Omar Bennett
Conservatorship is a legal arrangement intended to protect a person and their assets when they are unable to do so themselves. It is often established for a disabled child when their parent or guardian petitions the court, stating that the child is unable to manage their finances or make appropriate decisions concerning their personal care. While conservatorship offers a higher degree of protection to the conservatee, it also removes their rights to decision-making and autonomy, which can be stigmatizing and abusive. Abuse of a conservatorship of a disabled child can occur when the conservator fails to act in the child's best interests, restricting their access to family, changing their living situation, or institutionalizing them. It can also involve financial abuse, such as mismanaging the child's assets or authorizing unnecessary expenditures. Furthermore, conservatorship does not guarantee protection against physical or sexual abuse, and the conservatee may be vulnerable to scams or mistreatment by others. To prevent abuse, conservatorships should be established only when necessary, with regular reviews and input from the conservatee and their planning team.
| Characteristics | Values |
|---|---|
| Purpose | To protect the financial assets of a disabled child when they are unable to do so themselves |
| Loss of rights | Conservatees lose their right to make choices, resulting in a loss of autonomy and independence |
| Abuse | Conservatees may be taken advantage of, abused, and arrested |
| Stigma | Conservatees may be stigmatized and treated as less than a full human being |
| Lack of protection | Conservatorship does not guarantee protection from financial scams, physical or sexual abuse, or legal issues |
| Decision-making | Conservators should act in concert with the conservatee's wishes and needs, but this is not always the case |
| Alternatives | There are alternatives to conservatorship, such as supported decision-making (SDM), power of attorney, and estate planning |
| Court involvement | The court controls the conservatorship, which can be costly and time-consuming |
| Limited conservatorship | Limited conservatorships are available for developmentally disabled adults to promote self-reliance and independence |
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What You'll Learn
Failure to consider less restrictive alternatives
A conservatorship is a legal arrangement intended to protect a person and their financial assets when they are unable to do so for themselves. However, it is a highly restrictive arrangement that removes a person's right to decision-making and autonomy, and can be stigmatizing and abusive.
When considering a conservatorship for a disabled child, it is important to explore less restrictive alternatives first. This is because conservatorships should only be established when there are no other viable options. The court may ask the petitioner what other alternatives have been considered, depending on the individual's degree of mental capacity and ability.
There are several alternatives to conservatorship that can provide financial assistance to disabled individuals. These alternatives are part of a system known as supported decision-making (SDM). One such alternative is to appoint a representative payee. A representative payee receives United States Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) payments on behalf of the disabled individual and assists with money management. Another alternative is to establish a power of attorney. This allows an Attorney-in-Fact to be appointed to manage and protect the disabled individual's money, property, and business affairs, as well as make financial decisions in their best interest. A special needs trust can also be set up to help manage the disabled individual's finances and avoid the need for a conservator.
In addition to financial considerations, there are other ways to help a disabled individual make decisions. For people with intellectual or developmental disabilities, a person-centered planning team can be formed to look at these considerations. The team can provide training in self-determination, assertiveness, communication, decision-making, use of a facilitator, and self-advocacy. This can help the disabled individual gain skills and take greater control over their life, reducing the need for a conservatorship.
It is important to remember that conservatorships should not be sought for the convenience of a service system or society. They should only be established when there is a specific, identifiable need that cannot otherwise be met through less intrusive means, and there is a serious, ongoing risk to the person's health, well-being, or property.
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Lack of conservatee's input in the process
Conservatorships are a legal arrangement intended to protect a person and their financial assets when they are unable to do so themselves. However, they are highly controversial as they remove the rights of the conservatee to make decisions about their lives, including spending money, health care, where to live, whom to date, and even with whom to have sexual relationships.
The process of establishing a conservatorship often does not adequately consider the input of the conservatee, which can lead to abuse and exploitation. While the court investigator is mandated to interview the proposed conservatee and determine their incapacitation, the investigator's report is just one of several factors the judge considers when deciding whether a conservatorship is required.
The conservatee must appear in court unless medically unable to do so, and they should have the right to speak during their hearing. However, there is no guarantee that the conservatee's preferences for a conservator will be honoured, and they may end up with a professional conservator who is a stranger to them. This conservator has the power to restrict their time with relatives, change their place of residence, or even institutionalize them.
Additionally, conservatorships can be costly, with attorney, court, legal, investigator, and conservator fees, which are paid out of the conservatee's estate. This financial burden can further limit the conservatee's financial autonomy and ability to make choices.
To respect the rights and autonomy of the conservatee, it is crucial to explore less restrictive alternatives to conservatorship, such as supported decision-making (SDM) and estate planning. These alternatives can provide financial assistance and help with decision-making while preserving the individual's independence and dignity.
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Not acting in the best interests of the conservatee
A conservatorship is a legal arrangement intended to protect a person and their financial assets when they are unable to do so for themselves. However, conservatorships can be stigmatizing and abusive, removing a person's right to make choices and limiting their autonomy. This can result in the conservatee being treated as less than a full human being, with fewer rights than a convicted felon.
When considering a conservatorship for a disabled child, it is essential to ensure that the conservator acts in the best interests of the conservatee. Here are some ways in which a conservator may not act in the best interests of the disabled child:
- Not respecting the conservatee's choices and treating them without respect: Conservators must respect the conservatee's choices and treat them with dignity. They should not provide "blanket consent" for matters such as medications, medical treatments, or behavioural interventions without considering the conservatee's preferences and choices.
- Restricting the conservatee's access to their family and community: While a conservator may need to restrict certain aspects of the conservatee's life, they should not unnecessarily limit their access to family, friends, or community experiences that could provide chances for social interactions, relationships, and skill-building.
- Not managing funds in the conservatee's best interests: Conservators are responsible for managing the conservatee's funds to ensure they remain eligible for public benefits, including medical benefits. Mismanaging these funds or authorizing unnecessary expenditures can negatively impact the conservatee's access to essential services.
- Failing to provide adequate training and support: Conservators should receive adequate training to perform their duties effectively. They should also support the conservatee in receiving training to improve their self-determination, assertiveness, communication, and decision-making skills, with the goal of helping the conservatee gain greater independence and control over their life.
- Not acting in a time-limited and reviewed manner: A conservatorship should be time-limited and regularly reviewed to determine if it is still necessary. Court investigators also visit the conservatee regularly to assess the ongoing need for conservatorship. This ensures that the conservatorship is not used as a permanent solution when less restrictive alternatives may become available over time.
- Not considering less restrictive alternatives: Before establishing a conservatorship, it is essential to explore less restrictive alternatives, such as supported decision-making (SDM) or other legal arrangements that can provide financial assistance while preserving the disabled person's autonomy. A conservatorship should only be sought when there is a serious, ongoing risk to the person's health, well-being, or property, and no other alternatives are available.
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Inadequate training for conservators
Conservators are often appointed to make legal, financial, and personal life decisions for the conservatee. They are also responsible for filing an inventory of the conservatee's property and transactions involving the conservatee's assets. This role comes with a significant amount of responsibility and power, which can be misused and abused.
Additionally, inadequate training may result in a conservator being unaware of the boundaries of their role and overstepping their authority. They may make decisions that are not in the best interest of the conservatee or restrict the conservatee's freedom and autonomy unnecessarily. This can lead to emotional and mental abuse, as the conservatee may feel oppressed and demoralized, losing their sense of agency and self-worth.
Moreover, a lack of training can hinder a conservator's ability to recognize and address the unique needs of the disabled child. Each individual under conservatorship has specific requirements that must be understood and met. Without proper training, a conservator may fail to provide the necessary support, care, and accommodations for the child's disability, potentially causing harm and a decline in their quality of life.
Inadequate training can also impact the conservator's ability to protect the conservatee from external threats. Financial scams, physical abuse, and neglect can occur even under conservatorship. A well-trained conservator would be better equipped to identify these dangers and take appropriate action to safeguard the conservatee.
Finally, with inadequate training, conservators may struggle to navigate the legal system effectively. They may be unaware of the rights of the conservatee, the limits of their own powers, and the procedures for dispute resolution. This could lead to prolonged legal battles, additional costs, and further stress for both the conservator and the conservatee, potentially exacerbating any existing issues.
To summarize, inadequate training for conservators can lead to financial mismanagement, abuse of power, neglect, and a lack of protection for the conservatee. It is crucial that conservators receive comprehensive training to ensure they understand their duties, the rights of the conservatee, and the specific needs of the disabled child in their care.
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Lack of conservatorship reviews
A conservatorship for a disabled child is a legal arrangement intended to protect a person and their financial assets when they are unable to do so themselves. However, it is a serious matter that should not be taken lightly, as it removes the conservatee's right to make decisions for themselves.
A conservatorship should be reviewed regularly to ensure it is still necessary and beneficial for the conservatee. A court investigator is supposed to visit the conservatee regularly to determine whether the conservatorship is still required. However, there is a risk that these reviews do not always take place or are not thorough enough. This could lead to a situation where the conservatorship is continued even when it is no longer in the best interests of the conservatee.
The consequences of a lack of proper reviews can be significant. For example, the conservatee may remain under the conservatorship even after they have gained the capacity to manage their own affairs. This would mean that they continue to be treated as less than a full adult, with their rights and autonomy restricted.
In addition, without regular reviews, there is a risk that the conservatorship could be abused or used for the wrong purposes. The conservator may make decisions that are not in the best interests of the conservatee or restrict their access to family and community.
Furthermore, the cost of a conservatorship can be high, with attorney fees, court fees, and investigator fees. If the conservatorship is not regularly reviewed, these costs can accumulate unnecessarily, potentially depleting the conservatee's funds.
To avoid these issues, it is essential to have a system in place that ensures conservatorships are reviewed regularly and thoroughly. This could include involving independent experts or advocates who can assess the situation and determine if the conservatorship is still necessary and beneficial for the conservatee.
In conclusion, a lack of conservatorship reviews can lead to negative consequences for the conservatee, including the continued restriction of their rights and autonomy, potential abuse or misuse of the conservatorship, and unnecessary financial costs. Regular and thorough reviews are essential to ensure that the conservatorship is in the best interests of the disabled child.
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Frequently asked questions
A conservatorship is a legal arrangement intended to protect a person and their financial assets when they are unable to do so for themselves. It is established after a relative, friend, or public official petitions the court for the appointment of a conservator.
Abuse of a conservatorship of a disabled child can include:
- Restricting the conservatee's time with their surviving relatives.
- Changing where the person lives.
- Institutionalizing the person.
- Not acting in concert with the conservatee's wishes and needs.
- Not treating the conservatee with respect.
- Providing "blanket consent" for things like medications or medical treatment.
- Authorizing expenditures from conservatee funds that a service system is obligated to pay.
- Not managing conservatee funds so the conservatee remains eligible for public benefits.
- Not providing the conservatee with chances for social interactions and relationships.
- Not providing the conservatee with opportunities to gain skills to take greater control over their lives.
Alternatives to conservatorship include:
- Representative payee: This person receives United States Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) payments for a person who is not fully capable of managing their own benefits and, in turn, assists with money management.
- Power of attorney: This allows a person, called the Attorney-in-Fact, to be appointed by the principal (who may be either your disabled child or their guardian) to manage and protect your child’s money, property, and business affairs, as well as make financial decisions in their best interest.
- Estate planning: This can reduce tax burdens, protect digital assets, and provide a path for continued medical care.
Conservatorships can be stigmatizing and abusive, removing people's rights to decision-making and autonomy. They can also be costly and time-consuming due to court supervision. Additionally, there is a loss of privacy as the details of a conservatorship hearing become part of a public record.
