AB 1663 and People With I/DD & Their Families
We know that parents and other family members are concerned about how AB 1663 will impact their lives.
First, this bill is not saying that all conservatorships are bad, or that all conservatorships should end. This bill is trying to change the system where, too often, families are told that they must get their child conserved, and that it’s the only choice.
Second, this bill doesn’t require people to use supported decision-making (SDM). It doesn’t require people to try SDM or other things before getting a conservatorship. It recognizes that SDM is one of many ways that people can strengthen their capacity and direct their own lives. It includes SDM as something that people should consider before appointing a conservator. The bill is just giving families more options to protect and support their loved ones.
Too often, families are told that they must get their child conserved, and that it’s the only choice.
What AB 1663 does NOT do
- It does NOT end existing conservatorships
- It does NOT prevent future conservatorships
- It does NOT take away the power of conservators to make choices for their conservatee
- It does NOT add new steps in the conservatorship process
- It does NOT require anyone to use supported decision-making
- It does NOT criticize anyone who is currently a conservator or in a conservatorship
What AB 1663 DOES do
- It follows current law that requires courts to impose conservatorships only when it is the least restrictive option
- It recognizes supported decision-making (SDM) in California law as an option for families who decide they want something different than conservatorship to protect their loved one without involving the courts
- It ensures that people with disabilities and their families understand the range of options beyond conservatorship
- It provides opportunities for people with disabilities to gain new skills by participating in decision-making when they can, even if they are conserved
- It allows people in conservatorships to more easily exit if there is agreement with their conservator
- It requires a judge to consider SDM and alternatives before someone is conserved
- It requires courts to prefer family members over strangers when appointing conservators
AB 1663 recognizes Supported Decision-Making (SDM) in California law as an option for families
Important Considerations for Families
Does AB 1663 change existing probate conservatorships?
No. The bill does not change existing probate conservatorships.
The bill does require that conservators involve and inform their conservatees, to the greatest extent possible, in decisions they have made and to respect and consider the wishes of a person under conservatorship. For many people already in probate conservatorships, the bill will not make big changes. That’s because many families and conservators are already doing the kinds of things the bill requires. For example, some conservators include the conservatee in decisions, and inform them about the choices being made. Some conservators are already working to strengthen the abilities and capacity of the person, even within the conservatorship. They are already giving the person under conservatorship access to information about who to contact if there is a problem, and telling them about their rights. This bill will require that conservators do those things, but for some conservators, that will not be a change.
Does AB 1663 add more work for a parent who is the conservator?
Current law already requires conservators to do a number of things, including filing a petition that includes certain information in order to start the conservatorship process and engaging annually with the court investigator after conservatorships have been established. The bill does not add any new steps, or new paperwork. It makes sure that, within the process of petitioning for a conservatorship, the petitioner has considered alternatives to conservatorship and shares the information about what they’ve considered, or tried, with the court. Similarly, the bill makes sure the voice and experience of the person under conservatorship is part of the investigator’s review – it’s not a new step, but it’s making sure they are part of this process. The bill tries to make sure that within the process that already exists, families are aware of alternatives, and that the perspective of the person with a disability is included.
Doesn’t a conservatorship give a parent control over their child’s decisions?
Actually, conservatorship gives the court control over the disabled adult’s decisions. The parents are the court-appointed conservators and must ask permission from the court about major decisions, such as out-of-country travel and moving to a different state. It’s important to know that the court can change the conservator at any time for any reason. There are many cases of courts removing parents as conservators because of a contentious divorce or even significant disagreements with the regional center.
Doesn’t conservatorship protect my adult child if they have to interact with the police or if they make a bad financial decision?
No. There are no legal protections as far as police interaction for people who are conserved. In addition, a conservatorship is not always enough to get you out of a financial or legal contract, especially if you don’t have the financial power assigned to you. People with and without disabilities make bad decisions all the time. Someday, you will not be around to make your child’s decisions for them. It is better for your adult child that you build support systems together now so that they’re prepared to use them to help make choices without you later.
How is supported decision-making different for my adult child?
Unfortunately, parents come under tremendous pressure to conserve their child with a disability from respected people in their lives, including other parents. Parents are panicked as their child approaches the age of 18 if they haven’t already consulted a lawyer and started the conservatorship paperwork.
But there’s a better way. One where your choice not to conserve is respected and your adult child is both empowered and protected from the court. In fact, you have the ability to protect your child even more – with support and without the court. It’s called supported decision-making.
Supported decision-making (SDM) enables people with disabilities to choose supporters to help them make choices to the maximum of their unique abilities. A person using SDM chooses trusted advisors to serve as supporters. Supporters may be family members, friends, staff, or professionals. The supporters agree to help the person with a disability understand, consider, and communicate decisions. Supporters also give the person with a disability the ability to make their own informed decisions. Individualized tools, services and accommodations are key to empowering the person to make these choices, especially for those who use augmentative and alternative communication (AAC).
SDM can be very informal, though it can also be written into formal documents when necessary. It’s also designed to change, just like people’s lives and circles of support change.
My child has significant support needs. Can they still benefit from supported decision-making?
Yes! Some people with disabilities may need a maximum amount of support in their decision-making. This might include explaining decisions in very simple language or with pictures or stories. It also might include adding Powers of Attorney for health care and finances and putting other protections in place. The benefits of SDM, even for someone with high support needs, is that the person retains all of their rights, is encouraged to grow as they get older, and it keeps the Court out of their life.
My child doesn’t speak to communicate. Can they still use SDM?
Absolutely, yes! Whether someone uses AAC, sign language, typing, or behavior to communicate, they are always communicating and therefore they can make choices.
For example, Rosa is nonspeaking and currently receiving medical care at home. She turns her head away whenever her day shift nurse comes into her room, but she smiles and moves around more when her night shift nurse comes in. Rosa is expressing a clear preference for her night shift nurse. Her circle of support might offer the night shift nurse more hours, and dismiss the day shift nurse.
What are my legal protections as a parent if my child uses SDM?
AB 1663 would make sure that SDM is in California law as an alternative to conservatorship. This would result in more SDM-competent schools, regional centers, and doctor’s offices.
Right now, you can write SDM into existing legal documents like your child’s IPP plan. You can also use existing forms, like a HIPAA disclosure, an educational disclosure, or a Supported Decision-Making Agreement (SDMA) to protect your child’s right to support in different settings.
How does AB 1663 help if my regional center tries to conserve my adult child?
The bill recognizes there is a conflict of interest that exists when a regional center is someone’s conservator and is also responsible for reviewing and approving all funding decision for the person. The bill prohibits a regional center from performing both functions. But there are two options here. First, the bill gives DDS the option to act as the person’s conservator without delegating the responsibility back to the regional center (current law requires DDS to delegate these functions). Second, if DDS chooses to delegate the responsibility back to the regional center, it can. These functions just can’t be delegated to the same regional center that serves the person.
For more information for parents of children with intellectual or developmental disabilities, check out Disability Voices United‘s With Support and Without the Court: Supported Decision-Making Handbook for Adults with Developmental Disabilities in California >>