The Intersection of Guardianship, Disabilities, and Conservatorship

We explore the considerations regarding conservatorship for individuals with autism, dementia, and intellectual disabilities and where guardianship might be a better solution.

In the world of legal guardianships, not all cases are created equal. Factors such as age, the type of disability, and the severity of underlying medical conditions influence the extent to which a conservator is granted control over the disabled individual’s life. And in many cases, these fine details determine the disabled individual’s autonomy and long-term well-being.

Let’s examine some factors determining how legal bodies determine the extent of a conservatorship.

Factors that determine the extent of conservatorship

Conservatorships are shaped by various factors that consider the disabled individual's unique circumstances. These play a crucial role in determining the level of power and decision-making capacity retained by the disabled person, and they help tailor the conservatorship to meet their specific needs:

Nature and Severity of the Disability

Some disabilities, such as certain forms of autism on the spectrum, may be mild and only require support in specific areas. In contrast, someone who is severely mentally challenged may require comprehensive oversight.

Decision-Making Capacity

A conservatorship aims to balance preserving their autonomy where possible and providing support in areas where they may lack capacity. However, in specific scenarios where the disabled individual cannot perform basic decision-making, such as when in a coma, more extensive rights are endowed.

Individual Needs and Preferences

Any conservatorship should be customized to address an individual’s needs, ensuring a tailored solution that respects their dignity and values. This can be achieved by working on a clear budget with the individual’s family or the state and providing regular updates and reports for transparency.

Progression of the Disability

For conditions that may progress over time, such as dementia, the conservatorship may evolve to accommodate the changing needs of the disabled person. This ensures that their well-being is consistently safeguarded as their condition develops.

Autonomy and Dignity

A fundamental consideration is preserving the individual's autonomy and dignity. The extent of the conservatorship should always aim to empower the disabled person and allow them to be as self-reliant as their circumstances permit.

Unfortunately, this is not always the case, and disabled individuals under conservatorships are often stripped of more rights and autonomy than necessary for their well-being.

Court or Legal Oversight

The court's involvement or legal oversight plays a significant role in determining the extent of the conservatorship. Decisions made by the court can shape the conservatorship arrangement, ensuring it adheres to legal standards and best serves the individual's interests.

Advocating for Accountable Conservatorship Policy

By carefully evaluating these factors, conservatorships can be structured as least restrictive as possible, ensuring that the disabled person's rights and well-being are upheld while providing the necessary support in areas where they may require assistance.

Sadly, countless US states don’t require adequate legal scrutiny or accountability regarding conservators. At Disabled Lives Matter, we are committed to encouraging stricter accountability codes by bringing this issue to light. Check out our upcoming documentary, [insert anime of documentary], to learn more!

Conservatorships by Disability

Now that we’ve explored the different factors that impact a conservator's decision-making authority let’s look at how this could look in practice for different disabilities and the specific risk factors that lead to overly restrictive conservatorship.

Conservatorships for Autism

A conservatorship can support individuals with Autism Spectrum Disorder (ASD) when their decision-making and self-care capabilities are significantly impacted. ASD varies widely in its impact, and not all individuals require conservatorships.

For those who do, the choice between a general or limited conservatorship depends on the extent of their limitations:

• General conservatorships are suitable for those with severe impairments, often due to ageing, illness or injury. This is best suited for individuals who cannot manage most aspects of their daily life.

• Limited conservatorships are more appropriate for individuals who need some adult care and supervision but seek to maintain autonomy as much as possible. In these conservatorships, conservators must follow strict court orders.

Conservatorships for Dementia

Guardianships and conservatorships become necessary in cases involving dementia when an individual's cognitive abilities are significantly impaired, making them vulnerable to exploitation and harm.

Mitigating fraud risk & wellbeing

For example, a person with dementia might fall prey to fraudulent phone calls seeking money due to their diminished judgment. Additionally, suppose dementia has progressed to the point where the individual cannot manage essential tasks like driving, paying bills, or taking medications. In that case, they may make unsafe decisions regarding their health or property, jeopardizing their well-being and assets.

Limited Conservatorships for Intellectual Disabilities

A limited conservatorship is a specialized legal arrangement designed for individuals with developmental disabilities, distinct from the broader concept of general conservatorships. It specifically addresses the needs of those with particular self-care abilities but requires support in other aspects of life, aiming to promote and safeguard their overall well-being.

When is a limited conservatorship a better solution?

Family members, such as parents or siblings, typically petition for a limited conservatorship to retain decision-making authority over healthcare, living arrangements, and education for their developmentally disabled adult child. The ultimate objective is to foster self-reliance and independence, with the limited conservatee retaining most of their legal and civil rights.

In some cases, guardianship may be a more ethical solution.

Guardianship vs Conservatorship?

When determining whether a guardianship or conservatorship is the best course of action for a disabled individual, it’s all about the level of responsibility and decision-making needed to ensure well-being.

Guardianships

Guardianships may be appropriate for those who require personal care, such as minors or individuals needing living accommodations, medical decisions, or educational support. Guardians can be nominated in will documents or appointed through court proceedings.

Conservatorships

On the other hand, while conservators are also responsible for general well-being and care, conservatorships are primarily concerned with financial responsibilities. They may benefit individuals who require assistance managing their finances on a larger scale, including handling accounts, investments, property transactions, bill payments, tax filings, and financial planning.

While guardians may handle day-to-day finances associated with basic needs such as food, prescriptions, and clothing, conservators are appointed when estates and larger assets are at play. As a result, conservatorships require much more legal scrutiny and oversight to ensure the safeguarding of every disabled conservatee’s assets.

Demanding Accountability Through Awareness

Despite the positive potential of these legal relationships, many disabled individuals often find themselves with more restrictions than necessary, severely deteriorating their quality of life and financial health.

At Disabled Lives Matter, a massive part of our mission is to spread the word about the potential harms of conservatorships and to help others with disabled family and friends fight for a just decision-making framework for their lives.

Visit our shop page for exclusive Disabled Liver Matter merch. Every purchase goes toward helping us recover our current client’s stolen retirement funds!

-The Disabled Lives Matter Team