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Typically, when people in the United States turn 18, they assume all legal responsibility for their own well-being, and are allowed to assume control of all of their affairs.

However, sometimes adults are unable to assure their own well-being due to physical or intellectual disability. This can happen when a person is in a serious accident, suffers a medical crisis, becomes older, starts to suffer from Alzheimer’s or dementia, or has had a lifelong disability.

Conservatorships are usually put into place in one of three circumstances: an adult who was previously independent becomes impaired, an adult knows that they will become impaired in the future due to age or illness, or a child with special needs who reaches the age of majority.

In all of these situations, a guardian is chosen to handle the physical needs and/or financial affairs of the person in question. This guardian is referred to as a “conservator.”

What is a conservator?

A conservator is someone appointed by a court to assume care for some aspect of another adult’s life.

There are two basic types of conservators:

  • Conservators of the estate: These control and take care of a person’s financial matters. These are necessary when it is shown that someone cannot adequately manage their finances. This may be due to advancing age, with evidence that the older person is beginning to consistently make imprudent financial choices, or when someone comes of age but does not have the physical or mental ability to control their finances. In this scenario, the conservatee loses the legal ability to make contracts, assume debt, or give assets as gifts. Usually, the conservator retains some rights, including the right to make basic transactions to provide for necessities, and the ability to make a will. However, this can vary due to the level of disability.
  • Conservators of the Person: These are appointed in especially serious situations, namely when it can be shown that a person is unable provide for their own well-being, in the form of food, shelter, physical health and hygiene, or clothing. Conservators of the person assume the legal right to choose where the conservator will live, arrange for necessary care, and become responsible for providing adequate food, clothing, and personal care. Some rights that the conservator may or may not retain control over include the ability to choose medical treatment, make a will, marry, or vote.
  • A person may act as both a conservator of the estate and conservator of the person. Someone who initially acts as conservator of a person may later petition the court to be appointed as the conservator of the affected person’s estate as well.

How to appoint a conservator for a special needs child.

Many parents are faced with the difficult task of raising children with medical conditions such as Down’s, autism, cerebral palsy, spina bifida, and other serious afflictions caused by disease, disorder, or injury. These same parents are sometimes caught by surprise when they learn that they will no longer have control over their child’s medical care and overall well-being when their child turns 18.

While not all children with disabilities need a conservator or guardian to navigate the complexities of adulthood, many do.

Most often, it is the parents of such children who seek to appoint a conservator for a disabled child. We have worked with many parents who either wish to continue to act as guardians for their children beyond the age of 18, or who are making plans to maintain care for a disabled child in the case that both parents pass away.

For parents to successfully become appointed as conservators for their adult children, it must be demonstrated to a court that the child does not have the competency or ability to protect their own legal rights. Secondly, it must be shown that no less restrictive legal alternative—such as a special needs trust, assistive services, power of attorney, or voluntary family guidance—will sufficiently protect the wellbeing of the proposed conservatee.

This is a very complex and involved legal process, but it is one that we have a great deal of experience in handling.

If you’re facing the special circumstance of wishing to act as a conservator for your child, please contact us. There is no financial obligation for taking the time to have an initial meeting with us, and we can help you avoid costly mistakes that many people make inadvertently.

What does a conservator do?

Assuming the role of a conservator should not be taken lightly. Conservators assume responsibility for many of the everyday, time-consuming affairs that adults normally manage on their own. Conservators of the estate become responsible for tasks including:

  • Performing the necessary investigations to locate and assume control of all of the conservatee’s assets.
  • Collecting income and managing the conservatee’s finances.
  • Developing budget plans.
  • Paying all of the conservatee’s bills.
  • Protect and/or responsibly invest the conservatee’s financial assets
  • Be accountable to the court for all actions and decisions made on the behalf of the conservatee.

Conservators of the person assume an even greater degree of responsibility. When acting as a conservator of the person, the conservator assumes responsibility for:

  • Making sure that the conservatee has a safe and secure place to live.
  • Providing or arranging for the provision of food and medical care.
  • Providing clothing and other daily necessities.
  • Providing necessary transportation and recreation.
  • Assuring the overall wellbeing of the conservatee.

How is a conservator chosen?

The legal process for establishing a conservatorship begins when a person files a petition with a court to appoint a conservator. The people who may do so include:

  • The person who requires a conservatorship
  • The spouse of the potential conservatee
  • A relative of the conservatee, such as a parent or child
  • A local or state government
  • A friend of the potential conservatee, or another concerned person

Under California law, if a conservatee nominates a conservator, a judge must appoint that person as conservator, unless it can be demonstrated that the proposed appointment would be contrary to the best interests of the conservatee.

In a situation where the judge finds that the proposed conservator is unsuitable, or no conservator is nominated at all, the judge will nominate the conservator deemed to be most able to care for the conservatee. When multiple people are found to be equally qualified, the judge must choose a conservator in the following order of preference:

  • A spouse or domestic partner of the conservatee (unless the conservatee nominates someone else equally qualified)
  • An adult child, or that child’s nominee
  • A parent, or the parent’s nominee
  • A sibling, or the sibling’s nominee
  • Any able person or legal entity

What is the legal process for establishing a conservatorship?

  1. After an interested person has completed a petition for conservatorship, the petition is filed with a court clerk, who will schedule a court date.
  2. If the petitioner nominates another person at conservator, the proposed conservator must be notified in person, and provided with a copy of the petition.
  3. The close relatives of a potential conservatee must be notified, and provided with a copy of the petition.
  4. The court will appoint an investigator to interview the proposed conservatee, as well as close family members and other persons familiar with the situation.
  5. On the court date, the conservatee will be asked to attend the hearing, unless they are physically or mentally unable to do so. In court, the judge will assess whether all the necessary notifications have been sent out, and determine if the conservatee needs a lawyer to protect their interests. Once all of the available information has been assessed, the judge can choose to approve or deny the petition for conservatorship. If approved, an official order will be filed that appoints the conservator.