Conservatorships & Guardianships
Sometimes, it may be necessary to take legal action in order to protect or care for disabled loved ones. The probate/family lawyers at Martin Heller Potempa & Sheppard have assisted numerous Nashville area residents with the process of seeking a guardianship or a conservatorship. Our experienced legal professionals will educate you about your options and guide you through the difficult decisions that need to be made. We represent individuals throughout Davidson and Williamson Counties, including Belle Meade, Green Hills, and Brentwood.Conservatorship Proceedings
A conservator is a court-appointed individual or entity that is responsible for making decisions that are in the best interest of a person with a disability. The Conservator can be responsible for handling medical decisions, financial decisions or both. The state of Tennessee has well-established standards for creating a conservatorship. It is imperative to follow these rules in order to ensure that a conservatorship is set up properly. Under Tennessee law, a person with a disability is someone who needs assistance or protection because of a mental or physical illness, a developmental disability, or another type of incapacity.
Court proceedings must be initiated in order to establish a conservatorship. Among other things, the court must consider whether your loved one possesses the capacity to make decisions that are in his/her own best interest or if a disability is preventing him/her from being able to make such decisions. If the court finds the latter to be true, a Conservator or Co-Conservators may be appointed to make decisions for the person suffering from a disability.
If a disabled individual has designated a specific Healthcare Agent in writing (such as in a Living Will or Power of Attorney), the court will consider their appointment as Conservator first. If there is not a designated Agent, the role is generally filled by a family member, such as a spouse or adult child. If there is not an appropriate family member available or willing to serve or if there is a dispute among family members about who will serve, then the court may consider an unrelated person. The person may be a private attorney, a public Guardian or a corporate entity. A court must always consider the manifest best interest of the person with the disability when determining who should be appointed as conservator.
After determining who should be appointed as conservator, the court will then inform the conservator as to their powers and rights, including providing informed consent for medical treatment, executing legal documents, applying for benefits, paying bills, and making end of life decisions. It is important to fully understand a court’s order with regard to the authority granted, so that no rights are inadvertently taken away from the individual with the disability. Generally, the Court will establish a Conservatorship that is as least restrictive as possible.
A conservatorship may be modified or terminated if the circumstances of the disabled person or court appointed Conservator changes. For example, a court may determine that the individual no longer has a disability. There may also be situations in which a conservator failed to perform his or her duties or act in the best interests of the disabled individual. Any interested person, including the individual with the disability, can petition the court to have a conservatorship terminated or modified. The Court will hold a trial, accept evidence and hear testimony from all interested persons in cases that allege a conservator has abused his/her authority. The Court will consider the best interest of the disabled person in order to determine if a conservatorship should be modified or terminated.Establishing a Guardianship in Tennessee
A guardianship may be required in order to provide care and protection for a minor child. A guardianship may also be required to protect the assets of a minor child that has inherited property through Estate Administration or other litigation. A guardian may be necessary in instances when a child’s parent or parents have terminated their parental rights or the child’s parents have passed away leaving no custodian. Any person who believes a guardianship is necessary may petition a Tennessee court for the appointment of a guardian. The court will consider the child’s best interests in determining who should be appointed. A guardian can be either an individual or an entity appointed to provide supervision and care.
It is important to include all required information in a petition for guardianship, since there are a number of requirements under Tennessee law. To begin, a petition must state certain details about the minor as well as the individual making the petition. It must also include information about the minor’s relatives, an explanation for seeking the guardianship, and detailed financial information. The probate/family attorneys at Martin Heller Potempa & Sheppard can assist in including all the important information in a guardianship petition.Annual Accountings/Status Reports
Typically, a court appointed Guardian or Conservator will be required to file annual documents with the Court to ensure that the protected person is being taken care of medically and financially. The annual requirements can be time consuming and confusing. If you need assistance with completing an Annual Accounting/Status Report, call one of our experienced attorneys at Martin Heller Potempa & Sheppard.
If you need assistance establishing a conservatorship or guardianship in Franklin/Williamson County or the surrounding communities, you can consult the experienced conservatorship/guardianship attorneys at Martin Heller Potempa & Sheppard. Our legal team can help you understand the necessary steps in arranging future care for your loved one. To speak with one of our attorneys, contact us online or call (615) 800-7096.