If you’re in charge of care for a developmentally disabled person, there are many legal guidelines you must follow and potentially extra steps you must take to provide the right care. As the parent of a minor, this is a simple process as adults are legally allowed to make decisions for their children.
What happens when your developmentally disabled family member goes from being a child to an adult? To make decisions for an adult, you need special legal rights. That’s where a limited conservatorship comes in.
What is a Limited Conservatorship?
In its most basic form, a limited conservatorship is a court arrangement where a named adult becomes the conservator for a developmentally disabled adult. A limited conservatorship gives the caregiver or conservator the legal right to make certain decisions for another adult.
A developmentally disabled adult may not be able to make decisions for themselves about their healthcare, finances, or living situation which is why a conservator is appointed and granted the appropriate powers through the court conservatorship proceeding.
If you’re considering a limited conservatorship for a loved one, it’s important to understand the different kinds of limited conservatorship and the process for being appointed as conservator.
Two Types of Limited Conservatorship
When choosing the right type of limited conservatorship for your family, you can seek the help of an attorney who is experienced with setting up and applying for a limited conservatorship.
The two different types of limited conservatorship are differentiated by the powers granted to the conservator. The conservator can be granted the right to make decisions about the conservatee’s person and/or estate.
A conservatorship over a developmentally disabled adult is considered “limited” because it grants the conservator power to make decisions in a limited fashion. The conservator is granted power only over areas of the conservatee’s life where the court determines they can’t make their own decisions. A limited conservatorship is intended to give the developmentally disabled person as much independence as possible.
Limited Conservatorship of the Person
A limited conservatorship of the person gives the conservator power to make decisions about the conservatee’s daily life. This might include:
- The right to fix the residence or dwelling of the limited conservatee
- The right to access confidential records of the limited conservatee
- To consent or withhold consent to marriage
- The right to contract
- The power to give or withhold medical consent
- The power to control the limited conservatee’s social and sexual contacts
- The power to make decisions regarding education
The conservator might be granted the power to control and make decisions about some of these aspects, but not all. The limited conservatorship intends to grant the conservatee as much independence as possible.
A limited conservatorship of the person doesn’t grant the conservator the right to manage the conservatee’s money.
Limited Conservatorship of the Estate
In contrast to the limited conservatorship of the person, a limited conservatorship of the estate allows the conservator to handle the conservatee’s financial matters. The powers granted to a conservator with a limited conservatorship of the estate might include:
- Paying a conservatee’s bills
- Collecting income on behalf of the conservatee
- Managing a conservatee’s estate, inheritance, or lawsuit settlement payout
A limited conservatorship of the estate is less common than a limited conservatorship of the person as many developmentally disabled adults receive public assistance and the limited conservatorship is therefore not necessary. A family member can manage the limited conservatee’s SSI (Supplemental Security Income) by serving as Representative Payee, which requires appropriate forms to be completed and filed with the Social Security Administration so no conservatorship of the estate is required if SSI is the conservatee’s only source of income.
A limited conservatorship of the estate is also not necessary if the developmentally disabled person is employed and earns a wage. A conservatorship will not be granted if it is not the least restrictive means of protecting and assisting the individual. If your child allows you to help them manage their estate and no one is trying to take advantage of them, the court would likely deny a request for conservatorship of the estate of the individual.
Do I Need a Limited Conservatorship or a Conservatorship?
While you’re looking into a limited conservatorship, it’s important to know the difference between a limited conservatorship and a conservatorship.
A limited conservatorship is specifically reserved for instances where an adult is seeking the power to make decisions for another adult who is developmentally disabled. The individual must be a client of the Regional Center and Regional Center must file a report recommending for or against each power requested by the Conservator.
In comparison, a conservatorship is a broader legal term. A conservatorship is a court process and agreement for any adult who isn’t developmentally disabled but needs another adult to decide their care.
A conservatorship can be put into place for an adult who is physically disabled, has dementia, or cannot make decisions for themselves for another reason such as an accident. Sometimes a conservatorship is appropriate for a developmentally disabled individual who needs greater support than the seven limited conservatorship powers.
While you’re going through this process, you may also learn the term guardianship. In California, a guardianship is specifically for minor children. If the person you’re looking to care for is an adult, then a conservatorship is right for you.
Duties of a Conservator Within a Limited Conservatorship
A conservator is granted specific power to manage certain aspects of a conservatee’s life or finances when they are granted a limited conservatorship.
Health Care and Confidential Records
A limited conservatorship can grant the conservator the power to make medical decisions and sign paperwork for the conservatee. The power to make health care decisions for a conservatee would fall under a limited conservatorship of the person.
Another section of powers that might be granted to the conservator are those that have to do with the conservatee’s living situation, social interactions, and marriage. These powers also fall under a limited conservatorship of the person.
A conservator can be granted the right to decide who a conservatee spends time with, whether they can be married, and where they can live. This includes the right to file a restraining order against someone that is a threat to the conservatee. Without a conservatorship, you cannot on behalf of the disabled adult, obtain a restraining order against someone.
A limited conservator can also be granted the right to sign contracts on behalf of the conservatee. This also protects the conservatee as their right to enter into contracts is removed and granted to the conservator.
The limited conservatorship may also include the authority to make decisions regarding the conservatee’s education. This includes participating in and signing off on the conservatee’s IEP.
A conservator can also be granted the right to manage a conservatee’s finances. This falls under the limited conservatorship of the estate. When a conservator is granted access to a conservatee’s finances, the decisions they make will be closely supervised by the court. The court will require the conservator to file annual accountings to make sure their assets are being properly managed.
Though the court grants a conservator certain powers in a hearing for a limited conservatorship, the conservator will also continue to monitor the situation to make sure those powers aren’t be overstepped or abused and the conservatee is receiving the proper care under the agreement. A court investigator will periodically, for the duration of the conservatorship, go out and check on the conservatee and file a report with the court. If there are issues, the court will set a hearing date and call the conservator back in to court to address the issue.
A limited conservatorship can require a lot of time and effort for the conservator. Because of this, in some cases, the conservator can petition the court to receive payment for their time if the conservatee has sufficient assets. The conservator will not be paid for their time out of the conservatee’s SSI.
If you need to set up a limited conservatorship for your loved one, you’ll need the help of a special needs attorney or an attorney who is well versed in the intricacies of establishing a limited conservatorship. When you’re ready, you can set up an appointment and get a free consultation with Kam Law Firm to learn more.