Raising a child with special needs can be a challenging, all-consuming, full-time job. It can also be highly rewarding, but parents know the demands often seem endless. It's not uncommon for them to live almost in orbit of their children, patiently tending to their meals, homework, medications and activities.
Then, magically, when these children reach age 18, the kids become adults in the eyes of the law and gain a whole range of new legal privileges and responsibilities. As a parent, you may suddenly find yourself held at arm's length.
You may lose access to your child's confidential records, lose the power to make medical decisions and learn that your child is free to move out and get married. But you know your child won't suddenly become any more capable just by growing one day older. Parents whose adult children will still need significant help and at the same time want to keep them independent may want to file for a limited conservatorship.
What is a limited conservatorship?
A parent may wish to file for a limited conservatorship over his or her now adult child to give him or her the legal right to help make certain decisions for their developmentally disabled adult. Your adult child becomes the limited conservatee (the subject of the conservatorship), and the parent that petitioned the court or another interested individual-may be granted the legal powers by the court (Letters of Limited Conservatorship) and appointed the limited conservator.
What powers does a limited conservatorship grant?
The court will consider your adult child's case and grant the limited conservator only those specific decision-making powers it feels are appropriate and necessary. According to the Superior Court in Santa Clara County, depending on your adult child's needs, you may be able to:
•· Decide where your child will live
•· Sign contracts for your child
•· Agree to medical treatment
•· Permit or prevent your child's marriage
•· Review your child's medical record and other confidential documents
•· Manage your child's finances
•· Participate in educational and career decisions
•· Limit your child's social and sexual relationships, such as filing a restraining order on your child's behalf
•· Place your child in a state hospital or facility for the developmentally disabled
Can only parents become limited conservators?
Any adult can potentially become a limited conservator. It's often a good idea to appoint multiple conservators (co-conservators, such as parents and other adult siblings). This can ensure your adult child will still have help should anything happen to you or, if for some reason, you have to resign.
How does someone become a limited conservator?
You'll need to file multiple forms and attend a hearing. In addition, the Court will appoint a Court Appointed Counsel to represent your adult child in the proceedings and will also send a Court Investigator to investigate the suitability of requested powers and the proposed conservators. Further, your adult child's Regional Center Service Coordinator will prepare a report on their recommendations regarding your adult child's capability of handling specific adult decisions. You are not required to have a lawyer, but an experienced lawyer may help guide you through the more complicated parts of the process. A lawyer may also help you more successfully show the court why you need the legal powers you seek.
Does a limited conservatorship grant me control of my child's estate?
Most limited conservatorships are over the "person" and do not include powers of the "estate". But you don't necessarily need conservatorship of your child's estate. If your child earns a wage or receives public aid and has no other assets, you don't need conservatorship of the estate. You will likely want to pursue a limited conservatorship of your adult child's estate if he or she has an inheritance or other assets that are not all held in a special needs trust.
Planning for a seamless transition
Parents with special needs children will be familiar with both routines and surprises. Your child's eighteenth birthday shouldn't come as a surprise, so you'll want to prepare for his or her transition to legal adulthood well in advance. The application process can run long, and Santa Clara County suggests that parents should file at least three months in advance. Of course, you can file even earlier, and filing several months in advance can help ensure you'll be there to help your 18-year-old every bit as much as you help your 17-year-old.