Posted by Martin Heller Potempa & Sheppard, PLLC on March 4, 2021
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If you have a loved one who is suffering from a physical or mental disability, it might become necessary for you to step in to manage their financial affairs and consent to their medical treatment. If you find yourself in this spot, hopefully your loved one executed a Power of Attorney that appoints you, or someone else who is trustworthy, to act as the disabled person’s fiduciary. If no such document exists, or if the nominated Attorney in Fact is unwilling or unable to act, then a conservatorship may be the only way to protect your loved one’s interests.
A Petition for Letters of Conservatorship initiates a legal proceeding that may lead to specific rights being removed from the person with a disability and those same rights being vested in an appointed conservator. The conservatorship can be over personal/medical matters, financial matter, or both.
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. Conservatorships can also be used for those who have been temporarily disabled by an illness or an accident — for example, someone who has a traumatic brain injury following a car wreck.
When the Court is considering whether or not to appoint a conservator, the judge will address several things (1) does the person with a disability need the assistance of a conservator, (2) if so, who is the most appropriate person to serve as conservator, and (3) what is the least restrictive means of protecting the person with a disability? If a conservator is appointed, the judge must determine what rights are to be removed from the person with a disability. A list of the rights to be considered (as of 1/1/2021) can be found here.
Who Can Be Appointed Conservator?
If the person with the disability previously designated a specific healthcare agent in writing (such as in a living will or power of attorney), the court will give priority to the agent when considering who to appoint as conservator. 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. The court must always consider the manifest best interest of the person with the disability when determining who should be appointed as a conservator.
Unfortunately, there is often a negative connotation associated with conservatorships. While no area of the law is without its flaws, it’s important to note that conservatorship laws in Tennessee change (for the benefit of the person with a disability) pretty frequently. The fluidity and progressive nature of this area of practice is a testament to the ever growing need to protect our most vulnerable population. While the process is not perfect, it continues to get better and better, thereby reducing the cases of abuse/neglect/and exploitation.
Many people believe a conservator has the unilateral authority to sell or liquidate property and use the disabled person’s money for the conservator’s benefit. This is simply not true. Conservators are required to seek court approval to sell real estate. They must get permission to change an investment strategy. Conservators file an Annual Property Management Plan and Accounting that is accompanied by bank statements, cancelled checks, bills, invoices, receipts, etc. If the disabled person’s money is misused or misappropriated, it will likely be caught and addressed in a timely manner.
Modifying/Terminating a Conservatorship
A Tennessee 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.
Our Conservatorship Lawyers Are Here To Help
If you need assistance establishing a conservatorship in Davidson County, Williamson County or the surrounding communities, call our experienced attorneys. We’re here to help. Contact our conservatorship lawyers now for more information.
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