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Sometimes, it may be necessary to take legal action in order to protect or care for disabled loved ones. The Tennessee conservatorship lawyers at Martin Heller Potempa & Sheppard have assisted hundreds of clients throughout Middle Tennessee with the process of seeking a guardianship or a conservatorship. Our experienced family and estate attorneys will present you with the available legal options and guide you through the difficult decisions that needs to be made.
What is a Conservatorship?
If you have a loved one who is disabled or an incapacitated adult, you may need legal authority to manage their affairs. The best solution is to go through a conservatorship – a legal proceeding where the court will appoint an individual or entity to be responsible for making the decisions that are in the best interest for that person. The conservator can be responsible for handling medical decisions, financial decisions 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, a husband who is in a coma following a car accident.
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.
The Rights of the Conservator
Court proceedings must be initiated in order to establish a conservatorship. Before a conservator is appointed, two factors must be established: the individual in question is disabled and the conservator would be the “least restrictive alternative” to protect the disabled person for health and/or financial reasons.
After determining who should be appointed as conservator, the court will then inform the conservator as to their powers and rights, including:
Health care 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.
Our Nashville Conservatorship Lawyers are Ready to Help
If you need assistance establishing a conservatorship in Franklin/Williamson County or the surrounding communities, it’s best to discuss the situation with an experienced family lawyer. The Tennessee conservatorship lawyers at Martin Heller Potempa & Sheppard, PLLC can help you understand the necessary steps in arranging future care for your loved one.
We’re here to help. Contact our conservatorship lawyers now for more information.