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What is a Conservatorship? – When is It Needed and Who Can Bring It?
It may occur that a client loses his/her mental faculties. This could be due to a disease, an accident, or just the aging process. The reason why often doesn’t matter. It could happen to a minor child, a young adult, or someone in middle age or old age. When this does happen, someone needs to be legally put in charge of the person’s financial decisions and/or their personal decisions.
Technically, a “guardianship” is for a minor child, and a “conservatorship” is for an adult in Tennessee. They are essentially the same thing, just an age difference between a minor and an adult.
When Is It Time for a Conservatorship?
How do we know when clients have crossed a line from being able to make decisions for themselves, to needing someone to act for them? There is no defined list of conditions. In some circumstances, it is obvious, such as a client being in a coma or suffering a severe stroke. In other situations, it may not be obvious at all, such as slowly progressing dementia.
The reality is that the client will not be deemed to be incapacitated unless a doctor certifies it as such. The certification is often stated in a letter or report signed by the doctor. Making, what some people might consider, poor decisions or having bad judgment is not by itself a cause to declare someone incapacitated. People are allowed to do what others would consider a mistake, so long as they can understand what they are doing. If a doctor is unwilling to certify the client is incapacitated, then there is nothing that can be done.
Sometimes, there are concerns that another person may be applying pressure or using inappropriate influence on the client, taking advantage of his/her declining mental condition. This can also indicate that the client does not have the mental capability to make decisions or exercise his/her free will.
How is a Conservator Selected?
When a client becomes incapacitated, there are two ways that a person can be designated with certain authority to help the client.
- The client may have previously executed certain legal documents that designate one or more people to act if he/she later becomes incapacitated. These documents would normally include a durable power of attorney (generally for financial matters) and a health care power of attorney. Additionally, a trust document can be used to help manage the assets, similar to a durable power of attorney. Of course, the client has to execute these documents before the incapacitation occurs.
- If the client does not have any of the above documents, a court proceeding can occur to formally appoint a conservator for the client. The conservator can be appointed over financial decisions, personal decisions, or both.
Often, if the client has power of attorney documents, the conservator is not needed, as the power of attorney person has all the authority that is needed to help the client. But if the client does not have these documents, a conservator is needed.
The conservatorship process begins with someone filing a petition, usually in the probate court for the county where the person resides. The petition essentially asks the court to (1) declare the person incapacitated or “disabled,” and (2) establish a conservatorship for the person. During this process, the court will also decide who is the best person to serve as the conservator.
Who Can Bring a Conservator Action?
One question that often comes up is who has the ability, or “standing,” to file the petition asking the court to establish the conservatorship. The answer is, almost anyone has the ability to file that original petition. If the person filing the petition can attest to certain facts that cause the concern, then he/she can file the petition. This is not limited to someone with an interest in the person’s assets.
For instance, it could be a friend, a neighbor, the person’s attorney (we have filed petitions related to clients who we feel have become incapacitated). Unlike a Will contest, which can only be brought by someone who would otherwise “take” under the person’s Will, who can bring a conservator action is much broader.
Contact a Conservatorship Attorney to Learn More
Deciding that it’s time for a conservatorship for your loved one is difficult. If you believe your loved one can no longer make their own choices, you likely have many questions regarding how to help them. The best thing you can do at this time is to consult with an experienced conservatorship attorney. At Martin Heller Potempa & Sheppard, PLLC, we can help you through this process.
Contact us today to learn more.
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