Guardians are sometimes named to take care of children, since the law assumes they cannot take care of themselves until they turn 18. However, guardians and trustees may be used in other situations, for example, when an adult needs help caring for himself or his finances. In Texas, trustees only take care of managing a person's assets while guardians take care of a person’s day-to-day needs and may also be given authority to manage his money.
Under Texas law, a trustee is the person or company who manages property that is held in a trust. A trustee has the duty to act in good faith on behalf of the trust and must also act in accordance with the purposes of the trust. Normally, a trustee has authority to make investments, hire advisers and make distributions from the trust account.
Appointment of a Trustee
Trustees are appointed when the trust is established, either by the person who creates the trust or by the court if the trust is court-created. Texas courts may establish trusts and appoint trustees under certain circumstances, such as when a minor or incapacitated person receives money from a court judgment. Sometimes trusts are established in a will to transfer property to a trustee, also named in the will, to manage property for the benefit of the trust’s beneficiaries. For example, a parent might establish a trust for a minor child; the trustee will then manage the trust’s assets for the child's benefit until she reaches an established age. Unlike guardianships, establishing a trust does not require the beneficiary of the trust to be a minor or incapacitated. Since trustees’ actions are governed primarily by the privately-created documents that establish the trust, trustees are not heavily supervised by the court.
A guardian is a person appointed by a Texas court to care for an incapacitated person or a minor child, either physically or financially. An incapacitated person — also called a ward — is an adult who cannot care for himself because of a physical or mental condition. Guardians can manage the ward’s estate, person or both. For example, a guardian over the ward’s person would manage the ward’s day-to-day decisions, medical care and living arrangements; a guardian over the ward’s estate would manage the ward’s bank accounts and investments. Like Texas trustees, guardians over the ward's estate manage the ward's money for him. Unlike Texas trustees, all guardians over the ward’s estate are supervised by the court, required to post a bond and file certain inventories and appraisals with the court.
Appointment of a Guardian
Often, guardians over a ward’s person are named in a will. For example, if the parents of a minor child die, their wills may name guardians to care for the child. However, a Texas court has the final authority to appoint the named guardians or different guardians. If you are seeking guardianship in a situation where a case has not already begun, you may need to file a guardianship petition in the county’s probate court, as when you are seeking guardianship over a disabled adult. Unlike a trust, a guardianship is based on court-given authority rather than a privately-created trust document.