Conservatorship Issues

What is conservatorship?
Conservatorship is a legal proceeding in which an individual or agency (to be known as the “conservator”) is appointed by a court to be responsible for a person who needs assistance in activities of daily living (the “conservatee”). A conservator of the person must ensure that the conservatee is properly fed, clothed and housed. A conservator of the estate is responsible for managing the conservatee’s money and other property. One individual may serve as either conservator of the person or conservator of the estate or both. Conservatorship applies to an adult, i.e., a person eighteen (18) years of age or older.

Before the court will grant a petition for the appointment of a personal conservator, it must be shown that the proposed conservatee is unable to provide properly for his or her personal needs for physical health, food, clothing or shelter. A conservator of the estate may be appointed for a person who is substantially unable to manage his or her own financial resources, or to resists fraud or undue influence.

What is limited conservatorship?
Limited conservatorship is a form of general conservatorship and applies only to adults who are “developmentally disabled” as defined in state law, and who are, or could be, clients of California’s regional centers serving developmentally disabled citizens. This protective legal arrangement is “limited” because the adult with developmental disabilities retains the power to care for himself or herself and/or to manage his or her financial resources commensurate with his or her ability to do so, as determined by the court. A limited conservatorship is used to promote and protect the well being of the individual and is designed to encourage the development of maximum self-reliance and independence.

What is conservatorship important?
If you are the parent of an adult child who is developmentally disabled, conservatorship may provide you with the authority to speak on behalf of your son or daughter, or to play a role in his or her care, which you would not otherwise have. When your child reaches the age of majority, he or she becomes emancipated from parental control. The law presumes that the individual, regardless of handicapping condition, is capable of exercising the rights of an adult.

Conservatorship is most important when consent is required for a particular act, and a person with mental retardation or other developmental disability is unable to give it. For example, the “informed consent” of a patient is required for an operation can be performed.

If the patient is an adult with mental retardation or other developmental disability, parental consent frequently is not accepted unless the parents is also the patient’s conservator. Without requesting a conservatorship, a parent may petition a court for authorization to give consent to medical treatment. Additionally, in some situations, the director of a regional center may consent to medical treatment for a regional center client.

What powers are limited (limited conservatorship)?
Like a general conservator, a limited conservator has the care custody and control off theimited conservatee except that, unless specifically requested in the petition and granted in the court’s order, a limited conservator does not have any of the following powers or controls:

• To determine the limited conservatee’s place of residence;
• To have access to the limited conservatee’s confidential records;
• To control the limited conservatee’s right to marry;
• To control the limited conservatee’s right to contract;
• To give consent for the limited conservatee’s medical treatment;
• To control the limited conservatee’s social and sexual contacts and relations;
• To make decisions concerning the limited conservatee’s education.

However, each limited conservator is required to secure for the limited conservatee such habitation or treatment, training, education, medical and psychological services, and social and vocational opportunity as appropriate and as will assist the limited conservatee in the development of maximum self-reliance and independence.

What role does the regional center play in limited conservatorships?
In every conservatorship involving a person who is developmentally disabled (subject to the consent of the proposed limited conservatee) the appropriate regional center must perform an assessment of the proposed conservatee and submit a report to the court. The report must specify the nature and degree of the proposed conservatee’s disability and the areas in which the proposed conservatee may need assistance.

The costs of these assessments will be borned by the regional center. At least five days before the hearing, a copy of the regional center’s report must also be sent to the proposed conservatee and to the petitioner and/or to any attorneys representing the parties.

For the complete booklet contact H.E.A.R.T.S. Connection at 661.328.9055 x282.

Taken from "Conservatorship, Trusts and Wills for People with Developmental or Other Disabilities—A guide for Families." Prepared by the ARC-C. June 2000.