Guardianship, Conservatorship, and Other Care Arangements

Many parents and caregivers of persons with an FASD seek resources to ensure their loved one's long-term physical and financial security, especially as he or she transitions from adolescence to adulthood.

In California, there are two types of programs so that the individual who needs others to care for or oversee their care has a legally-recognized (and legally binding) relationship with another person who may or may not be a biological or adoptive parents: guardianship and conservatorship. Guardianship is for persons living in California who are under 18; conservatorship is for those 18 and over. These systems have similarities and differences.

Conservatorship

What Should Parents/Caregivers Do When a Child With FASD Turns 18?

A conservatorship is awarded by a California probate judge who appoints a responsible person or organization (called the “conservator”) to care for another adult (called the “conservatee”) who cannot care for himself or herself or manage his or her own finances.

There are various types of conservatorships depending on the needs of the conservatee:

Probate Conservatorships

These conservatorships are based on the laws in the California Probate Code. They are the most common type of conservatorship. Probate conservatorships can be:

  • General Conservatorships — conservatorships of adults who cannot take care of themselves or their finances. These conservatees are typically elderly people, but can also be younger adults who have become seriously impaired after having been competent to care for themselves in the past.
  • Limited Conservatorships — conservatorships of adults with developmental disabilities who cannot fully care for themselves or their finances. Conservatees in limited conservatorships do not need the higher level of care or help that conservatees in general conservatorships need.

Lanterman-Petris-Short (LPS) Conservatorships

LPS conservatorships are used to care for adults with serious mental health illnesses who need special care. These conservatorships are used for people who usually need very restrictive living arrangements (such as secure areas of psychiatric hospitals) and require extensive mental health treatment (such as powerful drugs to control behavior). Conservatees in LPS conservatorships cannot or will not agree to the special living arrangements or treatment on their own. LPS conservatorships must be started by a local government agency.

LPS conservatorships last for only one year. If they are needed longer than that, they must be restarted and the conservator must be reappointed by the court. The government agency may recommend that a family member of the conservatee be appointed as LPS conservator, but this happens usually only after the first year.

These conservatorships are only for adults who are gravely disabled as a result of a mental illness listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM). The most common mental illnesses are serious, biological brain disorders, like:

    • Schizophrenia,
    • Bipolar disorder (manic depression),
    • Schizo-affective disorder,
    • Clinical depression, and
    • Obsessive-compulsive disorder.

LPS conservatorships are not for people with organic brain disorders, brain trauma, developmental disability, alcohol or drug addiction, or dementia, unless they also have one of the serious mental illnesses listed in the DSM.

If you believe that this is the type of help your adult loved one with FASD needs, contact your local county Public Guardian or Public conservator.

Alternatives to Conservatorship

California courts are reluctant to withdraw the rights of an adult to make decisions for his or her personal or health care or about his or her finances and other assets. The conservatorship process is long and complex, and the probate court expects the prospective conservator to have good reasons for requesting it in lieu of other options. Without a complete rationale for reguesting a conservatorship, the court may not grant it.

The individual with FASD may not need a conservatorship if he or she:

  1. Can cooperate with a plan to meet his or her basic needs.
  2. Has the capacity and willingness to sign a power of attorney naming someone to help with his or her finances or health-care decisions.
  3. Has only Social Security or welfare income every month and the Social Security Administration can appoint you Representative Payee. (The Representative Payee is the person the beneficiary allows to receive social security checks in his or her name on behalf of the beneficiary.)
  4. Is married or is in a domestic partnership, and the spouse or partner can handle financial transactions. The property must be community property or in joint accounts.

For medical and personal care decisions, alternatives to conservatorship include:

  • Advance health care directive
  • Court authorization for medical treatment
  • Informal personal care arrangements
  • Restraining orders to protect against harassment

For financial decisions, alternatives to conservatorship include:

  • Power of attorney
  • A substitute payee for public benefits (like Veterans’ benefits or Social Security benefits)
  • Informal arrangements
  • Joint title on bank accounts or other property
  • Trusts

Useful Links

When Your Child Turns 18: A Guide To Special Needs Guardianship This article was written by a specialist outside of California. Although California uses the term conservatorship for its program of guardianship for adults, the concepts are the same.
California Handbook for Conservators
California Adult Protective Services

Guardianship

What is Guardianship?

Guardianship is a court-ordered plan to name someone other than the child’s parent to:

  • Have physical custody of the child (ages birth to 18 years)
  • Manage the child's property (called "estate"); or
  • Both.

In California one may be appointed as guardian by the probate court or by the juvenile dependency court. In probate court, the individual who wants to be appointed guardian (often a grandparent or other adult relative of the child) submits the application and supporting documentation to the court to become the child's guardian. In the juvenile dependency court, the court is asked by a child protection agency to remove the parent's authority as guardian (if the parent is alive and has legal rights toward the child) and assign someone else to this role.

A probate guardianship of the person is set up because a child is living with an adult who is not the child’s parent, and that adult needs a court order to make decisions on behalf of the child. Legal guardians have a lot of the same rights and responsibilities as parents. They can decide where the child lives and goes to school, and they can make decisions about the child’s health care.

Guardianship is different from adoption because the child's parents can remain a part of the child's life: Parents can ask for and be awarded reasonable contact with the child by the court; the court can end a guardianship if the parents become able to take care of their child; and guardians can be supervised by the court.

There are two types of probate guardianship:guardianship of the person and guardianship of the estate. In some cases the same person can be the guardian of the person and of the estate. In other cases, the court will appoint two different people.

Becoming a Guardian in California

Prospective guardians must file papers with the court and complete several steps leading up to a court hearing.  In general, an attorney's help is not required. A lawyer can help present the potential guardian's petition to the court, especially if one or both parents object to the guardianship; for children with developmental disabilities such as FASD, and the following other complicating issues:

  • The child has property with a lot of value;
  • The person who wants to become the child's guardian lives outside California;
  • There are other legal cases going on at the same time involving the child or child custody (such as adoption, custody in family court, or  juvenile charges); or
  • The child is Native American (because federal laws apply).

Note: Usually, the prospective guardian must file a guardianship petition in the county where the child lives. However, if there is a child custody case already with custody orders affecting the child in a different California county, the guardianship petition must be filed in that county and in the court where the custody orders exist. That way, there will not be two different courts issuing custody orders about the minor that could conflict with each other.

Useful Sites

Guardianship- A California Courts Guide
Caregivers and the Courts
Juvenile Court Guardianship
Guardianship - Frequently Asked Questions Scroll down the page to find this heading on the page.

 
Special Needs Trusts

Special Needs Trusts can be very helpful for an adult with special needs. 

Useful Sites

The Pros and Cons of a Special Needs Trust: Ensuring Your Child’s Future

 
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