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, PLLC have assisted hundreds of clients throughout Middle Tennessee with the process of seeking guardianship or conservatorship for a loved one. Our experienced family and estate attorneys will present you with the available legal options and guide you through the difficult decisions you need to make.
What is a Conservatorship?
If you have a loved one who is suffering from a disability, you may need legal authority to manage their affairs. If there isn’t a Power of Attorney or another document that nominates a fiduciary to help, a conservatorship may be necessary. A conservatorship involves a legal proceeding where the court will appoint an individual or entity who will be responsible for making decisions that are in the best interest of the person with a disability. A conservatorship can include medical/personal 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. A conservatorship may also be necessary when someone is temporarily disabled by an illness or an accident. For example, a husband suffering from a traumatic brain injury following a car wreck.
If the person with a disability has designated a specific healthcare agent in writing (such as in a living will or power of attorney), that person will be given priority if a conservator becomes necessary. Generally, if there is not a designated agent, a family member fills the role, 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, the court may consider an unrelated person. The person may be a friend, a private attorney, a public guardian, or a corporate entity. The court must always consider the best interest of the person with the disability when determining who should become their conservator.
How to Appoint a Conservator
Two factors must be established before the court appoints a conservator:
The individual in question is suffering from a disability.
A conservatorship is the “least restrictive alternative” to protect the person with a disability.
It is important to fully understand a court’s order with regard to the authority they grant. The goal is not to inadvertently take away rights from the individual with the disability. Generally, the court will establish a conservatorship that is as least restrictive as possible. If a right is not specifically removed from the person with a disability, then he/she retains that right. Rights that are commonly removed and transferred to the conservatory include:
Executing legal documents or other significant documents
Managing finances, banking, paying bills
Purchasing and disposing of real and personal property
Defending and prosecuting lawsuits
Consenting to medical treatment
Consenting to the residential placement and/or treatment facilities
Applying for and managing government benefits/services
A Tennessee conservatorship may be modified or terminated if the circumstances of the disabled person or court-appointed conservator change. 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.
Modification or Termination of TN Conservatorship
When the health of the person with a disability changes and they no longer need a conservator, the conservatorship will be terminated. In the alternative, if circumstances change but the individual still needs assistance, a modification of the rights removed may be more appropriate than a complete termination. If the change in circumstances is largely related to the conservator rather than the person with a disability, then a change in conservators may be the best course of action.
Under Tennessee law, a petition may be filed by the disabled individual via written or oral communication. Upon receipt, the court will conduct a hearing of the individual’s rights. As deemed by the court’s findings, they may:
Dismiss the petition;
Remove the conservator and dissolve the original order;
Remove the conservator and appoint a successor;
Modify the original order; or
Grant any other relief the court considers appropriate and in the best interest of the disabled person.
It’s easy to feel overwhelmed and lose track of things when you’re handling everything on your own. Perhaps more alarmingly, a single mistake can lead to your entire case being dismissed.
This is when you need to consider hiring a reputable conservatorship attorney in TN. A seasoned lawyer will help you stay on top of deadlines and significant court documentation. They’ll also break down complicated legal jargon, so you can understand each term better.
1. How Many Types of Conservatorships are There?
Generally speaking, there are three types of conservatorships: plenary or full, limited, and temporary.
Full conservatorship: Here, the conservator is in full control of the ward’s finances. This is usually reserved for when the ward is completely incapacitated and unable to look after their estate.
Limited conservatorship: In this arrangement, the conservator has specific powers, depending on the ward’s capabilities. For example, if the ward can manage their day-to-day expenses, but not long-term investments, then the conservator will take over those responsibilities.
Temporary conservatorship: This type of conservatorship is granted when the ward’s needs are temporary, or there’s another conservatorship pending.
Regardless of the type of conservatorship, you should consult a Nashville conservatorship attorney to guide you through the entire process.
2. What Does a Conservator’s Appointment Process Look Like?
A conservatorship is appointed after a relative, friend, or public official files a court petition seeking one. The petitioner must provide evidence of why the ward cannot manage their financial or personal affairs themselves.
Once the petition is filed, a court-appointed investigator interviews the ward to determine if they are truly in need of legal guardianship. The investigator reports their observations to the court.
During the court proceedings, the ward’s family and other well-wishers may be asked to testify. The judge will assess all the available evidence to see if the conservatorship is required, and what powers must be granted to the conservator.
3. What Sort of Disputes Can Conservators Get Into?
Because conservatorship is a highly sensitive issue, conservators may get into several legal conflicts, issues, and disputes. A few examples include:
The conservator fails to perform their duties appropriately
The conservator indulges in fraud or misrepresentation (such as using the ward’s name to sign documents without their permission or the court’s approval)
The conservator misuses funds for personal gain
The conservator violates significant laws
Multiple people disagree over who should serve as the ward’s guardian
Conservatorship disputes are complex and involve several parties. Hence, it’s best to have a conservatorship lawyer in TN on your side to tackle these problems effectively.
4. Is It Necessary to Hire Conservatorship Lawyers?
Although you don’t need a conservatorship lawyer to take your case forward, we strongly recommend you hire or consult one. Here’s how a conservatorship lawyer in Nashville can help you out.
Preparing the initial petition is no easy task. A conservatorship attorney will assist you in drafting and presenting it in court during the hearing.
A lawyer will also help you collect relevant proof to support your case.
They can prepare a report listing all of the ward’s assets.
Most laws change, and Tennessee conservatorship laws are no different. A lawyer will keep you informed and aware of every legal update.
Our Nashville Conservatorship Lawyers are Ready to Help
When it comes to conservatorship cases in Nashville, consulting a conservatorship lawyer in Tennessee should be a no-brainer. Not only are they well-versed in Tennessee laws and guidelines, but they also know what evidence is most likely to persuade the court.
Furthermore, a reputable lawyer will clarify all your queries and represent you in court if you wish to file a petition. They will defend your rights every step of the way and walk the extra mile to obtain a favorable verdict. You can trust your lawyer to portray your story in the best possible light and ensure the conservatorship is fair.
If you need assistance establishing a conservatorship in Davidson or Williamson County or the surrounding communities, it’s best to discuss the situation with experienced conservatorship lawyers. The Tennessee conservatorship lawyers at Martin Heller Potempa & Sheppard, PLLC can help you understand the necessary steps to take care of your loved one.