First, do you need one? Well, it depends.
Under California law, when your child turns 18, all of a sudden, they’re an adult. Now, you can’t legally attend doctor’s appointments or IEP meetings. So what if you have a child who has trouble communicating or does not make very good decisions?
They need help according to their capabilities.
In these instances, you have several options. One of them is petitioning the court for a limited conservatorship in California.
What Is a Limited Conservatorship?
Conservatorships give the conservator powers over a conservatee. You only petition California courts for this power when the individual isn’t capable of retaining those powers.
However, just because someone struggles to make some decisions, doesn’t mean they need help with all.
Ideally, the conservator should only manage powers that the developmentally-disabled adult can not—and no more. So limited conservatorships limit the powers that the conservator manages.
The conservatee is also known as a “conservatory”.
What Is a Limited Conservatorships Usefulness?
Limited conservatorships aren’t always the answer. It depends on your child’s ability, culpability, vulnerability.
For example, could a friend or stranger convince them to sign up for a credit card? Then they charge $30,000 for a luxury cruise they will never take. If so, they may not have the capacity to make certain decisions.
In this example, limited conservatorships protect your child’s assets. You would also manage their SSI and other payments.
Second, you should consider how much they cooperate with you when it comes to helping them manage their adult lives as an adult with disabilities. If they’re delighted to have your help and always agreeable, you probably don’t need a limited conservatorship.
I’ll be the first to tell you. What is a limited conservatorship if your child is always agreeable? Just a document you don’t really need.
Your child does, however, need to have a durable power of attorney and an advanced directive as every other capable adult should.
I also recommend setting up an Able Account if your child is capable of managing finances and a Special Needs Trust to protect your adult child after you’re gone.
Types of California Conservatorships
There are three types of conservatorships.
- Regular Conservatorship – This most often applies as you get older. If you have dementia, your kids take over managing things for you.
- Limited Conservatorships – This one is for your adult kids, whether they’re 18 or 60, who have developmental disabilities.
- LPS Conservatorship – This is the hardest type to get. It’s reserved for somebody who has grave mental health challenges. As a parent, you cannot petition to initiate this one. Instead, you need to work with the Public Guardian. They’re constrained. And that’s tragic because we do need these types of conservatorships.
What Are the 7 Powers of Conservatorship?
In the two counties where I practice, Mateo County and Santa Clara County, they’ll grant five out of the seven powers. So what are the 7 powers of conservatorship?
- Decide where your child lives
- Access the records
- Enter into contracts
- Consent or withhold consent to marriage
- Give medical consent
- Enter into social and sexual relationships
- Make education decisions
They don’t grant the power to consent or withhold consent to marriage or power over social and sexual relationships. It isn’t easy to get those two powers even if your child needs them. But they frequently grant the other five powers.
Steps to Get a Limited Conservatorship
Now that we’ve answered: what is a limited conservatorship, what is the limited conservatorship process? Here we go!
There’s a lot of paperwork to fill out and some steps to follow. If I’m working with you, I start by asking you a lot of questions to make sure limited conservatorships are our best route to protect your child.
Why does your child need to be conserved? What are the issues?
Keep in mind, people will speak with your child during this process. Some developmentally-disabled adults are relieved that you’ll continue to take on these responsibilities for them. Others want autonomy and don’t believe they need to be conserved. So this isn’t always a slam dunk. If your child really needs this, we’ll need to work together to make the case.
We’ll start with an application for conservatorship in California and follow these steps to obtain and California conservatorship.
So what’s the earliest (latest) you can obtain a conservator?
The earliest is on the child’s 18th birthday. And many times, we start six months before that.
So “Happy birthday. Here’s your court hearing!”
But it doesn’t have to be at age 18. Every child is different. I suggest most parents try without a conservatorship. See if anything comes up where you need one because you can always apply later.
With that said, these typically take about four to six months because the court system is rarely fast. So if you already know before 18, I say you know your child best. Let’s get started!
The legal system must take time to vet the potential conservator. In short, the conservator can’t owe money to the proposed conservatee or be a felon.
Generally, a conservator must be a “good upstanding member of society”.
3. Capacity Declaration
A doctor needs to fill out what’s called a capacity declaration. Ideally, this the child’s regular doctor they’ve been working with for a while signs this. Naturally, getting a sign-off from some doctor who barely knows your child would hold less weight.
4. Set a Court Hearing Date
After you’ve filed the paperwork, the court will set a court hearing date.
5. Interviews and Investigations
The court will then send an investigator to interview you and your child. After this, they prepare a report for your hearing.
The court will additionally appoint an attorney to represent your child. They will also interview your child. Their goal is to understand what they want/need. Because what is a limited conservatorship if it doesn’t protect the child?
After, they write a report to submit to the court.
Note, all of this is public record except for a few of the more confidential items.
6. The Recommendation
The court investigator provides a recommendation, and then the regional center prepares a report.
What’s a regional center? These are nonprofit organizations that the state of California has contracted with to provide services to developmentally disabled individuals.
Your child must be part of the regional center to get a limited conservatorship. They will they can serve your child based on the developmental disability.
The Golden Gate Regional Center is the main one for San Mateo and San Francisco counties. In Santa Clara and Santa Cruz County, you’ll work with San Andreas Regional Center.
7. The Court Compiles the Information
The court takes all of this information, your petition, and the different reports. They then make the decision. They’ll let you know beforehand if it’s not being if it’s not going to be accepted.
Typically, if you have a strong case, you’ll receive a two-page document called “Letters of conservatorship”. You’ll give this form to your doctor, your child’s school, and anyone else who needs to know you’re making the decisions.
How Long Does Conservatorship Last?
It ends automatically when the conservatee dies. If the conservator passes or becomes unable to continue in that role, then someone else will need to step up to take over.
If you’d like to explore limited conservatorships or other ways to protect your special needs adult child’s assets and welfare, then contact us to schedule a free initial call.