Navigating Special Needs Conservatorships

What to Know About the Uses and Benefits of This Type of Adult Guardianship

If you’ve been following our Special Needs Financial Planning series, you know we’ve covered government benefits, special needs trusts, ABLE accounts, and more. In this month’s article, we continue the conversation around lifetime planning by diving deep into the topic of special needs conservatorships. Read on to learn more about what they are, and why they may be necessary to protect your loved one as they age.

What Is a Special Needs Conservatorship?

A special needs conservatorship is a type of adult guardianship used for individuals with special needs who are unable to make decisions for themselves.

Parents have natural guardianship over their children until the age of 18. They can make medical, financial, and legal decisions on their behalf until that point. At age 18, however, a child becomes a legal adult, and their parents will not have a say in how their legal affairs are conducted. While this transition of legal decision-making makes sense in most cases, it can be challenging or even dangerous for individuals with special needs.

In this case, a conservatorship may be a crucial component of lifetime planning, especially if an individual experiences symptoms that make decision-making difficult or impossible. In general, a conservatorship is only granted in instances where a person is deemed to be mentally incapacitated and unable to know or understand their actions.

Types of Conservatorships

There are several types of conservatorships, including:

General Conservatorship: A court arrangement where a conservator has complete control over an individual’s medical, financial, and legal decisions. This is the most comprehensive type of conservatorship.

Limited Conservatorship of the Person: A court arrangement where a conservator cares for and protects an individual with special needs and provides for the requirements associated with daily life. Less restrictive than a general conservatorship, this arrangement only appoints certain rights to the conservator and allows the individual with special needs to maintain a degree of independence.

Limited Conservatorship of the Estate: A court agreement where a conservator handles an individual’s financial needs only. This includes paying bills and collecting income. Similar to a limited conservatorship of the person, this arrangement provides more independence than the general conservatorship.

The most appropriate option depends on your child’s specific circumstances.

Who Can Be a Conservator?

Any responsible adult can be a conservator, but typically this role is filled by a parent, sibling, or relative. Usually, the person who filed the conservatorship petition with the court is also the person who is named as the conservator, but this is not true in all cases.

When Should You Apply?

If you believe your child could benefit from conservatorship, we generally recommend that you start the legal process at least two or three months before they turn 18.

If the court has not approved the conservatorship by the individual’s 18th birthday, their parents or guardian will no longer be able to make critical decisions on their behalf. This could harm individuals who don’t have the capacity to make decisions for themselves and make the conservatorship process more difficult to complete.

Conservatorship vs. Guardianship

There is often confusion around conservatorship versus guardianship and many people use the terms interchangeably. That being said, a conservatorship is not the same as a guardianship. Here’s why:

• Conservatorships remove rights from the individual and grant them to the conservator instead. For instance, if a limited conservatorship of the estate is in effect, then the conservator can make financial decisions while the individual with special needs will no longer have the right to do so.
• A guardianship is a court arrangement in which a person is appointed to make decisions about an individual’s place of residence, financial support, daily care, and medical treatment. It is similar to a conservatorship, but it does not necessarily limit or terminate the individual’s right to consent to the decisions made. For instance, depending on the specific arrangement, an individual may still be allowed to refuse medical treatment or establish their own place of residence.

Learn More

Choosing to pursue conservatorship for your child with special needs is not an easy decision. But it may be an essential decision that could protect your loved one for years to come. That’s why it’s so important to learn more about your options and start the process as early as possible.

If you would like more information about conservatorships, Special Needs Financial Planning, or you would like to set up a time to review your specific situation, we would love to hear from you. Please click here to schedule a complimentary introductory call, or reach out to us at wealthrelations@aviancepartners.com.

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