A guardianship or conservatorship grants a designated adult legal power to make decisions for a person who is unable to make decisions himself or herself. In the case of a minor child, generally guardianship or conservatorship will terminate when the child turns 18 or, in some states, upon marriage if the child marries before age 18.
Types of guardianship and conservatorship
Different types of guardianship or conservatorship grant the guardian or conservator different powers.
- Natural Guardianship A "natural guardian" generally refers to a parent. In most cases, a natural guardian has custodial rights but only limited rights to control the assets of a child.
- General Conservatorship or Guardianship of the Person and Estate This type of conservatorship or guardianship typically provides full decision-making powers—with respect to finances, medical decisions, living arrangements, etc.—for a person deemed to be unable to make decisions or perform necessary tasks on his or her own.
- Limited Conservatorship or Guardianship Powers of a conservator or guardian can often be limited to reflect the needs of the individual who is incapacitated or disabled, and laws in a number of states specifically provide for the appointment of a limited conservator or guardian for certain individuals with developmental disabilities.** A limited conservator or guardian is appropriate for individuals whose conditions impair their ability to care for themselves or their property, but not to the extent that a general conservatorship or full guardianship is required. This arrangement encourages maximum self-reliance and independence for the adult with developmental disabilities by giving the conservator or guardian power only over activities that the individual is unable to handle.
- Guardian of the Estate, Guardian of the Property, or Conservator These terms usually refer to someone appointed to manage assets of and make financial decisions for the person deemed incapable. When your child turns 18, he or she may need a guardian or conservator to manage some aspects of his or her life.
Alternatives to Guardianship and Conservatorship
Avenues other than guardianship and conservatorship relationships may exist that can help an individual feel more independent and minimize legal involvement. For example, if your dependent only needs assistance managing his money, he may be eligible for help through the Supplemental Security Income program (SSI) offered by the Federal government. If appropriate, an SSI Representative Payee can be designated to receive and disburse SSI money on behalf of your dependent, a function that might otherwise be performed by a court-appointed guardian. The Representative Payee must make an annual accounting to the Social Security Administration on how funds are spent.
Another option is Durable Power of Attorney, whereby the individual who has a disability allows certain decisions, such as medical, property, or living situation, to be made by another person, on his behalf, without court intervention. A Special Needs Trust can also be effectively used by a trustee to manage the finances and personal effects of a person who has a disability, rather than a court-appointed general guardianship or conservatorship.
Letter of Intent
A letter of intent is an important document caregivers should have. Although not legally binding, this document provides direction for the person or persons who will care for your dependent with special needs. The letter should detail medical history, daily care needs, housing and services, as well as your specific wishes and expectations as they relate to your dependent's future. It is a working document for the future caregiver to follow.
Share the letter of intent with the person(s) who will be caring for your dependent. Discuss it. If you aren't comfortable that they share your views or that they are willing to respect them, you may want to reconsider your choice. A letter of intent is often the most important part of the plan.
It is important to take the time today to provide for your loved ones tomorrow. Do what you can to make sure that the ongoing care and needs of your dependent will be addressed no matter when you die.
*Use of terms such as guardian or conservator and their meanings vary according to state. You should seek the advice of your own legal counsel to determine whether these kinds of mechanisms are available in your state and applicable to your own circumstances.
** Developmental disabilities generally are severe, chronic disabilities attributable to mental and/or physical impairment which manifest before age 22 and are likely to continue indefinitely. They result in substantial limitations in three or more areas: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, and economic self-sufficiency, as well as the continuous need for individually planned and coordinated services.
Special Needs Planning
The MetLife Center for Special Needs PlanningSM can help you provide lifetime care and quality of life for your child or dependent with special needsLearn more about special needs planning