Thursday, July 25, 2024

Special Needs Planning with Conservatorship/Guardianship

Autism and other special needs conditions can impact people throughout their whole lives, and some may need assistance all through adulthood. However, in the eyes of the law, all adults who reach the age of majority become independent and are presumed to have the ability to make their own decisions, including financial decisions. Some adults with special needs may never be capable of responsibly making these decisions, and a legal mechanism is required to get them the assistance they need. That is why many parents and loved ones of adults with special needs may choose to initiate conservatorship/guardianship proceedings.

What is a conservatorship?

Many adults with special needs can make basic decisions for themselves on a day-to-day basis but may struggle with financial tasks or be very vulnerable to exploitation A parent or loved one may then choose to become the adult’s conservator, handling all the financial affairs while leaving other day to day decisions up to the adult with special needs. This is a conservatorship, which is different from personal guardianship, where the guardian makes all decisions for an adult who has been declared legally incompetent.

What is the role of a financial Conservator?

A conservator manages another adult’s finances. They pay bills, make or authorize purchases for the adult, allocate funds for medical procedures or other necessities, and create or maintain financial accounts, and investments.

A conservator must account for the adult’s money, and they may not financially benefit from the adult’s money. For example, a conservator can use the money to buy clothes for the adult, but not for themselves.

Paralegal Nicolas Pol and Attorney Donna Wilson at a Senior Advocate Active Aging Expo.

Isn’t a power of attorney a better option?

Sometimes it is and that is an important conversation to have with an attorney who specializes in Special Needs planning. A power of attorney may require less legal wrangling, but the issue may come down to competency. While there is a presumption of capacity, in the case of power of attorney, one adult (the grantor) grants power over their financial affairs to another adult. The grantor can revoke the power of attorney when they are competent to do so. An adult with special needs may or may not have the legal competency to sign official documents or give their rights over to another person. Again, exploitation and abuse are serious concerns in this area of law, and it is important to protect the rights of the vulnerable special needs individual. In addition, signing a Power of Attorney is not an option if an individual has been declared incapacitated, and then an expensive and often lengthy court hearing is required in order to establish conservatorship and guardianship.

If you have questions about becoming a conservator or guardian, or if you’re currently going through the conservatorship/guardianship process and don’t have an attorney to advise you, contact us at 757-645-3176  to set up a consultation at one of our locations throughout Williamsburg, the Peninsula, and Southside in Virginia.

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