Archive

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.

Irwin Kuhn, along with Michael Sontag, a partner in the Nashville office of Bass Berry & Sims, presented a continuing legal education program on prenuptial and postnuptial agreements for the Nashville Bar Association on Valentines Day 2019. The title of the CLE was Prenuptials and Postnuptials, They’re Like a Box of Chocolates; You Never Know What You’re Going to Get. The presentation focused on current case  law and best practices in crafting pre and postnuptial agreements in Tennessee.

LIVING TOGETHER AS A COUPLE AND WHAT THAT MEANS WHEN YOU DIE

More United States adults are cohabiting with a partner than in years past. The Pew Research Center reports that as marriage rates have fallen, the number of adults in cohabiting relationships has continued to climb, reaching about 18 million in 2016.
You may be sharing an apartment or a house and co-mingling your other personal property. Which works well until you die. (No one needs to reflect very long on Nashville traffic to know that Nashville traffic fatalities have increased year by year as well). The surviving partner may well be dependent on the now deceased partner’s income as to staying in the shared housing or on continuing the life style the couple maintained. A will leaving property to the surviving partner may help provide that ability to continue in a familiar setting after the loss.
If the deceased does not leave a will it is known as dying intestate. The property of an individual dying intestate in Tennessee is subject to certain laws that govern distribution of their personal property and real property. If unmarried, the entire estate will go the individual’s children. If there are no children (or heirs of children), the estate goes to their parents. If no parents survive then an estate passes to the siblings (or their heirs). If there are no children, no parents and no siblings, the estate passes to more distant relatives. There is no provision in intestate inheritance for an unmarried partner.
The heirs at law can make it very difficult for the surviving partner by demanding property be distributed to them and an accounting made of co-mingled property. Access to the house to get personal property or beginning an eviction is possible. You hope that the heirs of a single decedent would be understanding, but that is not always the case.
A will can specify that your property goes to the surviving partner. It can also specify that the inheritance is only effective “as long as you are cohabiting” at the time of death. The will can also equitably divide an estate between the partner and other heirs. It is often something put off since almost no one likes to go to their lawyer’s office, but it is of great benefit and fairly simple to state in a will.
An older will takes care of being intestate but may no longer express the situation of a decedent if there is an unmarried partner in the picture. Since 2007, the number of cohabiting adults ages 50 and older grew by 75%. This increase is faster than that of other age groups during the same time period and driven in part by the aging of the Baby Boomers. A revised will may set up a trust of funds during the life time of a partner to allow them to have the benefit of funds if needed, but still provide that other heirs will benefit after the death of the partner. A life estate in real property may allow a survivor to live in a house they are used to during the rest of their life. This intentional planning may take the burden of determining what the wishes of the decedent were off the adult children of the deceased. Updating an existing will (and insurance beneficiaries) is also important in a cohabitating situation.

The Nashville Tennessean’s Holly Meyer recently wrote about our partner Irwin Venick in an article: Why Social Justice is a Lifelong Work for One Nashville Jewish Leader.

http://www.tennessean.com/story/news/religion/2017/03/12/why-social-justice-lifelong-work-one-nashville-jewish-leader/99012904/