Conserve to Protect and Enable

Posted on March 15, 2024

After an acquired brain injury, an individual who could manage their own life before the injury might need the help of a court-appointed conservator. A General Conservatorship is a legal arrangement to protect the individual, while a Financial Conservatorship gives the purse-strings to a qualified, court-appointed relative or professional financial manager.  Usually, one family member takes responsibility as Conservator of the Person and the Estate.  A Guardian is a Conservator for minors. The Courts in California take responsibility for the assignment of Conservators.  

The rights of people with disabilities have been litigated for many decades.  The Olmstead case, decided by the Supreme Court in 1999, established that two women, living in a Georgia State-run institution for “mental illness” and “developmental disabilities,” had the right to reside in the “least restrictive environment.”  This meant living in a community for these two women. The Olmstead decision opened opportunities for people with disabilities.  The Americans with Disabilities Act became law in 1990 and was amended by the ADA Amendments Act passed in 2008.  The rights of people with disabilities to speak up and gain accommodations include a treasure trove of legal cases.

Conservatorships are sometimes the best alternative for a person of diminished mental capacity.  The safety of the Conservatee and the possibility of harm to others (what if they put themselves into dangerous situations? or spend all their money recklessly? or drive a car and endanger others?) These are cardinal reasons why Conservatorships are needed.  Neuropsychiatric testing is often helpful in determining the ability to care for oneself.  Interviews with the potential Conservatee, investigation into living situations, and a detailed review of finances are all required.  The Court will assign a family member or professional.  This person must understand the rules of conservatorship and must hold a bond for the funds held by the Financial Conservator.  A Conservator must stay up to date with the court-ordered rules, take a course to qualify, and be approved by a judge.

In California, the Conservator of the Person or General Conservator has the right to:

-Determine the residence of the Conservatee.

-Have access to all confidential and pertinent information about the Conservatee.

-Withhold or give consent for marriage.

-Enter into business or financial contracts on behalf of the Conservatee.  (The Conservatee does not have the right to conduct business or sign contracts.)

-Give or withhold medical consent.  

-Limit social contacts for the safety of the Conservatee. 

-Make decisions about education.

Financial Conservatorship:  A strong safety net is usually required as loved ones watch people with acquired brain injuries work toward self-reliance and independence.  The safety nets which are effective, such as a therapeutic environment, are expensive. Careful planning and distribution of limited resources becomes the responsibility of a Financial Conservator.  Accurate budgets must be submitted and approved by the court every two years. The Conservatee should be allowed to live in the least restrictive environment which is safe and affordable; it must be an environment which meets the Conservatee’s needs for safety as well as personal care.