply to the same principle, but they are legally distinct and apply to different types of people. Many people are confused by these positions in Texas because the state employs different definitions for these positions than other states. Guardianship generally does not apply to children, though in many other states it does. Understanding the nuances of each choice will clarify what position is right for each individual dependent. 

Guardianship

Guardianship in Texas is rarely used for children and primarily focused on providing care for incapacitated adults, according to the Texas State Law Library. Incapacity is not the same as disability, as incapacity refers to the inability to provide for oneself physically or financially. Guardianship removes legal authority and decision-making capacity from the incapacitated individual, called a ward, and transfers it to the guardian. This places full responsibility for both daily care decisions and large-scale legal and financial choices on the guardian rather than the ward. For estate plans, guardianship is most effective for elderly family members or those with severe physical or mental disabilities. In most cases, estate plans will transfer an existing guardianship to another individual.

Conservatorship

Conservatorship provides care and protection, both financially and otherwise, in Texas, but specifically for minors. Conservatorship is another term for child custody in Texas, and carries with it all of the same implications and expectations. There are three types of conservatorship according to the Texas Legal Services Center, which are joint managing conservatorship, sole managing conservatorship, and possessory conservatorship. Parents are typically considered joint managing conservators, while possessory and sole conservatorships are usually only established in abnormal home or legal circumstances. 

When crafting estate plans, a skilled estate planning attorney from the Law Office of Troy M. Moore can help decide which form of conservatorship is right for you. 

When Are Guardianship and Conservatorship Necessary?

Guardianship is generally only necessary for incapacitated adults. This is most often used for senior relatives who can no longer take adequate care of themselves, often due to diseases such as dementia and alzheimer’s. Guardianship in estate plans can be an effective way to provide trusted care for loved ones and have peace of mind in the process, knowing that a family member or trusted friend will be able to provide for their care. 

Conservatorship is used exclusively for minor children. Incorporating conservatorship into estate plans is important when there are young children who may not receive care should their parent pass away. In most estate plans, parents will nominate the other spouse as conservator, along with secondary and tertiary conservators if the primary is unable to provide care. Having multiple backup options for a conservator is often recommended, so that the courts appoint the desired individual to take care of minor children after a caretaker’s passing. 

How to Incorporate Guardianship or Conservatorship into Estate Plans

Estate plans are often the most convenient and commonly used method of establishing guardianship and conservatorship, except in some cases involving divorce or other conflicts. However, estate plans are generally very effective, as they allow the testator of a will to retain conservatorship or guardianship of the individual until their death. This helps streamline the process and allows for new guardians and conservators to be appointed exactly when they are needed, not before, which can help avoid other legal complications. 

Appoint a Guardian or Conservator

Most states allow parents of a minor child to pass on custody of their child in a will. As this is generally an accepted practice in the courts, establishing conservatorship in Texas estate plans is often straightforward. Having a well-crafted and effective will can allow Texas parents to pass on conservatorship or custody of a child fairly easily. Guardianship of an adult often functions the same way. Although the official authority to appoint someone to guardianship and conservatorship rests with the Texas courts, the courts generally respect the wishes of the individual unless their choices may put the child or incapacitated adult at risk. 

Review Documents with a Lawyer

Once a will is created, it is generally advisable to review these legal documents with an attorney. While wills may be straightforward to create, many potential pitfalls and mistakes could lead to complications in the probate process. An attorney can catch these mistakes before they become a problem, which can help secure the testator’s wishes for my guardianship and conservatorship for children and incapacitated adults. Additionally, a skilled estate planning attorney can evaluate other aspects of the will, including beneficiary designation and other legal issues. 

Receive Court Order

The final step that officially appoints a guardian or conservator occurs during the probate process, when the court is evaluating and executing the will along with the appointed executor. For a guardianship or conservatorship to be official, the appointed individual must receive a court order. As the probate officials review the will, if the appointment of the testator is valid and does not put the ward or child at risk, the court will issue a court order, and the guardianship or conservatorship will be transferred. 

Speak with a Houston, Texas Estate Planning Lawyer Today

Estate plans can be complex, and they can also lead to anxiety and unrest when parents and guardians are unsure of what will happen to their children and wards after they are gone. Building a strong legacy is more than money and gifts; it is about caring for and protecting future generations of loved ones. Establishing guardianship and conservatorship through estate plans is an effective way to have peace of mind now and care for loved ones in the future. Speak with a skilled Texas estate planning lawyer from the Law Office of Troy M. Moore, PLLC at (281) 970-8039 to learn more today.