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Should You Consider a Guardianship or Conservatorship for Your Loved One With Special Needs?

Many relatives or caretakers of loved ones living with a disability may at some point

need to be able to exert more control over their family member's personal affairs. For

parents of children who have a disability, for instance, that time is often when the

child is turning 18. However, you may face roadblocks if you have not filed

paperwork that allows you to do so. Banks, agencies, and hospitals may push back

on your ability to make decisions that can impact the care of your loved one, which

can be very frustrating.

What are your options in this situation? You may need to seek a conservatorship or


The terms conservatorship and guardianship are often used interchangeably but,

depending on your state, do not necessarily have the same meaning. For example,

in California and Connecticut, guardianships apply to minors, and conservatorships

are for adults. Many states further distinguish these terms as

conservatorship/guardianship of the person (e.g., the right to decide on someone’s

behalf about personal and medical issues) or conservatorship/guardianship of the estate (e.g., the right to handle someone’s financial affairs). The level of decision-

making and authority a person may be given over another is decided on a case-by-

case basis.

Both conservatorship and guardianship require a court's approval. This means you

must go through a legal process to acquire these powers over someone else's life. A

young person living with a disability may already be unable to make their own

decisions but is about to reach adulthood, and parents who need to be able to

continue care for their child will pursue guardianship or conservatorship.

Alternatively, a person may become disabled later in life because of an unexpected

injury or illness and a family member may need to obtain a guardianship in order to

be able to step in and manage their affairs.

Other Options

Conservatorship or guardianship can be expensive. Often, there may be other

options available without the expense of going to court. If you can plan ahead before

a person becomes unable to handle their affairs, this can make a huge difference in everyone's life and potentially make a conservatorship or guardianship unnecessary.

For example, your loved one may be able to sign a power of attorney enabling you

to make certain decisions on their behalf. They also may be able to sign a health

care proxy that allows you to speak with medical professionals on their behalf.

However, if this is not possible, you may have to seek court intervention. Before you

go to court, you should understand the significance of the responsibilities you will be

given if a judge approves your request. You must be financially responsible, familiar

with the intimate details of the incapacitated person's needs, and ready to be

accountable and responsive to the court.

Involving the Court

Courts usually prefer to appoint a close family member, such as a parent, spouse or

domestic partner, or adult child, to serve as a conservator or guardian. However,

above all, the court must feel confident that the person it appoints has the best

interests of the incapacitated person at heart. Because of this, a court must

scrutinize the guardianship or conservatorship request. In addition, if the person over

whom you seek financial control has assets, you may be required to obtain a bond.

The court may appoint an attorney to safeguard the interests of your loved one. A

court evaluator may look into the application as a whole to determine if the court

needs to be made aware of any issues.

If guardianship or conservatorship is approved, there may be continuing reporting

requirements to the court that can involve the preparation of accountings and other

reports. Thus, the person who proposes to take on this role must be able to handle these responsibilities in a timely manner. Being a guardian or conservator is a long-

term commitment. It lasts for the rest of an individual's life unless the court appoints someone else to take your place.

If you believe it may be necessary to pursue this option, you should start the process

sooner rather than later. If you do not know where to start, speaking with any

advocates or social workers who are already involved in your loved one's life is a

great way to begin, as well as connecting with a special needs attorney.

Moors & Cabot, Inc - Johnson Cotroneo Group

999 Vanderbilt Beach Rd. Suite 102

Naples FL, 34108

239-449-7982, 239-449-7992

Investment Advisory Services provided by Johnson Cotroneo Group are through Moors and Cabot, Inc., an SEC-registered investment advisor.

Brokerage services and investment products offered through affiliated broker-dealer Moors and Cabot, Inc., Member FINRA, SIPC

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