Guardianship, Conservatorship, and Other Care Arangements
Many parents and caregivers of persons with an FASD seek resources to ensure their loved one’s long-term physical and financial security, especially as he or she transitions from adolescence to adulthood.
In California, there are two types of programs so that the individual who needs others to care for or oversee their care has a legally-recognized (and legally binding) relationship with another person who may or may not be a biological or adoptive parents: guardianship and conservatorship. Guardianship is for persons living in California who are under 18; conservatorship is for those 18 and over. These systems have similarities and differences.
What Should Parents/Caregivers Do When a Child With FASD Turns 18?
A conservatorship is awarded by a California probate judge who appoints a responsible person or organization (called the “conservator”) to care for another adult (called the “conservatee”) who cannot care for himself or herself or manage his or her own finances.
There are various types of conservatorships depending on the needs of the conservatee:
These conservatorships are based on the laws in the California Probate Code. They are the most common type of conservatorship. Probate conservatorships can be:
- General Conservatorships — conservatorships of adults who cannot take care of themselves or their finances. These conservatees are typically elderly people, but can also be younger adults who have become seriously impaired after having been competent to care for themselves in the past.
- Limited Conservatorships — conservatorships of adults with developmental disabilities who cannot fully care for themselves or their finances. Conservatees in limited conservatorships do not need the higher level of care or help that conservatees in general conservatorships need.
Lanterman-Petris-Short (LPS) Conservatorships
LPS conservatorships are used to care for adults with serious mental health illnesses who need special care. These conservatorships are used for people who usually need very restrictive living arrangements (such as secure areas of psychiatric hospitals) and require extensive mental health treatment (such as powerful drugs to control behavior). Conservatees in LPS conservatorships cannot or will not agree to the special living arrangements or treatment on their own. LPS conservatorships must be started by a local government agency.
LPS conservatorships last for only one year. If they are needed longer than that, they must be restarted and the conservator must be reappointed by the court. The government agency may recommend that a family member of the conservatee be appointed as LPS conservator, but this happens usually only after the first year.
These conservatorships are only for adults who are gravely disabled as a result of a mental illness listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM). The most common mental illnesses are serious, biological brain disorders, like:
- Bipolar disorder (manic depression),
- Schizo-affective disorder,
- Clinical depression, and
- Obsessive-compulsive disorder.
LPS conservatorships are not for people with organic brain disorders, brain trauma, developmental disability, alcohol or drug addiction, or dementia, unless they also have one of the serious mental illnesses listed in the DSM.
If you believe that this is the type of help your adult loved one with FASD needs, contact your local county Public Guardian or Public conservator.
Alternatives to Conservatorship
California courts are reluctant to withdraw the rights of an adult to make decisions for his or her personal or health care or about his or her finances and other assets. The conservatorship process is long and complex, and the probate court expects the prospective conservator to have good reasons for requesting it in lieu of other options. Without a complete rationale for reguesting a conservatorship, the court may not grant it.
The individual with FASD may not need a conservatorship if he or she:
- Can cooperate with a plan to meet his or her basic needs.
- Has the capacity and willingness to sign a power of attorney naming someone to help with his or her finances or health-care decisions.
- Has only Social Security or welfare income every month and the Social Security Administration can appoint you Representative Payee. (The Representative Payee is the person the beneficiary allows to receive social security checks in his or her name on behalf of the beneficiary.)
- Is married or is in a domestic partnership, and the spouse or partner can handle financial transactions. The property must be community property or in joint accounts.
For medical and personal care decisions, alternatives to conservatorship include:
- Advance health care directive
- Court authorization for medical treatment
- Informal personal care arrangements
- Restraining orders to protect against harassment
For financial decisions, alternatives to conservatorship include:
- Power of attorney
- A substitute payee for public benefits (like Veterans’ benefits or Social Security benefits)
- Informal arrangements
- Joint title on bank accounts or other property
When Your Child Turns 18: A Guide To Special Needs Guardianship This article was written by a specialist outside of California. Although California uses the term conservatorship for its program of guardianship for adults, the concepts are the same.
California Handbook for Conservators