The ABC’s of Estate Planning by Attorney Gerald Cummings ~ Part 4 of 5
In an earlier article, I discussed planning for a disabled child through the use of special needs trusts. These ensure that money can be set aside for the disabled child after his or her parents’ death without preventing the child from receiving SSI and Medi-Cal and other needs based governmental programs. This month, we will focus on what happens when a developmentally disabled child turns eighteen and becomes an adult.
Many parents think that they will still be able to legally make decisions for their developmentally disabled child when he or she turns eighteen. This is, in fact, not true. Once that child turns eighteen, he or she is an adult and is legally entitled to make his or her own decisions. If the child is so disabled as to be incapable of making decisions, the Regional Center that their child is a client of will be entitled to make decisions for that child. In order to obtain authority to make decisions on behalf of their developmentally disabled child, the parents will need to obtain a limited conservatorship.
A limited conservatorship is a court proceeding where one or more persons (typically the parents) are given authority to make decisions on behalf of a developmentally disabled child who is now an adult. It is “limited” in that the conservators (the person or persons who make the decisions) are only given authority to make decisions in areas they ask for that authority in. Typically areas that a conservator would be given authority include the ability to decide where the child will live, the ability to access confidential records and papers of the child, the ability to make medical decisions for the child, the ability to contract on behalf of the child, and the ability to make educational and vocational training decisions for the child. Other powers and authority can be given if the court feels it is necessary and appropriate.
In most cases, a limited conservatorship of the person will be sufficient, as the child will usually not have any assets to manage other than SSI benefits. If the child does have assets, a limited conservatorship of their estate will be necessary.
A limited conservatorship is started by filing a petition with the probate court in the county in which the child lives. Court personnel will investigate the appropriateness of the limited conservatorship and the proposed limited conservators and will make a recommendation to the court. In addition, the Regional Center of the child will issue a report to the court regarding the appropriateness of the limited conservatorship. Finally, the Office of the Public Defender will be appointed to represent the developmentally disabled child and will also give a recommendation to the court as to the appropriateness of the limited conservatorship and the proposed limited conservators. Assuming that everything is in order, the court will approve the limited conservatorship and will issue Letters of Conservatorship to the conservators. The Letters are proof that the conservators can speak for the conservatee (the disabled child) and copies will need to be given to the service providers that the conservatee uses (Regional Center, doctors, employers, etc.).
If you have any questions about this article or any of the topics discussed, please feel free to call me at (408) 286-2122.
Gerald W. Cummings is an estate planning attorney in San Jose, California. He works with families to help them achieve peace of mind, the peace of mind that is obtained by putting their wishes down in their wills, trusts, and other estate planning documents. He can be found on the web at www.cummingslegal.com.