A conservatorship or adult guardianship is the legal process in which an individual, following the filing of a Petition, is selected by a Court to handle the affairs of another individual who has become incapacitated or disabled. In the state of Tennessee, this person is referred to as a conservator, and the incapacitated or disabled individual is referred to as the ward. The conservator makes all medical and financial decisions for the ward, as this process is intended to protect those who cannot carry out such tasks on their own. Conservatorships are most often used for aging relatives. However, a conservatorship can also be established for people who are experiencing a long term/temporary disability or those who are mentally, physically, or emotionally unable to care for themselves.
When seeking a conservatorship in Tennessee, a petition laying out certain facts must be filed with the Court. The petitioner, who is also usually the proposed conservator, must establish two things before the Court will grant the conservatorship: 1) proposed ward is a disabled person in need of a conservatorship to manage his/her affairs (normally established by an affidavit signed by the proposed ward’s primary care physician); and 2) the appointment of a conservator is not only beneficial to the proposed ward, but it is the “least restrictive alternative.” The court will take many things into consideration, such as medical examinations and reports, financial records, and even eyewitness testimony.
Upon filing a petition with the court for conservatorship, a guardian ad litem will be appointed. This individual is a licensed attorney who represents the best interests of the proposed ward, and will examine all the medical and financial records and will conduct interviews with all parties involved. Upon the conclusion of the investigation, the guardian ad litem submits a report to the Court with a recommendation to approve or deny the conservatorship. The guardian ad litem can also recommend a person who they deem most appropriate to serve as the conservator.
A conservator is oftentimes mistaken as being the same as a power of attorney. While similar, there are key differences between the two. Specifically, a power of attorney is a legal form that grants the right to make certain decisions on another’s behalf. It is important to note that with a power of attorney, the individual still retains his or her ability to make decisions on their behalf. With a conservatorship, following court proceedings, the judge removes these rights from a disabled or incapacitated individual.
Conservators can be compensated for their services. Their payment comes from the assets of the individual they are caring for. Generally, payments are only paid to public or professional conservators, but requests from family members who have been appointed conservator can also be considered by making a formal petition with the court. A conservator isn’t required to support the ward, only to manage the ward’s assets and make personal decisions for them. A financial conservator does have the responsibility to seek all financial benefits and coverage for which the ward may qualify. These benefits may include: Social Security, Veterans Administration benefits, medical insurance, pension and retirement benefits, disability benefits, public assistance, and Supplemental Security Income.
A conservator must act on behalf of the ward until the Court issues an Order ending this responsibility. This typically occurs when: the ward dies, the ward no longer requires this level of assistance, the conservator resigns or can no longer handle the responsibilities, or in the case of a financial conservatorship; the ward’s assets are used up.
If you or a family member encounters the need for a conservatorship, please contact one of our experienced attorneys at 423-434-4700 today. We will be happy to answer any questions you may have, or to guide you through this process.