Conservatorships in Tennessee: a brief primer
October 5, 2010
Conservatorship – families often encounter this word for the first time in moments of great emotional stress. A conservatorship describes the legal process required in order to gain legal control over many aspects of another person’s life. Why would this process be necessary?
In my practice, I’ve worked with many families throughout the conservatorship process, both as an attorney for the petitioner (the person who seeks to be appointed a conservator) and as a guardian ad litem (the person who investigates the situation on behalf of the disabled person who is the subject of the action). The reasons have been many and varied, but the focus is always on the individual who simply can’t care for him- or herself, thus prompting a family member or caregiver to take action to assume legal control over the disabled person’s life.
Disability can happen at any time. We commonly think of an elderly person who becomes too ill or frail to manage her own affairs – if she doesn’t have the proper powers of attorney (for both general and health care purposes), then a conservatorship action must be initiated in order to legally manage both her general and medical decisions. However, disability also happens to younger people. A serious accident or illness can leave anyone – even a young and previously healthy person – disabled.
Another common reason families seek conservatorships is to care for a family member born disabled. When a disabled person reaches the age of 18, his parents can no longer exercise legal control over his affairs. Thus, in order to maintain control of medical care, for instance, the parents of a disabled child 18 years or older must establish a conservatorship for their child’s care.
What does this mean in Tennessee? If you’re caring for a disabled individual and this person hasn’t executed a durable power of attorney for health care, then you must establish a conservatorship in order to have access to the disabled person’s medical records or make any health care decisions for the person. Additionally, a person born with certain disabilities may not have the capacity to execute a power of attorney, thus making a conservatorship the only option for family members or caregivers.
The conservatorship process in Tennessee is set out in Tennessee Code Title 34 : Guardianship. (This section also address guardianships, which apply to persons under the age of 18.) The process requires very specific information be presented to the Court, before an individual’s legal rights will be removed and placed with another person as the conservator.
In a nutshell, the petitioner (the person who seeks to be appointed conservator) must include the following in a petition for conservatorship:
- the basis for the petition – e.g. why the disabled person is unable to care for him/herself
- a doctor’s sworn statement, based upon a physical examination within 90 days of the filing date of the petition, setting out the disabled person’s specific disability(ies) along with a statement that a conservator is recommended for the disabled person’s care
- a complete listing of the disabled person’s property
- a complete listing of the disabled person’s income
- a complete listing of the disabled person’s living expenses
- a proposed property management plan, explaining how the conservator will manage the disabled person’s property and income in order to meet the living expenses obligation
After the petition is filed, the Court will appoint a guardian ad litem, whose duties are set out in Tennessee Code Section 34-1-107. Generally, the Guardian must interview the disabled person, present him or her with the petition, and investigate the facts set forth in the petition. The Guardian then files a report with the Court, expressing the Guardian’s findings and his or her opinion as to whether the conservator should be appointed.
After the conservator is appointed, this person has a continuing obligation to the Court to file accountings on an annual basis. The accounting reports all income and expenses of the disabled person, and should reflect the property management plan approved by the Court during the conservatorship proceeding.
A couple of things to keep in mind:
- In a conservatorship, the Court maintains oversight of all financial matters, for as long as the conservatorship is in place. The purpose is to insure that the disabled person’s income is being used properly – for the disabled person – and is not be used in inappropriate manners.
- In a conservatorship, the Court maintains control over many of the Conservator’s actions. For example, the sale of certain types of property belonging to the disabled person must first be approved by the Court.
In most instances that require a conservatorship, the action could have been avoided if proper planning been done at the right time. Why does this matter?
On a practical level, if your mother becomes disabled without having powers of attorney in place and you’re appointed conservator through a legal action, you now have to account to the Court for every dime you spend on her behalf. For most families I work with, this is not the ideal outcome, as it imposes restrictions on the actions of the person serving as conservator and inserts the Court into a situation that otherwise would not require such keen oversight.
Of course, not every instance can be addressed through the use of powers of attorney – but such a plan often is a simple and inexpensive way to avoid the expense and emotional toll that a conservatorship action can exact.
If you have any questions about conservatorships in Tennessee, including how to put a plan in place that renders a conservatorship action unnecessary, I’m glad to talk with you. Please contact me – 615.656.4044 or firstname.lastname@example.org – to schedule a no-cost, no-obligation consultation.