Estate Planning: Conservatorship

Nationwide Cerebral Palsy Resource Network

When your special needs child turns 18, he or she is deemed to be a legally competent adult, with full control over finances, living arrangements, employment, and the like. This can be problematic for adults with disabilities who have difficulty making appropriate decisions or are at risk of others taking advantage of them. For this reason, conservatorships have been created to allow parents or other responsible adults some degree of control over the affairs of their disabled adults.

At Stern Law, PLLC, we understand that just because your child has become a legal adult, he or she may still require some special care. To learn more about conservatorship and other options for special needs estate planning, please call (800)462-5772 today.

When is a conservatorship necessary?

The decision of whether or not to seek conservatorship of your adult disabled child will depend upon your individual situation. The following are a few factors to consider when determining if a conservatorship is necessary:

  • What is the degree of your adult child’s disability;
  • Is your child able to provide for his or her own food, clothing, shelter, and medical needs;
  • What financial decisions is your child unable to make;
  • Will your child’s doctor continue to accept parental consent for medical treatment even after your child reaches adulthood;
  • What alternatives to conservatorship may exist for your child? For instance, if your child’s income is limited to SSI, you may be able to avoid a conservatorship through appointment of a representative payee.

These are just some of the many relevant considerations. A seasoned estate planning attorney with experience in the field of disability law can discuss the types of conservatorship and help you make crucial decisions.

Petitioning for conservatorship

The first step to obtaining a conservatorship is consulting with a local attorney well versed in this special area of the law. Conservatorship proceedings must be initiated by filing a petition in the appropriate court, which depends on your state. A hearing will then be scheduled and you will be required to notify certain parties of the petition and the pending hearing.

Generally, the disabled adult must attend the hearing. Depending upon your state’s laws, an investigation may be conducted beforehand to determine whether the disabled individual contests the conservatorship or wishes to obtain legal counsel. This requirement may be waived if the disabled adult attends the hearing, executes the petition, and nominates his or her own conservator.

After appointment of a conservator, he or she must file a general plan detailing how the needs of the ward, both personal and financial, will be met. The court will review the plan and may schedule a hearing if it feels the plan is not in the best interests of the ward. The conservatorship will generally be reviewed on an annual basis and some courts will require an accounting be filed if the estate is involved in the conservatorship.

A probate conservatorship will continue until the death of the disabled individual. If the limited conservator dies, a petition for the appointment of a successor must be filed.  It is important to name a successor conservator, as will be discussed in more detail below.

Who can become a conservator?

Any adult who will act in the best interests of the disabled individual can petition to become the conservator. If there are competing interests for the petition, the court will generally give preference to the person selected by the disabled adult. Additionally, a non-profit organization can generally function as a conservator depending upon the organization’s articles of incorporation. Two or more persons can be appointed as joint conservators. This arrangement can be cumbersome with decision making, but has the benefit of providing an alternative conservator if one should die.

When to seek a conservatorship

There are two general times during which a parent may wish to seek a conservatorship. The first is when their disabled child is approaching or has reached the age of 18 (or 21 depending upon your state’s laws). During this time, early planning can help to protect your child and his or her assets. The second critical time is when you are creating your will or other estate plan. In your will, you should consider who will care for your child in the event you predecease him or her. You can nominate a conservator to be appointed upon your death within your will. Though the nomination is not legally binding, the court will give it great consideration and generally make all attempts to honor it.

At Stern Law, PLLC, we believe all disabled adults should be provided with as much power as possible over their affairs, while still receiving the protection necessary to ensure their success. Conservatorships, which can be neatly tailored to your adult child’s needs, can provide the best option for assisting your disabled child even after they have become an adult. For more information concerning conservatorships, contact Stern Law, PLLC online or call (800)462-5772 today.