By Orange County Special Needs Lawyer Darlynn Morgan
When a child with special needs turn 18, he or she becomes an adult in the eyes of the law. However, if the child’s disability prevents him or her from making adult decisions and being able to manage his or her affairs, the parents will need to petition the local court for a legal conservatorship over their now-adult child. Here is some important information you need to know if you decide to become your child’s adult guardian here in California.
Deciding if an Adult Guardianship/Conservatorship is Necessary
Establishing a conservatorship of your adult child is a long process that can cost a lot of money. While becoming your child’s conservator will give you the legal authority you need to manage your now-adult child’s affairs into adulthood and beyond, there are some drawbacks that parents should be made aware of such as:
- Your child will lose some degree of legal independence.
- Your child will have no authority to make decisions about his or her personal life, property or finances.
- You take on a larger burden of having to make those decisions for your adult child.
Alternatives to Conservatorship
Having a mental illness or intellectual disability does not automatically indicate that your child must have a conservator. If your adult child is high-functioning or has the capability of making his or her own decisions, then you may be able to forego filing for a formal conservatorship by instead putting the following legal safeguards in place to help your child when necessary:
- Financial Power of Attorney
- Healthcare Directive
- HIPAA Authorization
- Special Needs Trust
Before you can legally gain a conservatorship over your adult child with disabilities, a court must first determine that your child is not capable of taking care of him or herself. To make this decision, a judge will likely ask for medical evidence from a treating physician that attests to the level of functioning, decision-making ability, prognosis and diagnosis. Depending on the individual situation, other information may be requested as well. The standards are different for each state, so it is crucial that you talk to a special needs attorney in California about exactly what is required.
The Powers and Duties of a Conservator
The powers and duties of a conservator or adult guardian will ultimately be decided by a judge who is in charge of the case and will normally be based on the physical and mental needs of the adult child in question. Most states require that guardians file reports on their actions on a regular basis to ensure the disabled person’s needs are truly being met and to determine if any modifications need to be made.
If you need assistance gaining a conservatorship for your adult child with special needs, we can help you. Simply contact our Newport Beach law firm at (949) 260-1400 to set up a consultation.