The Difference Between a Guardian & Trustee in Texas

By Heather Frances J.D.

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.

Trustees

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.

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Guardians

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.

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Differences Between a Trustee & a Guardian in New York
 

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Legal Guardianship for an Adult in California

In California, a legal guardianship for an adult is called a conservatorship and can only be established by an order of the probate court. A conservator is appointed for another adult when the probate court concludes that the adult, or conservatee, cannot manage his finances and personal affairs. In 2006, California enacted legislation that extensively revamped how conservatorships are established and administered.

Can a Trustee Be a Guardian?

Although a trustee and a guardian serve very different roles, both are important and involve considerable responsibility. A trustee manages property held in trust for the benefit of another. A guardian is responsible for the care of a person who is legally unable to care for himself and this role may include safeguarding the ward's property not held in trust. It is common for one person to serve as both trustee and guardian, but a potential conflict of interest may require two different individuals be appointed to fulfill these duties.

The Difference in Probate & Family Court Guardianship

Probate court handles issues relating to estate administration and the distribution of assets after death. Under Article V of the Uniform Probate Code, a probate court can also appoint guardians of minors and incapacitated persons. Family courts, which are governed by state and local laws, deal with matters relating to family law. In certain jurisdictions, this court also has authority to appoint guardianships. There are, however, minor differences in probate and family court guardianships.

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