Guardianships and conservatorships are legal concepts which are often confused with each other. One is especially helpful for parents of children with special needs, and one is not. Do you know which is which?
What is it?
When children are under the age of 18, their parents are their legal guardians by operation of law, unless a court has ordered otherwise. Courts may appoint another adult who is not the child’s parent to take care of the child or the child’s property while the child is a minor. A guardianship allows an adult who is not the child's parent, to act as a parent, to enroll the child in school, and make educational decisions for the child. For example if a child’s parent is involved with drugs, or is incarcerated and cannot take care of the child, a grandmother or other family member might have to step in and assume the role of parent. Being designated the guardian by the court would give the family member (or other person) the legal authority to act as a parent to the child.
How is it created?
To create a guardianship, the proposed guardian files paperwork and pays a filing fee (unless a fee waiver can be obtained) with the family law court. Often courts have self-help information on their websites explaining the process. The Orange County Superior Court has self-help information on their website.
The proposed guardian must omplete all the necessary forms and provide facts to the court explaining why the guardianship is necessary. A hearing before a judge is held, and if granted, the guardian is provided letters of guardianship, and then has the authority to act on the child’s behalf in all matters as permitted by the court.
Being appointed a guardian can be a god-send in a tough situation where someone has to step in and care for a child, and do things like enrolling the child in school, obtaining health insurance, or collecting the child’s social security benefits. Some disadvantages to this process are the necessity of going through the tedious application process, having to keep detailed records, and having to file a yearly financial accounting to the Court.
Caregiver’s Authorization Affidavit
In California there is the alternative to a guardianship. A parent may complete a Caregiver’s Authorization Affidavit pursuant to Family Code Section 6550. A person related to the child may be given permission by the parent by way of this form to enroll the child in school and secure medical treatment. This method is simpler, but is not as permanent (it can be revoked at any time) and is not as broad in terms of the powers it confers on the person acting on behalf of the child.
A conservatorship functions much in the same way as a guardianship, except it is for persons 18 and over. Like a guardianship, it is a legal relationship between a protected person (known as the “conservatee”) and an individual appointed by the court to manage the affairs of the protected person (the “conservator”) because of incapacity. Conservatorships are often used by parents with special needs children 18 and over. A conservatorship enables a parent to continue to make decisions for their child, even after the child is 18.
There are different types of conservatorships:
Limited conservatorship- This type of conservatorship is for persons who are developmentally disabled, and need help in only certain areas. Typically a person qualifies for a limited conservatorship if they have autism or have an IQ of less than 70. There are other qualifying conditions as well. The judge will tailor the powers of the conservator to suit the situation, and to cover the types of things the conservatee cannot do.
LPS conservatorship – This is a mental health conservatorship, and it is for people who are seriously mental ill and need special care, such as placement in a residential care facility. There are procedures to compel the mental assessment of persons against their will, where necessary. In Orange County for example, parents can petition the Public Guardian for help with an involuntary evaluation. See link here.
Probate conservatorship – A probate conservatorship is where the court appoints a person to be responsible to care for another adult who cannot always adequately care for themselves and/or their finances. The conservatorship can be of the person (cares for and protects the person) or of the estate (and handles financial matters like managing property and paying bills).
How are they created?
A conservatorship is created in the same way as a guardianship. Paperwork is filed with the court, and the filing fee is paid, unless a party qualifies for a low income fee waiver. An attorney is not necessary, but is desirable.
Advantages / Disadvantages
A conservatorship has basically the same advantages and disadvantages as a guardianship. Yearly accountings must be provided to the court, and the court does oversee the conservatorship. Conservators may also petition the court to be paid for their time and reimbursed from the assets of the conservatee for legal fees incurred in managing the conservatorship.
How long does the process take?
The court recommends that the process be started at least three months before the conservatorship is needed. So for example, if it is needed for a developmentally disabled youth, the process should be begun at least three months before the youth’s 18th birthday.
You may also wish to read the related blog on special needs trusts.