In California, conservatorship can be over a person or over an estate, but the two conservatorships are separate authorities and both must be requested through a court if desired. Generally, with proper planning, only a conservatorship over a person is required in special needs planning because all assets are removed from the estate of the individual living with special needs in order to qualify for government benefits, meaning there is no estate to conserve in most cases. If you believe your loved one has the capacity to make decisions for themselves, a conservatorship may not be necessary as a properly drafted power of attorney and advance healthcare directive may sufficiently protect the individual living with special needs.
There are also three types of conservatorships in California: limited conservatorship, conservatorship, and LPS conservatorship. In the context of planning for individuals with developmental disabilities, a limited conservatorship is the appropriate conservatorship. If a loved one living with special needs developed his or her disability after attaining age 18, a general conservatorship should be sought. A LPS conservatorship is established to arrange mental health treatment and placement for individuals who are gravely disabled, as determined by a court. LPS conservatorships are generally instituted and handled by the Public Guardian in the county in which the individual resides.
A limited conservatorship may be appropriate if the individual with development disability lacks sufficient capacity to properly provide for his or her personal needs for physical health, food, clothing, or shelter. In this situation, family members or other interested persons must petition the probate court for appointment of limited conservatorship and the individual must be evaluated by the nearest Regional Center.
A court appointed limited conservator can petition the court for seven powers: (1) Fix the conservatee's residence or dwelling; (2) Access the conservatee's confidential records or paper; (3) Consent or withhold consent to marriage on behalf of the conservatee; (4) Enter into contracts on behalf of the conservatee; (5) Give or withhold medical consent on behalf of the conservatee; (6) Select the conservatee's social and sexual contacts and relationships; and (7) Make decisions to educate the conservatee.
By statute, a limited conservatorship may be utilized only as necessary to promote and protect the well-being of the individual, shall be designed to encourage the development of maximum self-reliance and independence of the individual, and shall be ordered only to the extent necessitated by the individual's proven mental and adaptive limitations.
A limited conservatorship of the estate is not necessary if the developmentally disabled adult you care for gets public assistance, like Supplemental Security Income (SSI) or Social Security (SSA) but has no other assets.