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Do you have a parent or adult friend who can no longer make his or her own decisions regarding their finances and medical care? Perhaps they’ve experienced a brain injury that left them in a coma, a stroke that impaired normal function or they suffer from Alzheimer’s disease. Financial planners or bank officers also may contact family members if they notice a change in a client’s financial habits. If the parent/client does not have a durable power of attorney in place, or the power of attorney is not being used for their benefit, you will need to ask a court to appoint a conservator in a court-monitored conservatorship proceeding. Becoming a conservator (or asking that a third party become the conservator) gives you the legal ability to help them in ways you could not before and replaces a previous power of attorney which might be exercised by someone who is not acting in the parent’s best interest. 

There are two different functions of a conservator. The conservator of finances handles financial affairs on the incapacitated person’s behalf. The conservator of the person handles healthcare decisions. Both roles can be taken by the same person.  A physician will also have to recommend that the person they have examined needs a conservatorship.

If I become my parent’s conservator, what will I be able to do?

You will be able to:

• Sell real estate,
• Manage property,
• Choose doctors,
• Choose care facilities,
• And more.

You will need to file updates with the court about the things you do on behalf of your parent. This is to ensure that you do not mishandle their property. If you do, you can be replaced as conservator and be subject to penalties. 

What if someone else is caring for my parent and I believe they are mishandling funds or mistreating my parents?

Nationally, only 1 out of every 44 crimes against seniors is reported. If you suspect mistreatment of an elderly person, please report it. You can reach Tennessee’s Adult Protective Services at (615) 532-3492. 

Who can help me with a conservatorship-related matter?

If you think your parent needs a conservator and you want to take on these duties, contact VKBAR, PLLC today. The process of becoming a conservator involves a large amount of paperwork and can become very complicated, so it is important to have an experienced lawyer by your side. At VKBAR, PLLC, we pride ourselves on providing our clients with close personalized attention and the highest value. Give us a call at (615) 321-5659 to get started. 

Tennessee law strives to provide for vulnerable individuals through conservatorships and guardianships. In a conservatorship or guardianship agreement, the court takes away some of the individual’s rights and awards them to a capable conservator or guardian. Depending on the individual’s age and needs, the court may award control of finances, healthcare decisions, living arrangements, and daily care decisions. Although these care arrangements are similar, there are significant differences between guardianships and conservatorships.

Age of the Individual

The primary difference between a guardianship and conservatorship is the age of the individual protected. Guardianships are used for individuals under the age of 18. Conservatorships serve adults who the courts have determined to need assistance in life choices or health or finances.

Who Can File?

The process for initiating the process is the same for guardianships and conservatorships. Anyone who knows the circumstances of the individual can file a petition asking the court to assign a guardian or conservator. Family members are preferred. Paperwork must be filed in the county where the individual in need of care lives. 

Assessment

Once the process has started, the court goes through slightly different assessment processes for guardianships and conservatorships. If someone has requested a conservatorship, the ward must be medically evaluated by a physician or mental care practitioner, depending on the circumstances leading to the request for a conservator. In both cases, the court looks at the facts presented in the petition and may appoint a temporary guardian ad litem to act in the individual’s best interests.

Assigning a Guardian or Conservator

In both cases, a hearing will take place to determine whether or not the person in question needs a guardian or conservator. In a conservatorship case, the court determines whether or not the individual is considered disabled and if a conservatorship will protect the person’s health and assets.

If the court decides that a guardianship or conservatorship is necessary, they will appoint a responsible person or agency to act in that role. In a conservatorship case, preference is given to a person named by the individual, the individual’s spouse, or the person’s child. In a guardianship, preference is often given to one or both parents, someone designated by the parents, or adult siblings of the child.

Termination of the Guardianship or Conservatorship

In many cases, conservatorships last for the duration of the ward’s life. If the ward has a temporary disability, the conservatorship may be terminated once a medical exam indicates that the individual is capable of making their own decisions. A guardianship terminates when the child turns 18 years old. If the child is disabled, the guardian may request to become a conservator.

If someone you love needs a conservatorship, working with a lawyer can help you preserve the individual’s rights and get a conservator who can act in the ward’s best interests. Reach out to our team today to schedule a time to discuss your legal needs.

In this era of scattered families, the people who are mentally marginalized due to age, substance abuse or mental disabilities are often left in a vulnerable position to be taken advantage of by third parties of unscrupulous family members. It is common for a young family member to be living with a grandparent to be taking money from the elder, using their credit card or having a parade of their friends in the house who may take advantage of the senior or mentally disabled individual. As one social worker put it “these people may as well have a target drawn on their backs.”

Fortunately, the state of Tennessee has laws that can protect such individuals. The conservatorship laws are quite specific and do an effective job of protecting the financial and healthcare interests of people with diminished capacity. It is not a matter of just getting one individual appointed to look after the ward, but the court will actually oversee what is going on in the individual ward’s financial life through appointing a third party attorney to review the individual’s financial and home situation when a guardianship petition is filed, monitoring the expenses paid on behalf of the ward each year and having laws in place that make the appointed conservator go back for court approval when expenditures on behalf of the ward are made in excess of $1,000.00. 

A conservatorship is initiated by filing a petition with the probate court of the county where the ward lives stating that the person is an individual who is in need of assistance with their financial and healthcare needs (or it may be that they are only in need of assistance with one or the other). An affidavit of the personal physician or a physician who has examined the ward within the last ninety days is normally attached to the petition stating that due to certain conditions the subject of the petition is in need of the court’s oversight. If the situation is one of an urgent nature, the court can usually hear the petition on an emergency basis within a few days. The petitioner (the individual who filed the petition) will usually be appointed the temporary conservator if they want to so serve and can qualify for a bond. 

The petitioner doesn’t have to serve as the conservator. There are non-profit agencies which can be appointed to serve as the conservator (Fifty Forward offers such a service in Nashville, as does Guardianship and Trust). These agencies will charge an hourly fee to manage the finances and healthcare needs of the ward. In some cases it is best to have a third party manage the needs of the ward due to family conflicts or parent/child dynamics. If there is no one else to assist the ward, in Nashville, the public conservator (who is an attorney) can be appointed as the conservator. Annual reports must be made to the court and an annual accounting (like a check register with the copies of check attached), must be approved by the Court’s Clerk and Master. If a house has to be sold, the court must approve the sale and the changing over of assets from one form (investments) to another (liquid funds).

The reporting requirements are not onerous and in this age of banking on line and low cost telephonic (or video) communications, it is not hard for a remote relative to be able to take care of their relative’s needs from a far location. It may be more desirable to have someone who can see the ward more than a few times a year, but someone removed from the situation can often be the best evaluator of needs from a slightly detached perspective. 

This process is not inexpensive, the initial filing will be about $300.00. The attorney’s fees for drafting the petition and meeting with the petitioner will be on an hourly basis. A guardian ad litem (also usually an attorney) will ordinarily be appointed to inform the court of the situation of the ward and to recommend whether a conservator should be appointed. Tennessee law provides that these fees may be reimbursed from the ward’s funds if a conservator is ultimately appointed. If the ward wants representation that attorney’s fees will also be charged to the ward’s funds. These expenses can add up pretty quickly to thousands of dollars. 

It is best to get everyone in the family on board with the process in order to minimize the expenses. If old unresolved family issues are going to encumber the process, the family may want to consider a mediation prior to going forward with the conservatorship in order to avoid an interfamily battle. The process can go forward even if someone else holds the power of attorney for the individual if the fiduciary is not acting in the best interests of the ward. 

An individual can best be served sometimes only by a conservatorship which is overseen by the court. The conservatorship can be brought by interested non-family members as well as family.