By Santa Barbara Special Needs Attorney Julianna Malis
When a child with special needs turns 18, he or she becomes an adult in the eyes of the law. However, if the child's disability prevents him or her from making adult decisions and being able to manage his or her affairs, the parents will need to petition the local court to become the now-adult child's conservator.
A conservatorship is much like a guardianship. In California, the term guardianship refers to the care of a minor and the term conservatorship refers to the care of an incapacitated or incompetent adult. Generally speaking, the purpose of a guardianship or conservatorship is to establish the legal authority for an individual to take over the care and support of another.
A conservatorship is a court proceeding to appoint someone who is qualified to manage the financial affairs and/or the personal care of an individual. However, with a conservatorship, the person needing care is an adult who is either physically or mentally unable to handle his or her own affairs. A conservator can be a family member, friend or professional person.
Here is some important information you need to know if you decide to become your child's conservator here in Santa Barbara.
Deciding if a Conservatorship is Necessary
Establishing a conservatorship of your adult child is a long process that can cost a lot of money. While becoming your child's conservator will give you the legal authority you need to manage your now-adult child's affairs into adulthood and beyond, there are some drawbacks that parents should be made aware of such as:
- Your child will lose some degree of legal independence.
- Your child will have no authority to make decisions about his or her personal life, property, or finances.
- You take on a larger burden of having to make those decisions for your adult child.
A Limited Probate Conservatorship is appropriate when the conservatee (the person needing assistance) is developmentally disabled. With this type of conservatorship, the authority of the conservator is limited in order for the disabled person to live as independently as possible.
A General Probate Conservatorship, on the other hand, is for all other adults who, due to physical injury, advanced age, dementia, or other conditions, are unable to care for themselves. A General Probate Conservatorship can also be appropriate for someone who may be more susceptible to undue influence.
Alternatives to Conservatorship
Having a mental illness or intellectual disability does not automatically indicate that your child must have a conservator. If your adult child is high-functioning or has the capability of making his or her own decisions, then you may be able to forego filing for a conservatorship by instead putting the following legal safeguards in place to help your child when necessary:
- Financial Power of Attorney
- Healthcare Directive
- HIPAA Authorization
- Special Needs Trust
Before you can legally conserve your adult child with disabilities, a court must first determine that your child is not capable of taking care of him or herself. To make this decision, a judge will likely ask for medical evidence from a treating physician that attests to the level of functioning, decision-making ability, prognosis, and diagnosis. Depending on the individual situation, other information may be requested as well. The standards are different for each state, so it is crucial that you talk to a special needs attorney in California about exactly what is required.
The Powers and Duties of a Conservator
The powers and duties of a conservator will ultimately be decided by a judge who is in charge of the case and will normally be based on the physical and mental needs of the adult child in question. Most states require that conservators file reports on their actions on a regular basis to ensure the disabled person's needs are truly being met and to determine if any modifications need to be made.
If you need assistance obtaining a conservatorship for your adult child with special needs, we can help you. Simply contact our Santa Barbara law firm at (805) 965-1550 to set up a consultation.