Special Needs Planning with a Limited Conservatorship

Autism and other conditions can affect people throughout their whole lives, and some may need assistance throughout adulthood. However, in the eyes of the law all adults who reach the age of majority become independent and are presumed to have the ability to make their own decisions, including financial decisions. Some adults with special needs may never be able to make these decisions, and a legal mechanism is required to get them the assistance they need. That is why many parents and loved ones of adults with special needs may choose to initiate limited conservatorship (in some states, referred to as financial guardianship) proceedings.

What is a limited conservatorship?

Many adults with special needs can make basic decisions for themselves on a day-to-day basis but may struggle with other, more complex financial tasks. A parent or loved one may then choose to become the adult’s limited conservator, for example handling all the financial affairs while leaving other decisions up to the adult with special needs. A limited conservatorship is different from a general conservatorship, where the guardian makes all decisions for an adult who has been declared legally incompetent. Limited conservatorships are limited to specific areas, like finances, whereas general conservatorships cover all areas.  However, in California, limited conservatorships are only available where the Conservatee is determined to be “developmentally disabled.”

What is the role of a limited conservator?

 A limited conservator only manages certain aspects of another adult’s life, such as finances. They can then pay bills, make or authorize purchases for the adult, allocate funds for medical procedures or other necessities, and create or maintain financial accounts, investments, and estates.

A limited conservator must account for the adult’s money, and they may not financially benefit from the adult’s estate or money. For example, a limited conservator can use the money to buy clothes for the disabled adult, but not for herself.

Isn’t a power of attorney a better option?

A power of attorney requires less legal wrangling, but the issue comes down to competency. In the case of a power of attorney, one adult (the grantor) grants power over their financial affairs to another adult. The grantor can revoke the power of attorney when they are competent to do so. However, this person must be competent when granting the power of attorney and understand the consequences of turning over this power to another adult. An adult with special needs may not have the legal competency to sign official documents or give their rights over to another person. Signing a Power of Attorney is not an option if competency is at question, and the courts must get involved instead.

If you have questions about becoming a financial guardian, or if you’re currently going through the guardianship process and need advice, contact us at (650) 422-3313 to set up a consultation.