It's a natural instinct for parents to protect and care for their children.
All humans are born helpless, and need adults to look after them for many years. But what happens when a child reaches the age of majority—18 in most cases, but 19 or even 21 in some states— and is not ready to make adult decisions? He or she is nevertheless considered an adult under the law. Parents may find, to their dismay, that they are no longer allowed to handle their child’s money, gain access to their child’s health records, or make important medical decisions. It may be appropriate in these cases to consider a conservatorship.
What Is Conservatorship?
Conservatorship is a legal proceeding in which an individual or agency (to be known as the "conservator") is appointed by a court to be responsible for a person who needs assistance in activities of daily living (the "conservatee"). A conservator of the person must ensure that the conservatee is properly fed, clothed and housed. A conservator of the estate is responsible for managing the conservatee's money and other property. Before the court will grant a petition for the appointment of a personal conservator, it must be shown that the proposed conservatee is unable to provide properly for his or her personal needs for physical health, food, clothing or shelter. A conservator of the estate may be appointed for a person who is substantially unable to manage his or her own financial resources, or to resist fraud or undue influence.
What Is Guardianship?
Since January 1, 1981, guardianship applies only to minors, i.e., persons under the age of eighteen (18) years. The principal purpose of guardianship is to provide protection for a child who has no parent.
Before 1981, guardianship applied to adult disabled persons and was very similar to conservatorship. Any guardianship for a disabled person in effect as of January 1, 1981, automatically became a conservatorship if the subject of the guardianship was over the age of 18 on January 1, 1981. This change in guardianship was part of a sweeping revision of California's guardianship and conservatorship laws. Since general conservatorship and limited conservatorship are the only protective legal arrangements for disabled adults after 1981.
What Is Limited Conservatorship?
Limited conservatorship is a form of general conservatorship and applies only to adults who are "developmentally disabled" as defined in state law, (1) and who are, or could be, clients of California's regional centers serving developmentally disabled citizens. This protective legal arrangement is "limited" because the adult with developmental disabilities retains the power to care for himself or herself and/or to manage his or her financial resources commensurate with his or her ability to do so, as determined by the court. A limited conservatorship is used to promote and protect the well being of the individual and is designed to encourage the development of maximum self-reliance and independence.
Why Is Conservatorship Important?
If you are the parent of an adult child who is developmentally disabled, conservatorship may provide you with the authority to speak on behalf of your son or daughter, or to play a role in his or her care, which you would not otherwise have. As the parent of a minor child, you are the natural guardian and possess generally the same powers and authority as a court-appointed guardian. When your child reaches the age of majority, he or she becomes emancipated from parental control. The law presumes that the individual, regardless of handicapping condition, is capable of exercising the rights of an adult. When a developmental or mental impairment limits an adult's capacity to exercise his or her rights, the person may need someone else to exercise certain rights on his or her behalf.
Conservatorship would enable the parent to act on behalf of the person subject to periodic reviews by the court. Conservatorship is most important when consent is required for a particular act, and a person with mental retardation or other developmental disability is unable to give it. For example, the "informed consent" of a patient is required before an operation can be performed. If the patient is a minor with mental retardation or other developmental disability, physicians and hospitals will generally accept the consent of the parent. If the patient is an adult with mental retardation or other developmental disability, parental consent frequently is not accepted unless the parent is also the patient's conservator.
Without requesting a conservatorship, a parent may petition a court for authorization to give consent to medical treatment. Additionally, in some situations, the director of a regional center may consent to medical treatment for a regional center client. The powers and duties of the conservator will be set forth in the order of appointment and statutory law. A clear understanding of the effect of these powers and duties is important when dealing with public agencies and managers of residential and day programs. For instance, the parent conservator may have to be notified of and approve proposed changes in residence, education or habilitation services.
A Plan for the Future
Many people are unaware that if as little as $2000 is left in a conventional trust or left to a person, that person is disqualified for benefits until the money is exhausted. It is important to plan carefully how your child can benefit from public services while having enough financial reserve in the fund, Special Needs Trust. To solve problems financially and also legally, a team approach is best, with family members, caregivers, teachers, social workers, lawyers, and financial planners all working together to create the best possible future for the child with disabilities. Finding time to plan for the future is hard. Parents can be overwhelmed with caring for their special-needs child on a day-to-day basis. And just thinking about a conservatorship or a special-needs trust may be a difficult step. But the time to start planning is as soon as you identify the need.
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