SOUTHERN CALIFORNIA LAW FIRM

Waterson Huth & Associates

FREQUENTLY ASKED QUESTIONS

What is a Conservatorship?

In the State of California, a Conservatorship is the appointment of a person (a “Conservator”) by a judge to manage the financial affairs and/or daily life decisions of another person (18 years and older) due to that person’s inability to care for themself because of an intellectual delay, cognitive impairment, brain injury, dementia, or mental illness. A person under conservatorship is a “Conservatee.”

What is a Guardianship?

In the State of California, a court may establish a Guardianship whereby a family member or a family friend is appointed as guardian of a minor (a child under 18 years of age). The guardian may be involved in medical, educational, and other decision-making issues when the child’s legal parents are unable to do so. 

Are there different types of Conservatorships?

There are three types of Conservatorships in the State of California:

• General Conservatorship: Sought for individuals 18 years of age or older who are no longer able to manage his or her own financial and/or personal affairs. 
• Limited Conservatorship: Specifically created for people overseeing the welfare of adults with developmental disabilities. The Conservator is granted any of seven enumerated powers, dependent on the strengths and abilities of the Conservatee. These powers include:

1. The power to determine where the conservatee will live.
2. The power to give consent or withhold consent to medical treatment. 
3. The power to contract for the conservatee. 
4. The power to consent or withhold consent to marriage or to enter into a domestic partnership. 
5. The power to access confidential records and documents.
6. The power to make educational decisions. 
7. The power to control the Conservatee’s social and sexual contacts and relationships

• Lanterman-Petris-Short (LPS) Conservatorship: Designed for persons who are unable to care for themselves due to a mental illness. Initial LPS conservatorship petitions can only be filed by the Public Guardian’s Office and the appointment must be renewed annually.

What is a Limited Conservatorship?

Limited Conservatorships were specifically created to allow the probate court to appoint a conservator to assist individuals with developmental disabilities who are unable to make decisions on their own. The Conservator is granted any of the seven enumerated powers shown above dependent on the strengths and abilities of the conservatee.

What are the duties of a Ltd. Conservator?

Pursuant to the California Probate Code section 1801(d): “A limited conservatorship may be utilized only as necessary to promote and protect the well-being of the individual, shall be designed to encourage the development of maximum self-reliance and independence of the individual, and shall be ordered only to the extent necessitated by the individual’s proven mental and adaptive limitations.” It is the duty of the conservator to ensure that the limited conservatee receives services and supports that allows the limited conservatee to live an independent, productive and normal life.  

Do I need to obtain a Ltd. Conservatorship now that my disabled child has turned 18?

When your child becomes an adult, he or she is presumed to be competent to make his or her own decisions. Not every child with a disability requires the protections (and restrictions) of a conservatorship. You should confer with your child’s “support team” (i.e., regional center, school, doctors, etc.) to consider whether your child has the capacity to make informed decisions.   

Are there alternatives to Conservatorships?

If your child has the ability to appreciate the consequences of his or her actions, he or she may be competent to execute a Durable Power of Attorney or an Advance Health Care Directive in which he or she appoints a responsible adult to make decisions for him or her. Often, these documents along with your adult child’s participation in the IPP/IEP process will allow him or her to live as independently as possible with the assistance of others without the necessity of a conservatorship.  

My child is still in school and has an IEP, what do I need to know?

The Individualized Education Program (IEP) is a written document that prescribes everything a child with a disability needs to receive a Free and Appropriate Public Education. You know your child the best and you are an equal member of the IEP team, so it is important for you to be involved in the development of the IEP.

What is the IDEA?

The Individuals with Disabilities Education Act is key to ensuring that your child makes progress at school.

What is the difference between an IEP and a 504 Plan for my child? 

An IEP is developed under the Individuals with Disabilities Education Act (IDEA). The purpose is to ensure that all children with disabilities receive a Free and Appropriate Public Education (FAPE).

A 504 Plan is developed under Section 504 of the Rehabilitation Act of 1973. The purpose is to prohibit discrimination on the basis of disability.

The IEP has stricter legal requirements and is generally more comprehensive than a 504 Plan. Deciding which is better will depend on your child’s unique needs and the type of support needed. Call our office for a free consult to discuss which option may be the best for your child.

What if I disagree with the school district’s IEP recommendations? 

A range of options are available, including a due process hearing or a compliance complaint with the State Department of Education. You may also try to resolve the issue through an informal meeting, mediation, a lawsuit, or a complaint with the Office of Civil Rights. Call our office for a free consult to discuss what options may be the best for you.

How can I protect my child’s public benefits if he/she is to receive an inheritance?

If your child is a recipient of public benefits (SSI and/or Medi-Cal), you may be able to transfer the gift into a First Party Special Needs Trust in order to preserve benefits. Without such a transfer, the benefits may be terminated or reduced. Give us a call to discuss your child’s options to ensure the best course of action. 

What is a Special Needs Trust?

Special Needs Trusts come into play in a multitude of situations, including parents planning for a disabled child’s future, a disabled individual coming into an inheritance or winning or settling a personal injury claim, or one spouse planning for a disabled spouse. A Special Needs Trust fulfills two primary functions:

• Manage funds for someone who may not be able to do so himself/herself due to a disability.
• Preserve the beneficiary’s eligibility for public benefits, whether that be Medicaid (MediCal), Supplemental Security Income (SSI), public housing, or any other program. 

What is the difference between a First Party and a Third Party Special Needs Trust?

A Third Party Special Needs Trust is one which is established with assets belonging to anyone EXCEPT the beneficiary. 

A First Party Special Needs Trust is one in which the beneficiary, or his/her parent, or conservator or the court establishes the trust with the beneficiary’s assets.  

There are differences between these trusts as to how they can be established as well as how they should be administered. You should always seek out counsel from an experienced special needs lawyer for specific information about your needs.   

Do I need an Estate Plan?

Estate planning is the process of anticipating and arranging, during a person's life, for the management and disposal of that person's estate during the person's life, in the event the person becomes incapacitated, and after death. The existence of a well-drafted and fully funded estate plan will allow an ease in transition when you are unable to manage your affairs due to death or illness. 

What are some essential estate planning documents?

• Last Will and Testament
• Revocable Living Trust
• Beneficiary Designations
• Durable Power of Attorney
• Advance Healthcare Directive
• Letter of Intent

What is a Trust?

A trust is a form of ownership of property, whether real estate or investments, where one person, the Trustee, manages such property for the benefit of someone else, the Beneficiary. The Trustee must follow the instructions laid out in the trust agreement as to how to spend the trust funds on the Beneficiary’s behalf, whether and when to distribute the trust income and principal. In general, trusts fall into two main categories: 

• Self-settled trusts that the Beneficiary creates for himself with his own money.
• Third-party trusts that one person creates and funds for the benefit of someone else.

What is an ABLE Account, and how can it benefit my child?

Individuals with a disability that occurred before age 26 are eligible to open a CalABLE account. If you meet this age of onset requirement and receive benefits under SSI (Supplemental Security Income) and/or SSDI (Social Security Disability Insurance), you are automatically eligible to open a CalABLE account.

• Earnings in your CalABLE account are 100% federal and California state tax-free. Withdrawals to pay for disability-related expenses are also federal and California state tax-free. 
• The assets in your CalABLE account, up to $100,000, will not affect your ability to receive state and federal benefits such as SSI (Supplemental Security Income) and Medicaid.

For more information go to: www.calable.ca.gov 

Should public benefit programs be supplemented with other resources for individuals with special needs? 

Public benefit programs are often inadequate and may need to be supplemented with other resources, such as a Special Needs Trust. Both public benefits programs and individual circumstances change over time. Also, relying on one’s other children to take care of their special needs sibling places an undue burden on them and can strain relations between them. It also makes it unclear whether inherited money belongs to the healthy child to spend as he/she pleases, or whether he/she must set it aside for his/her disabled sibling.