What is a Limited Conservatorship?
In my previous blog on “When Do You Need a Conservatorship” I addressed the different types of conservatorships for adults in California and promised to provide an overview of the limited conservatorship. This blog will discuss the purpose of the limited conservatorship, how it works, and the process to create one. If you have a special needs child who will not be able to function independently when he or she turns 18 and becomes an adult, a limited conservatorship may be necessary to ensure your child continues to have the support system he or she needs. The limited conservatorship can provide continued access to information from medical and educational providers and the authority for you to make important life decisions for your disabled adult child such as where he or she lives and whether he or she can marry.
The Special Purpose of the Limited Conservatorship
One of the first questions I get asked about this type of conservatorship is why is it called “limited”? The law requires that a limited conservatorship only be used when necessary to promote and protect the well being of developmentally disabled adults. The limited conservatorship is tailored to the individual’s specific developmental and adaptive limitations and must encourage self-reliance and independence to the maximum extent possible. To accomplish these objectives, the developmentally disabled adult will retain all legal and civil rights except for those limited powers specifically granted to the conservator by the Court based on the nature of the disability. The specific powers that must be requested and granted by the Court in order to shift decision-making over these rights are discussed below.
What is a Developmental Disability?
The law that applies to limited conservatorships uses a special definition of “developmental disability” that does not include individuals who only have physical handicaps. The disability must originate before the child turns 18 and be a permanent and substantial handicap. Some of the specific disabilities that fall under this definition include: intellectual disability, cerebral palsy, epilepsy, and autism. It also encompasses other handicapping conditions closely related to intellectual disability. A substantial handicap is a significant functional limitation in three or more of the following areas: self-care, language, learning, mobility, self-direction, capacity for independent living, or economic self-sufficiency.
If your adult child is a client of the Regional Center, he or she will most likely have a developmental disability that falls within the scope of the limited conservatorship. In fact, in order to establish a limited conservatorship, the Regional Center must complete an assessment and submit its findings and recommendations to the Court.
What Powers Must Be Requested in a Limited Conservatorship?
When a limited conservatorship is granted, the limited conservator automatically has inherent powers for the care, custody, and control of the limited conservatee and will be responsible for making arrangements for health care, personal care, transportation, recreation, and other basic necessities. There also is a requirement to secure appropriate services to develop the limited conservatee’s self-reliance and independence. However, the limited conservator will not have any of the following powers or controls over the limited conservatee unless specifically requested and granted by the Court:
Right to determine the limited conservatee’s residence
Access to confidential records and papers
Right to give or withhold consent to marriage
Control of the right to contract
Right to give or withhold medical consent
Right to control the limited conservatee’s social and sexual contacts
Authority to made educational decisions
In general, a limited conservatorship must be requested if some of the powers will be retained by the limited conservatee, which is typically the case with a high functioning individual. If the nature of the disability is so severe that all of the powers will be granted to the limited conservator, either a limited or general conservatorship can be requested. If uncertain how to proceed, an attorney should be consulted for advice regarding the specific factual circumstances. [Disclaimer ]
How Do I Establish a Limited Conservatorship?
A limited conservatorship is started by filing a petition for appointment as a limited conservator and paying the required court fees unless the proposed conservatee is eligible for a fee waiver. There are supporting documents that are filed with the petition including a capacity declaration that must be completed by a doctor who evaluates the proposed limited conservatee. There also are notice requirements that must be met to inform close relatives about the proceeding and give them an opportunity to be heard and raise any objections. The proposed limited conservatee will receive his or her own court appointed attorney who submits a report to the Court after meeting with his or her client.
Some individuals will be comfortable with the self-help approach and be able to file a petition on their own but others will prefer to be assisted by an attorney. There is information about the different forms that must be filed available on court web sites and through participation in the Conservatorship Clinic run by the Legal Aid Society of San Diego. You also can seek representation by an attorney to help prepare and file the petition for appointment and represent you at the court hearing. Because there are more complex procedures involved, consulting an attorney is highly recommended whenever someone needs a conservatorship of the estate. For timing purposes, you do not have to wait until the developmentally disabled adult has turned 18 before filing. The Court can make the appointment effective once the limited conservatee turns 18 to provide a seamless transition to adulthood.
If your family has a special needs child that will benefit from a limited conservatorship, our Probate attorneys can advise you about a limited conservatorship and the best option for your situation. To schedule an initial consultation with an attorney at our firm, please contact us.