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 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. 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 friend, 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.
Before a conservator is appointed, two factors must be established: the individual in question is suffering from a disability and 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 granted so that no rights are inadvertently taken 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 conservator 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 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 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.
Modification or Termination of TN Conservatorship
When the health of the person with a disability changes and he or she no longer needs a conservator, the conservatorship will be terminated. In the alternative, if circumstances have changed but assistance is still needed, 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.
Our Nashville Conservatorship Lawyers are Ready to Help
If you need assistance establishing a conservatorship in Davidson or Williamson County or the surrounding communities, it’s best to discuss the situation with an experienced lawyer. The Tennessee conservatorship lawyers at Martin Heller Potempa & Sheppard, PLLC can help you understand the necessary steps to take care of your loved one.