California’s Guardianship & Conservatorship Law

Under California law, a guardianship is a Court proceeding to appoint a manager for a minor person; i.e. under 18 years of age, who has no parent able to provide for his or her food, clothing or shelter, and is therefore legally incompetent, due to age, to make decisions for himself. Such a person is thus in need of a Guardian over his or her Person. If a minor person inherits monies from a parent, or is injured in a personal injury action, such funds create an Estate, for which the minor is legally incapable of managing, and thus require the appointment of a Guardian over his or her Estate. In some cases, depending on a parent’s financial need and a minor’s disabilities, a disabled minor living at home may qualify for SSI and/or Medi-Cal benefits. In order to qualify, the minor must show that he or she is substantially disabled, and be indigent according to Social Security Regulations. Therefore, if a disabled minor later obtains a formal “Estate”, that Estate may need to be sheltered by means of a qualifying court - supervised Special Needs Trust, in order to maintain eligibility for such government benefits.

Regardless of any mental or developmental limitation, all adults have specific legal and civil rights which cannot be legally be modified or denied without specific Court Order. Under California Probate Code § 2350 et seq., a General conservatorship is a Court-ordered appoint of a third person to manage another adult person’s finances or formal “Estate”, and/or personal care. However, medical incapacity is not the same thing as legal incompetency, and the purpose of any such Court-ordered protective relationship is to promote the least restrictive alternatives to the limitation of one’s civil liberties.

A. Conservatorship of the Person: Under California Probate Code § 2351, when a person is either temporarily or permanently unable to provide for one’s own food, clothing, shelter and/or medical care due to physical, mental or developmental limitations, the Court can appoint a third person to make decisions on behalf of the disabled person. Without a Court Order of such appointment, there is no legal authorization to act on behalf of the disabled person.

B. Conservatorship of the Estate: An “Estate” consists of a person’s real and personal property assets, bank and checking accounts, stocks, bonds, inheritances from friends and relatives, and contributions by family under the a Uniform Gift to Minor’s Act. For persons with mental or developmental limitations an Estate can disqualify that person from eligibility for government benefits such as SSI and Medi-Cal. California Probate Code § 2620 provides that where an Estate exists and is under Court supervision, there must be periodic accounting to the Court, roughly each two years, and the posting of a bond, to protect the Estate from losses. These accountings entail recurring accounting and attorneys’ fees and court costs. However, California Probate Code § 2628(b) provides that the Court may to exclude government benefits such as SSI and Medi-Cal and to waive required biannually accountings under California Rules of Court 7.903, so long as the Estate is no greater than $20,000.00. For Estates greater than $20,000.00 a properly drafted Special Needs Trust may be used to shelter such assets from SSI and Medi-Cal consideration, subject to SSI “pay-back” provisions discussed above.

California Welfare & Institutions Code § 4512 defines a "Developmental Disability" as a disability that originates before an individual attains age 18 years, continues, or can be expected to continue, indefinitely, and constitutes a substantial disability for that individual. As defined by the Director of Developmental Services, in consultation with the Superintendent of Public Instruction, this term shall include mental retardation, cerebral palsy, epilepsy, and autism. This term shall also include disabling conditions found to be closely related to mental retardation or to require treatment similar to that required for individuals with mental retardation, but shall not include other handicapping conditions that are solely physical in nature. California Probate Code § 2351.5 establishes a specific type of conservatorship for developmentally disabled adults; i.e. after age 18, called a “Limited Conservatorship”. It describes 7 legal and civil rights or "Powers", some, all or none of which may be taken from the limited conservatee and granted to the limited conservator. This is due to the varying impact which autism, epilepsy, cerebral palsy and mental retardation, and any combination of them, may have on a proposed Limited Conservatee. The Court will therefore only grant those particular powers to the Limited Conservator as are necessary to promote the Limited Conservatee’s civil liberties, on a showing by clear and convincing evidence to the Court, that the Limited Conservatee cannot exercise them for him or herself, and with further requirement that a Regional Center first make a detailed recommendation on each of the powers sought to be obtained by the Limited Conservator. The court will routinely appoint a Probate Volunteer Panel, “PVP” attorney, to represent the proposed limited conservatee. California Probate Code § 2351.5 describes these legal and civil rights or “Powers”, in addition to the right to vote, as follows:

1. The right to establish one’s domicile or place of residence;
2. Access to the confidential records and papers of the limited conservatee;
3. The right to consent or withhold consent to marry;
4. The right of the limited conservatee to contract;
5. The power of the limited conservatee to give or withhold medical consent;
6. The limited conservatee’s right to control his or her own social and sexual contacts and relationships; and,
7. Decisions concerning the education of the limited conservatee.

Regional Centers are required by law to prepare a report and recommendations to the Court as to which powers should or should not be granted to the Limited Conservator pursuant to Probate Code § 2351.5. Regional Centers often will recommend against granting powers 3 & 6 as a means of promoting the limited conservatee’s independence notwithstanding any lack of capacity in the other areas. The court therefore will look to the Court’s appointed PVP attorney regarding any differences in the powers to be granted between the PVP’s and the Regional Center’s recommendations.

* The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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