Conservatorships and Developmental Disabilities

Since the Britney Spears conservatorship drama, many critics have called for an end to conservatorships in California, including disability rights organizations.  For some of us, though, conservatorships are necessary and helpful.  People with severely limiting disabilities have been overlooked and left out of the debate.  We are often criticized for seeking conservatorships and pressured into making choices that do not protect our loved ones or respect the needs of our families.

Is a conservatorship the best choice?

Sometimes.  This blog post is intended to provide basic information about conservatorship issues from a parent’s perspective.  We are the best judges of our families’ needs, resources and abilities. 

I am committed to the ideals of self-determination.  Conservatorships take away the rights of an individual to make decisions about their own lives, and reinforce dependence instead of independence.  There are many conservative alternatives, including Supported Decision-Making which may be better for your situation.  It’s important to study those options, but when people with intellectual or developmental disabilities are unable to make their own decisions, conservatorships are still appropriate.

The key to planning for your child’s future is to carefully and realistically evaluate the abilities of the individual, and design a plan that is personalized, and individually tailored for the individual.  That plan can include a conservatorship.

What is a conservatorship?

In California, the law allows a judge to appoint someone to make decisions about the personal or financial affairs of an adult who is “incapacitated”.  Incapacity is described as being “without understanding”, of “unsound mind” or “suffers from mental deficits so substantial that they lack the legal capacity” to take care of themselves.

This is not the same as a guardianship.  Although the process is similar, a guardian is appointed for a minor when the parents are unwilling or unable to act in the best interests of the child.  A conservatorship applies to adults.

The person who is appointed to make decisions is called the conservator.  The person who is the subject of the conservatorship is called the  conservatee. 

When a conservatorship has been approved by the court, the conservator has the legal right and obligation to make decisions for the conservatee.  This can include the right to make medical decisions, enter contracts and choose where the conservatee lives.  A conservator may also sign documents for the conservatee, order medical supplies, or pay bills on the conservatee’s behalf. 

A conservatorship can, and should, be designed for the individual needs of the conservatee.   How to choose the kind of conservatorship you need is outlined below.

Why a conservatorship?

When children turn 18, they are adults in the eyes of the law.  Unless a court says otherwise, an adult is assumed to be competent to make their own decisions and they are liable for the consequences of those choices. 

Parents no longer have the legal right to act on behalf of a young adult unless some form of official action has been taken to give them that right.

This means that parents no longer have educational rights and cannot make school decisions after a student turns 18.  Health insurance companies and doctor’s offices are prohibited from giving out information and sometimes won’t even let a parent make an appointment without the consent of the young adult. 

For some of our children, making adult decisions simply isn’t possible.  Many people with intellectual and/or developmental disabilities may require 24-hour protective supervision, they do not speak, write, use AAC or ASL and cannot make and communicate decisions to the outside world.  Living without a parent or caregiver to act on their behalf simply isn’t possible.  When  someone does not hear, speak, or have receptive or expressive language, they can’t “come to the phone” to give consent for a parent to act on their behalf.

A conservatorship includes automatic oversight by the court which Supported Decision Making does not.  If oversight is needed to protect the individual, a conservatorship may be the best fit.

What if I do nothing?

For some, the idea of taking away the rights of a loved one is distasteful.  It is not a decision to be taken lightly, but the consequences of doing nothing can be serious.  If you don’t make the decisions, someone else will.

Califiornia law allows the director of your regional center to make medical, dental and surgical decisions in some cases if you don’t.  The law also allows “someone other than the person” to make medical decisions when there is no conservator.

Other laws allow for the appointment of the Director of the Department of Developmental Services to be appointed conservator of a developmentally disabled person.

For one family, the parents decided not to seek any formal arrangement for decision-making for their 18-year-old daughter.  Shortly thereafter, a 40-year-old man began a sexual relationship with her.  Although the family felt the relationship was abusive, the police refused to investigate because adults are presumed to be able to give consent unless there is a conservatorship or other plan in place to protect the adult.

Another byproduct of failing to make arrangements to assist your adult child is that they can get married and sign contracts without your knowledge or consent.  The consequences of these actions can be difficult to undo.  If your young adult can be easily manipulated or taken advantage of, a plan is needed.

Types of Conservatorships

When you have considered the options and decided that a conservatorship is the best decision, you will need to consider which type of conservatorship you want.  California has a complex system of conservatorships with several basic types. 

General Conservatorship of the Person.  The conservatee is found incompetent to make all personal decisions and the full power and obligation to make those decisions is granted to the conservator.

General Conservatorship of the Estate.  The conservatee is found incompetent to make financial decisions and the full power and obligation to make those decisions is granted to the conservator.

It is possible to have only one type of general conservatorship, or both types at once.  One person may be the conservator for both types, or one person may be appointed conservator of the person while another conservator handles the financial affairs.

Limited Conservatorship.  Limited conservatorships were designed to allow people with developmental disabilities to keep the power to act on their own behalf in some areas, while allowing a conservator to handle other decisions.  For example, a limited conservatorship may preserve the conservatee’s right to choose where to live, but give the power to make financial decisions to a conservator.

LPS (Mental Health) Conservatorship.  This is a short-term form of conservatorship which allows involuntary psychiatric treatment of a “gravely ill” person for up to one year.

Limited Conservatorships (Limited Conservatorship) have been heavily favored by many groups because they maintain as many of the conservatee’s rights as possible.  This is an important goal, but too many families have suffered consequences that were not disclosed to them by organizations which insist that every DD/ID person must use this type of conservatorship.

A General Conservatorship (GC) may be right for your family if your child or young adult cannot make any type of decision. 

People with developmental disabilities are NOT required to be conserved under Limited Conservatorships

Unfortunately, many parents are told that the only conservatorship option for a young adult with a developmental disability is a Limited Conservatorship.  This isn’t true.  Many prominent groups that are supposed to be providing information to all people with disabilities have taken the political position that they will not even provide information to help families who may need a General Conservatorship, including Disability Rights California.  Limited Conservatorships are available and may be the least restrictive choice in some cases, but they do not make sense when the  adult is completely unable to make decisions.

Limited Conservatorships DO NOT survive the death of the conservator.

For a parent, it is important for us to know that we have made the best plans for our dependent adult children at the time of our death.

A limited conservatorship ends when a conservator dies, even when there is more than one conservator.  So, if a parent has been appointed as a conservator, the conservatorship will dissolve on the parent’s death.  A new petition for conservatorship must be filed and a new conservator will have to be investigated and appointed.

The process takes time and money and means that your adult child may be unprotected upon your death until the new conservatorship is established.

Will the family be in a position to complete all the necessary documents and pay another attorney’s fee when that happens?

When there is a death in the family, no one should be worrying about going through the conservatorship process again while dealing with everything else that needs to be done.

If there is long gap in establishing the new conservatorship, who will make medical or other important decisions for the conservatee?

“All 7 powers” under a limited conservatorship is NOT the same as a general conservatorship.

When a petition for a limited conservatorship is filed, the court can grant one or more of 7 different powers to the conservator to act on behalf of the conservatee.  (See the link above.)

I have heard from too many parents that they were told by an attorney or regional center that getting “all 7 powers” means that the conservatee is fully protected and is the same as a general conservatorship.

In real life, limited conservatorships do not cover all possible personal or financial decisions for the conservatee A general conservator is given full authority to make all personal and/or financial decisions for the conservatee.

With an LC, a severely disabled person and the family may not be protected to the extent they think.  Real life is not limited to 7 categories of decision-making, leaving “pockets” of uncertainty or inability to act.  If your loved one needs protection and supervision on a 24-hour basis, a General Conservatorship is not only available, it is probably the better choice.

The best type

The best type of conservatorship is the one that works for you: an individualized plan that suits the person.  It’s important to know that you  have options and that you can ask the court to fashion an order that gives the conservator and the conservatee the most flexible powers and choices.

When do I start?

You can start the process when your child is 16 or 17.  You will need to gather documents like IEPs and IPPs and have your physician complete the right paperwork.  Ideally, a conservatorship will be in place and ready to take effect the day your young adult turns 18.   A court can hold the hearing and sign the proper documents which will not be in force until the conservatee’s 18^th birthday.

Study the rights and responsibilities in the Conservatorship Handbook.

The handbook is 318 pages, but you don’t need to read it through all at once.  It is divided up into sections with a good table of contents.  Just read the first few chapters and then skip to the chapters that apply to you.  It’s much easier to  use the digital handbook since you can search by keywords to find the answers to your questions.

You do not have to hire someone to be a conservator.

Watch out for private conservators.  There are private businesses in California which provide “conservatorship services”.  You do not need to pay anyone to be a conservator.  If you cannot handle all of the responsibilities yourself, ask a friend or family member to be a co-conservator to help you.

Once you allow a private conservator into the conservatorship, it can be very difficult and expensive to dislodge them.  You will have to go back to court and convince the judge that the private conservator is not needed and that you can handle the job yourself.

Protect the conservatee’s Special Needs Trust or Supplemental Needs Trust.  If the conservatee has substantial assets in a trust, a private conservator can charge high fees and take the money from the trust.  If you try to remove them, they can fight you and use the conservatee’s money to do it.  Make sure that you protect any trusts by including a clause that the trust money cannot be used to pay a private conservator.

If you need help with financial affairs, you can hire someone to handle the paperwork, but make sure they are licensed and bonded.  You can also use the services of a large bank which will provide some protection from loss.

Don’t pay court fees to file conservatorship papers.

When you file the conservatorship papers with the court, be sure to request a Fee Waiver.  In California, the cost for filing court papers is $435, but is nearly always waived when the proposed conservatee is receiving public benefits like Medi-Cal or SSI.  Ask the court for fee waiver form FW-001, or download it from the California Forms website.

A Public Conservator may be available

Every county in California has an Office of the Public Guardian or Conservator.  They can provide conservatorship services when someone does not have family or friends willing or able to take on the responsibilities of a conservator.  They can also be contacted if you suspect that a conservator is taking advantage of, or abusing, a conservatee.

Do I have to hire an attorney to request a conservatorship?

No.  Regrettably, there are some attorneys who charge too much to file your papers, and who are not well informed about your choices.  California Courts Self-Help Centers can give you information on resources to help you find a knowledgeable attorney or file conservatorship papers on your own.

Always carry a copy (not the original) of your papers with you.

ALWAYS carry a copy (not the original) of your Letters of Conservatorship.  You never know when someone is going to challenge your right to act on behalf of a conserved adult.  Keep a copy in a purse or bag, and another in your car.

Final Thoughts

Conserving an adult is a big step.  It takes away their rights, but it also affords protection and help for people who may not be able to make decisions for themselves.  Don’t rely on any one person to tell you what your choices are (including me).  Review the resources that are linked here and then follow your instincts.