A disclaimer: We are not lawyers and are not herein providing legal advise.
Introduction
California law provides for a limited (as opposed to general) conservatorship, on a case by case basis, for adults with significant developmental disabilities. The law recognizes past abuses of power (e.g., forced sterilization), and seeks to provide substitute decision-making support only in areas where there is a clear need. A limited conservatorship is a court-approved, legal relationship between a competent adult and an adult with a developmental disability, which gives the conservator a defined degree of authority and duty to act on behalf of the conservatee in making decisions affecting the conservateešs life.
Purpose
The purpose of limited conservatorship is to protect adults with developmental disabilities from harm or exploitation while allowing for the development of maximum self-reliance. There may be no present need for a conservatorship. Nevertheless, looking ahead to a time when a conservatorship may be needed, parents may want to nominate one or more persons who might be willing and able to serve in that capacity, and to identify them in their wills.
What powers may a limited conservator have?
When the child reaches age 18, he or she is presumed at law to have the capacity to do all the things that any adult in this society may do, regardless of disability. If granted by the court, the limited conservator can have decision-making authority (and the limited conservatee can be denied power) in as many as seven (7) areas:
Short of a special court order, the limited conservator may not, however, provide substitute consent in the areas of (a) experimental drug treatment; (b) electroshock therapy; (c) placement in a locked facility; or (c) sterilization. An LPS (Lanterman-Petris-Short) conservatorship is necessary for admission to a mental health treatment facility. An In re: Hop hearing is required for admission to a state developmental center.
In other words, unless the court hands a power over to a conservator, the authority to make decisions remains with the conservatee. It's important not to overestimate the power given to the conservator. A parent tells the story of a residential service provider who asked the parent (because he was the conservator) if it would be all right for his adult son to buy and wear boxer shorts rather than standard briefs. The father noted that this was not a power handed to him by the courts, and went on to suggest ways of determining whether his son might like to try a different style of underwear.
Some underlying issues and perspectives
Some parents speak of conservatorship in terms of an understandable 'sense of ownership' ("my daughter"), fears and concerns about the future ("I want him to be safe"), and their own peace of mind ("I know that the good sisters will take care of him"). An approach that will resonate much better with most regional centers is to emphasize information, good advice, and counseling so as to help the person participate in decision-making process to the maximum extent possible.
With client rights advocates, issues most often arise over (1) fixing the person's residence; (2) decisions concerning education and training; and (3) control of social and sexual relations. To illustrate, a parent may want an adult child to attend a workshop when others feel that he/she should have a job working in the community. Or, parents may feel that their child should live in a group home, but the individual may want to live in his own apartment. Regarding social-sexual relationships, many people feel that this should almost always be up to the individual rather than be constrained by a conservator. Underlying issues for families may be: (1) being left out of the loop (information, participation), or (2) knowing that agency representatives sometimes make decisions (or sway decisions) based on their own values, time or budget constraints.
Duties and qualifications
The limited conservator is charged with the duty of securing for the conservatee such habilitation, treatment, training, education, medical and psychological services, and social and vocational opportunities as are appropriate and will assist the limited conservatee in the development of maximum self-reliance and independence.
The limited conservator should have (1) personal knowledge of the conservatee; (2) knowledge of what constitutes the 'best interests' of the conservatee; (3) a commitment to providing that which is in the person's 'best interests'; (4) financial management skills (as appropriate); (5) a knowledge of programs and services, their availability and effect; (6) knowledge of appropriate methods of protection; (7) proximity to the conservatee; and (8) availability in terms of time and energy.
Alternatives to limited conservatorship
In any particular instance, there may (or may not) be a suitable alternative to a limited conservatorship. With respect to financial matters, serving as representative payee (for receipt of Social Security benefits) is often available, but may not be sufficient if the person has continuing and serious trouble avoiding financial exploitation. A trust is another device that may be available. Power of attorney - general, special or limited, whether durable or not - may be possible and could be effective. However, if a person lacks capacity (e.g., to give informed consent for medical treatment), a durable power of attorney would not work, because it presumes competence when signed. One parent has a durable power of attorney, given to her by her adult son, for both health care and finances, and she feels that the regional center is more inclined to involve her in key decisions because, as she explains it, nearly every decision has implications either for health care or finances. Voluntary acceptance of informal or formal assistance is another option. To illustrate, if access to confidential records is important, the disabled adult may sign a statement authorizing his mother or father (or someone else) to examine such records for him. If a regional center adult client is judged incapable of giving informed consent to medical treatment, and there is no conservator (or he/she cannot be located in a reasonable time), the executive director of the regional center may sign a consent to treatment on behalf of the individual.
Seeking a Conservatorship
The process starts with filing a Petition for Appointment of Probate Conservator in Superior Court, typically where the proposed conservatee lives. Also submitted to the Court is Confidential Supplemental Information (Probate Conservatorship), which describes the person's abilities to provide for personal needs; to manage financial resources (resisting fraud or undue influence); actual and proposed living arrangement; and consideration given to alternatives to conservatorship. Regarding the latter, one needs to indicate why each is unsuitable or unavailable.
If the proposed conservatee cannot attend the court hearing, a Declaration of Medical or Accredited Practitioner needs to be submitted. The petitioner (or attorney) also submits a Referral for Investigatoršs Report Per Probate Code Section 1461.1 and 1754; an Order Appointing Court Investigator; a Citation for Conservatorship and Proof of Service; and a Notice of Hearing Guardianship or Conservatorship. As appropriate, other forms may include notification of the regional center for persons with developmental disabilities and appointment of a Public Defender to represent the proposed conservatee.
The Court Investigator will interview the proposed conservatee, explain the conservatorship, and inform the person of his/her rights - namely, to oppose the proceeding; to attend the hearing; to have the matter tried by jury; to be represented by counsel; and to have counsel appointed by the court, if unable to retain an attorney.
The regional center has 30 days to file a report, responding to the petition and taking a position on the need and desirability of a conservatorship.
Maintaining a Conservatorship
If granted a limited conservatorship, the conservator must submit a plan to the Court within 90 days. Depending on the powers granted, the plan, which is typically a short document, simply indicates what actions will be taken. It might say that the conservatee will continue living in a particular place, attend a workshop or other employment training program, and so forth.
In most cases, the Court Investigator will reinterview the conservatee after one year, and every two years thereafter, and report to the court whether a conservatorship continues to be needed.
Additional sources:
Developmental Disabilities Area Board III, Advocacy, Trusts and Limited Conservatorship: A Guide to Future Planning for Individuals with Developmental Disabilities (1986), and ARC of the United States, How to Provide for Their Future: Suggestions for Parents Concerned with Providing Lifetime Support for a Child with a Developmental Disability (1989).