Most people do not understand how complex and intricate the legal system handles conservatorships from one Google search. You, like thousands of clients we have worked with in the past, may have a loved one who does not have the capability of making decisions for themselves. Whether they have a developmental disability or a physical illness, wrestle with addiction, or are elderly targets for easy manipulation, these all constitute a conservatorship.
Your adult family member or friend needs a conservatorship tailored to their circumstances that will help them gain independence again or be a permanent solution for their happiest life possible. A power of attorney is another legal solution you may have researched, but it could be too late or insufficient depending on your loved one’s condition.
This comprehensive guide has everything you need to know about adult conservatorships. You can walk away confident, knowing the conservatorship option your loved one needs, and how to petition a probate court for help.
What is a conservatorship?
If you have been following the Brittney Spears case online and in the New York Times, it is a battle surrounding conservatorships. They are legal arrangements you can petition on your loved one’s behalf, where a judge will appoint a conservator to help them make decisions. Then, the county or state court will keep the conservator accountable during the entire process, whether temporary or permanent.
A prerequisite for receiving a conservatorship is your family member or friend’s incapacitation, meaning they are mentally ill or physically incapable of taking care of themselves and living their daily life. The courts have specific probate codes for what incapacitation means, which a conservatorship lawyer can walk you through.
You can consider a power of attorney in the event that the judge does not rule the proposed conservatee as “incapacitated” if your loved one is willing to release decision-making powers to you or another trusted individual.
What types of conservatorships for adults are there?
Again, various situations require a conservatorship, and the law cannot treat every case the same, resulting in different types of conservatorships. You have complete authority over your loved one if you were their parent or a legal guardian before they turned 18, but when they turn 18, you must seek out legal solutions designed to help adults in all stages of life.
A general conservatorship is the base level conservatorship for your loved one if they cannot take care of themselves or their finances. Physical injury, dementia, Alzheimer’s, addiction, and comas are all valid reasons for a judge to appoint your loved one a conservator.
The decision-maker in your loved one’s life (the conservator) can have authority over their person, estate, or both. For example, the conservator of the estate could have the legal power to file their taxes, pay their bills, and create their budget under a conservatorship bank account. A conservator of their person could assist them with tasks surrounding basic life functions, such as cooking, helping them use the bathroom, deciding medical treatment, and choosing their social circle, on the other hand.
The acronym “LPS” stands for Lanterman-Petris-Short Conservatorship and is a conservatorship specifically made for individuals with extreme mental health conditions and have a restrictive living situation. These conservatees receive active mental health treatment and are likely in a mental hospital for their safety and the safety of others, unable to make any decisions on their own.
Mental health patients are eligible for general conservatorships too, but they advance to LPS Conservatorships if the person has a severe mental condition, such as schizophrenia, bipolar, clinical depression, and alcoholism. Although a judge could appoint a private citizen to care for an LPS conservatee, they could also choose the county’s public conservator since the work is intense.
If your adult family member or friend has autism, down syndrome, cerebral palsy, or a different intellectual disability, they are eligible for a limited conservatorship. These legal arrangements serve to assist them with daily living and managing their money if they have a developmental disability that “began before the age of 18, interferes with cognitive development, is substantially handicapping, and is expected to last indefinitely.”
The law grants your child complete freedom as an adult over the age of 18 since they are not incapacitated, so you need to petition a limited conservatorship with your county or state court so they can gain independence.
Your loved one may require a temporary conservatorship, depending on the circumstances leading up to any of the previous conservatorship types. The judge will grant these in extreme situations where they needed immediate decision-making assistance that could not wait for in the official court hearing.
A temporary conservatorship will typically last no longer than 30-60 days and a temporary conservator will be in charge of their person, estate, or both. And this legal arrangement will end when the binding general, LPS, or Limited conservatorships begin.
The Conservatorship Hearing
After you petition for a conservatorship and go through the beginning steps of the conservatorship process, a judge will call you, the proposed conservatee, the court investigator, attorneys, and other interested parties to the courthouse. The conservatorship will only proceed to probate if the judge approves your petition and the court investigator agrees with your assessment that the individual was incapacitated.
All parties will also discuss the degree of your loved one’s incapacitation and what kind of conservatorship assistance they will require. It is critical to have worked with an experienced conservatorship attorney up to this stage since they can establish validity to your side of the case, securing the help your loved one needs. The judge will also create a timeline for the conservatorship, whether permanent or temporary, and evaluate it yearly.
Finally, the judge will rule whether your loved one needs a conservatorship of the estate, person, or both, or assign conservators to fulfill these roles. They could be two separate individuals or be the same person. Or they might be a family member or professional conservator that receives the legal authority to take care of their personal and financial affairs.
The Letters of Conservatorship
A judge will discuss these during the court hearing and lay them out in the Letters of Conservatorship, which the appointed conservator(s) will receive from the county clerk afterward. The official document is proof they have the law’s permission to act on behalf of your incapacitated family member or friend.
Your state’s probate code and the judge’s discussion with all involved parties will also grant them powers or general decision areas conservators have that the Letters of Conservatorship do not directly spell out. As with the Britney Spears’ conservatorship case, there were ample instances of conservatorship abuse where conservators took unconstitutional measures against the pop star.
We recommend contacting the same conservatorship lawyer you worked with to establish the arrangement if you notice any strange patterns and sue when necessary. They will understand your case intimately rather than working with a new lawyer and explain the blurred lines between powers and voiding rights the conservatee retains.
We’re a Force of Conservatorship Experts
Your adult is never too far from a future where they live a happy life under safe boundaries a conservator can establish. And in hundreds of cases, your loved one has the potential to regain independence through job training, life skills programs, and other teaching they set in motion. Conservatorships can be the legal solution your adult needs to assist their person or estate with decision-making and give you peace of mind that an intentional individual cares for them as much as you would.
Our team specializes in solving the most intricate probate questions by listening to your conservatorship story and offering expert legal advice. When you file a petition with our firm, you gain a force of conservatorship lawyers that represent you in probate and deliver results. You can set a consultation with one of our attorneys by calling (800).840.1998 or visiting our website.