Alexis Lynch, Attorney at Law
The transition to adulthood is laden with uncertainties for parents of special needs young adults. Parents want to encourage independence and decision-making skills in their child, but also want to know they will still be able to make important decisions concerning their child, such as the residence, medical treatment and education of their child.
From a legal standpoint, in California once a child turns 18, parents no longer legally have a say in these matters. This loss of legal authority can result in losing access to their child’s confidential records, such as school or medical reports, or hitting roadblocks when governmental agencies or financial institutions refuse to assist a parent without proof of legal authority. Even worse, some doctors will not perform medical treatment without the consent of the child, even if that child is unable to communicate consent.
Establishing a conservatorship allows a parent to retain these legal authorities related to their child’s personal or financial needs. The Court appoints a parent (or another responsible adult) as conservator of the adult disabled child. A conservatorship of the person grants a conservator authority over the personal care of the conservatee, and a conservatorship of the estate grants the conservator the authority to manage the conservatee’s assets. A conservatorship can be of the person, of the estate or both.
In California, establishing a conservatorship involves the following steps:
• The proposed conservator files a petition and accompanying documents with the local Court.
• The Court appoints an attorney to represent the disabled child. In some counties this attorney is the pubic defender and in other counties it is a private defender.
• The Regional Center prepares a required report stating their opinion about the powers being requested by the proposed conservator.
• The child’s doctor completes a required form stating his/her opinion about whether the child lacks the capacity to give informed consent to medical treatment;
• A Court Investigator conducts an investigation, which includes interviewing various people associated with the child (for example family members, teachers, aides); and
• A hearing takes place in front of a judge.
Conservatorship cases are handled by the Probate Court in the county where the disabled child resides. The entire process of establishing a conservatorship generally takes 2-3 months, but can take longer depending on the amount of time required to prepare the petition and how backlogged the court is. A conservatorship cannot go into effect until the child turns 18, but parents can start the process before then so that the conservatorship will be in place on the child’s 18th birthday.
Parents can hire an attorney to handle most of the work for them or they can complete the process without the assistance of an attorney. Some court websites (such as Marin and Santa Clara) provide useful information about the process and explicitly list what documents they require. For all California courts, the necessary forms can be found by visiting the forms section of the California Courts website using the “Probate – Conservatorships and Guardianships” option from the pull-down menu.
Once a conservatorship is established, it lasts the lifetime of the conservatee. A Court Investigator conducts an investigation after the first year and every two years thereafter to confirm that the conservatorship is still necessary and to ensure the conservatee is receiving the necessary care.
Alexis Lynch is an attorney that handles conservatorship cases for special needs families throughout the Bay Area. She previously worked at an estate planning firm where many clients were special needs parents. She found the relationships she developed with these clients to be the most rewarding so she launched her own practice to work exclusively with special needs families. She can be reached at firstname.lastname@example.org, and you can learn more at http://alexislynchlaw.com.