Thursday, June 26, 2014

Guardianship vs. Conservatorship: Questions Answered

I have not been able to figure out the "why" behind my inability to find answers regarding obtaining a Conservatorship for my son within the state of California. I have literally spoken with hundreds of people looking for answers, from lay people such as volunteers working in the mental health field, to Educational Advocates who have a sound knowledge of helping one's child, to government workers calling Conservatorships and Probate their area of expertise, to attorneys who specialize in Probate Law. In a previous post (here), I wrote about my process in locating a lawyer to help me obtain a Temporary Guardianship for my son, however, once our Court Order was achieved, the information I received moving forward proved to be inaccurate. I will also clarify that the laws in the two states I dealt with (Texas and California) differ greatly. The information I discuss here is directed to dealing with Guardianships and Conservatorships within California, and outside the state of California.

In an attempt to set the record straight, and to provide you with truly useful information you may be researching about Guardianships and Conservatorships, I invite you to read on. Please understand, the information I have written here is based on my direct experience in attempting to obtain a Guardianship/Conservatorship for my son. (Sidenote: we did obtain a Temporary Guardianship for our son while he was in Texas, which you can read about here. Since he has been returned to CA, I was able to obtain a Temporary Conservatorship of the Person for him on my own- without a lawyer. I am in the process of obtaining a Permanent Conservatorship of the Person for him, which will be used until he can prove that he is able to care for his needs).

First of all, I would like to offer a disclaimer regarding those who have helped me achieve all I have up to this point, in an effort to help my son. Their guidance has been invaluable to me, and in all likelihood, they may have given me information that I was unable to digest and interpret properly at the time. I do not have a law background, so some of these things are completely foreign to me, and take some time to understand.

Secondly, I respect the nature of Conservatorship Law, and the overall desire to not "imprison" or hold someone with a mental impairment against their will, provided they are able to take care of themselves. In my discussion here, I am referring to someone who is unable to provide for their own safety, care, and well being. More specifically, I  am referring to my own family's situation where our son, who turned 18 just two months ago, was determined to be an incapacitated adult, unable to provide for his daily care and needs due a mental health impairment. This determination was due to actions he took on his own, and based on a long history of depressive behavior, and from a Partial Complex Seizure Disorder. This means there are two regions in his brain where the neurons are not firing correctly, and information is not delivered into "long term storage". He doesn't seem to learn from his mistakes, and renegotiate the path, so to speak. (If you would like any more information on this, please read this post, or email me directly).

The definition between a Guardianship and a Conservatorship, as I understand it:
In simple terms, and within the state of California, Guardianships are used for a minor under the age of 18, and Conservatorships are for adults 18 and over. States outside of California use Guardianships beyond the age of 18. (You may want to do some research on the guardianship laws in your state.) Furthermore, in the state of California, there is something called an LPS Conservatorship, which is also referred to as a Mental Health Conservatorship, for people who cannot care for themselves due to a mental health impairment. LPS Conservatorships are normally initiated by a treatment center, and used for a short timeframe, just long enough to reestablish the person to a state of sound mental health. Regular Conservatorships are often used for a broader range of individuals, older people struggling with memory issues, or those unable to take care of their estate, as well as a wide range of other issues of which I am still unfamiliar, and am learning about as we speak. If your child has Autism, or a Spectrum Disorder, you may want to consider a Limited Conservatorship, or a Limited Guardianship in states outside of California. More info here on adults with autism outside the state of CA, or here on adults with disabilities within the state of CA.

Most everyone is very excited for their son or daughter to reach the Age of majority; age 18. But what happens when your child is grossly unprepared? If your child suffers from a brain disorder and (s)he cannot take care of himself, he or she may or may not be content to allow you to care for them. You need to be aware that you may need to put a legal system in place, so it is accepted and recognized that you remain their caregiver upon their reaching adulthood. Basically, upon the age of 18, the state will assume your child is legally competent in making his or her own decisions and taking care of his/her affairs, until it is determined your child is incompetent. Your child will be allowed to make their own decisions about any special services you have arranged for them, and can even make the decision to give up those services. It does not matter that your child does not have the capacity to understand what they are doing. 

Can I obtain a Guardianship/Conservatorship for my child?
#1: Is it reasonable to consider getting a guardianship or conservatorship order for my child?
This is something you should discuss with your child's health care provider, therapist, or psychiatrist. You should know that your child will need to have a treating psychiatrist fill out a form for the court in which they will state the child is incapable of taking care of themselves.

#2: County of Residence
When it became evident we needed to establish a guardianship for our son, we needed to enlist the help of his treating psychiatrist, and file all the court documents. Our son was living in the state of Texas at the time, and so it was necessary to go through the court system in the state and county where he was residing. That was hurdle number one that no one told me, but which it took me months to learn; You need to establish the guardianship or conservatorship within the county where your child is residing.

#3: Do I need to hire a lawyer?
In Texas, the courthouse in the county where my son was living wouldn't even speak to me without having a lawyer on board, so I had to hire a lawyer. Apparently, certain counties have different regulations than other counties. That particular county in Texas required a lawyer, while the nextdoor county does not. In fact, the lawyer I hired told me all along that I "could do this myself," but the courthouse clerks said otherwise. So, I recommend you call your local county courthouse, ask for the Probate Division, and ask if you will be able to file papers on your own, or if they require you work with a lawyer. (They will always push the work with a lawyer angle, just so you know) But if they say, "You are able to file the papers on your own" that means that you can do this without having to hire a lawyer.

#4. What papers do I need to file?
There is a website for that. You can google the courthouse in the county where you reside, and look for a link called "forms"or "common forms". There will be a link to the Probate Division, and from there you can explore the Guardianship division or the Conservatorship division. Let me warn you, there are lots of forms! You can also call the courthouse, and ask for the Probate clerk, and see if there's a packet of forms you can buy. Then, they are all organized for you. This is definitely the simplest way to get the necessary forms.

#5: How do I know if I'm doing this right?
Yep, I hear you. I would never have known what to do if I didn't have witness to all my Texas lawyer did for me, and I was able to follow in her suit. I you cannot afford to hire a lawyer, maybe you can pay to have a Paralegal help you. They are used to filling out all the forms, can have a service provider serve the necessary forms for you, and file the forms at the courthouse. That is another option you have in getting the forms properly filed.

*Disclaimer: The information I share here is intended to be used as an information gathering tool only. I am not a lawyer, nor am I affiliated with a lawyer. I am writing this based on my direct experience with obtaining a Temporary Guardianship of the Person, a Temporary Conservatorship of the Person, and a Permanent Conservatorship of the Person. Probate Laws differ all across the county. If you are in need of additional guidance, I recommend contacting a lawyer who specializes in Probate Law.

Here are some additional links for more information on a few of these topics:
Conservatorship: click here
Guardianship: click here
LPS Conservatorship: click here and here

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