The state of California has long been a leader in developing and passing legislation that safeguards individuals’ privacy, autonomy, and civil rights. It has been at the forefront of legislating individual protections for more than 50 years in response to changes in business practices, in technology, and in our culture at large. So it should come as no surprise that California is also more likely to amend its laws in response to shifts and changes. Conservatorship laws are no exception. Recent changes reflect an increased interest in balancing a conservatee’s autonomy with a conservator’s control.
Attorney, Jubilee Menzies, Managing Associate at Laughlin Legal Divorce & Family Law Group in Silicon Valley, is keeping pace to offer her clients the most current and most relevant legal advice regarding trusts and estates planning and limited conservatorships. Below, Ms. Menzies offers her perspective on a handful of the most common questions asked by her clients.
Q As a San Mateo limited conservatorship attorney, what exactly is a limited conservatorship in California? Is that different from a limited conservatorship for an adult child?
JUBILEE MENZIES Well for starters, in California the term “conservatorship” only applies to adults. California uses the term “guardianship” for minors. With respect to a limited conservatorship, that’s a type of conservatorship that’s designed to protect persons who are developmentally disabled under the law, for instance individuals with high support needs autism, cerebral palsy, or intellectual disabilities.
There are two types of limited conservatorships, and they may be sought concurrently. A limited conservatorship of the person which relates to making decisions about a person’s health, healthcare decisions, housing decisions, and social needs to some degree; and a limited conservatorship of the estate which relates to managing the finances of a person with disabilities. Note that a conservatorship of the estate is often not needed because the conservatee does not have their own finances. A representative payee or rep payee – someone appointed by the Social Security Administration to receive and manage the conservatee’s government funds – is often sufficient to manage.
So when we talk about someone obtaining a limited conservatorship, it most often comes in the context of parents, or grandparents, who have a child with a significant developmental disability, who want to get a limited conservatorship of the person in place to go into effect on their child or grandchild’s 18th birthday so there’s never a gap in decision-making or care.
Q If a parent in California needs a conservatorship lawyer for a special needs child, should they look for a limited conservatorship attorney in California?
JUBILEE MENZIES Limited conservatorships are available for adult individuals 18 years of age and older, who are developmentally disabled under the law. They’re typically set up by a trusts and estates attorney who does conservatorships. Let me add that it’s important to have your attorney fully understand what your adult child’s needs are, what type of diagnosis they might have, and what their capacities are so that they can direct you as to which type of conservatorship would be most appropriate for your child.
Q What does a limited conservatorship lawyer in San Mateo do? Who do you help and when?
JUBILEE MENZIES We help individuals who are looking to protect someone aged 18 or older who has special needs but does not have the capacity to make their own decisions. Most often, it’s the parents of the individual with special needs who initiate the conservatorship, though it can be a grandparent, a sibling, a friend of the family, or another concerned party.
We also help families with succession planning for these types of things. Sometimes parents will conserve their child with special needs, but as they age, they may need the child’s sibling or another relative to step up, and we can facilitate getting proper appointments for that succession planning so there’s no gap in care, and that’s what conservatorship is all about – preventing a gap in care.
Q If you need to set up a limited conservatorship for developmental disability, what is the California limited conservatorship process?
JUBILEE MENZIES Obtaining a limited conservatorship in California requires following a detailed probate court process that starts with a petition to the court to request that a specific individual be appointed to care for the person with the developmental disability. You can be both the person requesting (petitioner) and seeking (conservator) that appointment, or you can be requesting that another person be appointed. That happens sometimes in the context of parents requesting that a California licensed professional fiduciary be appointed as conservator, or requesting that another adult child/sibling be appointed the conservator.
We sit down with our conservatorship clients for a detailed conversation right at the beginning. The person who is the proposed conservatee needs to be evaluated by a medical professional, and a capacity determination by a medical professional needs to be made and submitted to the court stating that the person lacks capacity to make their own decisions and care for themself. The probate court will also send a court investigator to evaluate the overall situation, including evaluating the proposed living environment, caretaker, additional individuals in the home where the placement is being considered, and the individuals who are being considered to be the conservator in the home.
Next, there’s a hearing before a judge, oftentimes via Zoom these days. After the hearing, the judge will make a determination and rule on your petition. And then there is a follow-up process where the conservator needs to submit documentation about a general plan of care and other specifics like how the educational needs will be met for a person who’s still in the educational system.
Once the conservatorship is established, there is ongoing maintenance and reporting. A status report will be made to the court every two years, and the court will send an investigator to check on how things are going. It’s incumbent upon the conservator to reach out to the court and report if something changes. These court supervised arrangements will be in place for the lifetime of the conservatee.
Q If you have a special needs child turning 18 in California, can you set up a conservatorship before a child turns 18?
JUBILEE MENZIES Yes. You can substantially work through the process of getting a conservatorship in place so that when the child turns 18, it becomes effective immediately. But it will not go into effect while the individual is still a minor. We advise that you start the process well in advance so that everything is in place on the conservatee’s 18th birthday.
The best timeline to get a conservatorship up and running is to talk to your trusts and estates attorney when your child turns 17, so that you’ll be well-prepared a year later and there will be no gap in care when your child turns 18.
Are you searching for a Limited Conservatorship lawyer in California for someone you love?
Laughlin Legal Divorce & Family Law Group is a premier estate planning law firm Bay Area with a collection of highly skilled Limited Conservatorship attorneys who are trusted throughout California for their ability to understand and secure their clients’ needs and values for a better tomorrow.
Call us at 650.343.3486 to schedule your FREE 20-minute consultation. If you’d prefer, you can email us to set up your appointment. If we miss your call, we will respond promptly and call you back as soon as possible.
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