I recently met with a client who needed to establish a conservatorship for their child. The child was diagnosed with a mental illness before turning 18 years old. I told my client that I needed to do a little research because I was not sure if we had to file for a limited conservatorship or could file for a general conservatorship. Years ago, I filed a limited conservatorship petition on behalf of a mother who had a son with bipolar disorder. We eventually dropped the petition because the mother needed authority to consent to administration of psychotropic medications for son’s treatment and neither a general or a limited conservatorship would provide that authority. Based on what I had seen in other cases and the changes in conservatorship laws, I thought it may be different. As it turns out and as explained below, the conservatorship for my current client will be a general one.
There are several differences between a general conservatorship and a limited conservatorship, and it is important to know from the outset which will be required because it dictates how you complete the documents for the court. Filing for the wrong one can delay the process and incur additional expenses because hearings will have to be continued and amended documents filed.
The overriding difference between the two is that a limited conservatorship is required for adults with a developmental disability. It is important to know what a developmental disability is from the beginning, and this means you need to know the proposed conservatee’s diagnosis and when they received the diagnosis. The petition for a limited conservatorship requires an attachment stating the proposed limited conservatee’s diagnosis. A developmental disability is a disability that originates before the age of 18, is expected to continue indefinitely, and constitutes a substantial handicap. Substantial is defined as the disability resulting in significant functional limitations in three or more major life activities, as determined by a regional center, and as appropriate to the person’s age. The major life activities include the following: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living or economic self-sufficiency. Specific disabilities that are considered developmental disabilities for purposes of a limited conservatorship include intellectual disability, cerebral palsy, epilepsy, and autism. If the proposed conservatee ONLY has physical disabilities, then they are not developmentally disabled and a limited conservatorship is not available.
What if the proposed conservatee’s diagnosis is a mental health illness? The term “developmental disability” does not include a mental illness. This is due to treatments for intellectual disabilities are not similar to treatments for mental illness. If the only disability is a mental illness, a limited conservatorship is not available. Because both a limited and a general conservatorship will not allow the conservator to place the conservatee in a locked facility or force administration of psychotropic medication. These powers are only available with an LPS conservatorship which is for the gravely disabled by reason of mental disorder and is difficult for an interested person to initiate.
Part Two will discuss other specific differences between limited conservatorship and general conservatorships.