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 that need to be made.
What is a Conservatorship?
If you have a loved one who is disabled or is 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 of 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 a 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. The court must always consider the manifest best interest of the person with the disability when determining who should be appointed as a conservator.
Though a necessary process in some cases, it is often difficult to complete as the person seeking the conservatorship will face an expensive, oftentimes public, legal proceeding. Because an individual’s health and capabilities are likely to change throughout the course of his or her life, these legal proceedings are lifelong. But having essential estate planning documents in place like a will or advanced directives before a health crisis occurs or a disabled family member can no longer make decisions on their own occurs, the heartache of a conservatorship can be avoided.
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 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.
Modification or Termination of TN Conservatorship
When the health of the disabled individual changes and he or she no longer needs a conservator, the relationship will be terminated. But in cases where the health has fluctuated, there may need to be modifications to the conservatorship.
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.”
In the case where a disabled individual dies, the court will terminate the conservatorship. Within 120 after the termination, the conservator must file with the court all assets, receipts, and disbursements from the date the conservatorship ended. If no objections exist, the conservator must distribute the remaining assets and file the distribution with the court. When the court accepts the evidence, the conservatorship proceedings are officially closed.
Our Nashville Conservatorship Lawyers are Ready to Help
If you need assistance establishing a conservatorship in Franklin or 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.