A limited conservatorship is a protective proceeding for adults who are developmentally disabled. The purpose of limited conservatorships is twofold: First, to provide a proceeding for developmentally disabled individuals to have assistance when their disabilities interfere with their ability to care for themselves and their assets. If the disability is severe, then a general conservatorship may be more appropriate. The second purpose of limited conservatorships is to encourage developmentally disabled adults to achieve maximum self-reliance and independence.
When a limited conservator is appointed by the court for a developmentally disabled adult they have the responsibility for the care, custody and control of the limited conservatee. The court also tasks the limited conservator to “secure for the limited conservatee such habilitation or treatment, training, education, medical and psychological services, and social and vocational opportunity as appropriate and as will assist the limited conservatee in the development of maximum self-reliance and independence.” California Probate Code Section 2351.5 (a)(2).
The limited conservator has to request that the court grant them specific powers to fulfill the mandate that the court has tasked them with regarding the care of the limited conservatee. The following are the seven specific powers that can be requested:
- To fix the residence or specific dwelling of the limited conservatee;
- To have access to the confidential records and papers of the limited conservatee;
- To consent or withhold consent to the marriage of, or entrance into a registered domestic partnership by, the limited conservatee;
- To control the right of the limited conservatee to contract;
- To hold the power of the limited conservatee to give or withhold consent to medical treatment;
- To exercise the limited conservatee’s right to control their social and sexual contacts and relationships; or
- To make decisions concerning the education of the limited conservatee.
It is my experience that the powers to have access to the confidential records, control the right to contract, and give or withhold consent to medical treatment are typically the ones that the court, the court investigator, court appointed counsel and the local regional center are willing to grant. Occasionally there is some resistance, typically from the regional center, to grant the powers to fix the residence and to make education decisions. The powers to consent or withhold consent to marriage and the right to control social and sexual contacts are usually the powers that the regional center will recommend not be granted. In the post Britney Spears conservatorship realm, I anticipate it becoming more difficult to have all seven powers granted in a limited conservatorship. If someone is requesting those powers and there is an objection, the parties will need to be prepared to argue why those powers are necessary. Working with court appointed counsel to prove the need for those powers is important.
The limited conservatorship is subject to regular reviews – typically one year after establishment and then every two years. However, I have had the court set a shorter time frame when there is hesitation on the court’s part to grant certain powers. The purpose of the reviews and recent changes in the law, is to determine whether the limited conservatorship is still needed. The court, the investigator, the regional center and court appointed counsel will review whether certain powers should be revoked or additional powers granted and whether the conservatorship remains in place at all with the focus being on the limited conservatee’s ability to be self-reliant and independent.
When arguing for certain powers, it is important to have specific examples of why they are needed and to have documentation if available.