What is a Conservatorship?
A conservatorship is created in Tennessee when a court appoints a person or entity to make decisions for someone who cannot make decisions for themselves. Typically, a conservatorship is required when a person does not have a valid power of attorney in place. Without a power of attorney, no one can access the person's financial accounts or effectively manage their healthcare.
Example of a Conservatorship
The most common circumstances in which a conservatorship is needed is when an elderly person develops dementia or Alzheimer's Disease. For example, Bob lives in Clarksville and his family has been noticing that his short term memory has been failing. He often forgets people's names, to do daily chores, bathe, and care for himself. Bob's family takes him to see his doctor and his doctor diagnosed him with dementia. The doctor tells Bob's family that he is unable to make competent decisions for himself and advises his family that he needs a conservatorship. Unfortunately, Bob does not have a power of attorney in place. His family quickly discovers that it is impossible for anyone to access his bank accounts to pay his bills or otherwise manage his financial affairs. They also have a hard time making medical decisions for him. Bob's family decides to consult a conservatorship lawyer who helps prepare the a petition to establish a conservatorship. After the legal process is complete, Bob's daughter is appointed conservator over him and is now able to make both medical and financial decisions for him.
Circumstances When a Conservatorship is Needed
There are many circumstances in which a conservatorship may be necessary. Here are a few examples of those situations:
- An individual does not have valid powers of attorneys. That individual suffers from a disability, whether mental or physical, and cannot make decisions for them.
- There is a valid power of attorney in place, but the current person acting as power of attorney is abusing his power and needs to be removed.
- The agent listed in the power of attorney document is unwilling or unable to serve as power of attorney.
- There is a dispute among family members as to the validity of the power of attorney.
Read more on situations in which a parent may be "borderline" in need of a conservatorship.
How Do You Establish a Conservatorship in Tennessee?
There are several steps that are required by statute that must be taken in order to establish a conservatorship in Tennessee. If a family member or friend needs a conservatorship, the person that petitions the court to establish a conservatorship must take the following steps:
Physical and Mental Examination
A physician or psychologist must examine the individual and determine whether a conservatorship is needed. Should the examiner find that the person needs a conservatorship, the physician or psychologist must prepare a sworn written statement to that effect and provide the statement to the Court and all parties involved.
File the Petition
A proper petition must be filed with the Montgomery County Chancery Court meeting all the statutory required by Tennessee law. The law is very specific as to what goes into this petition, so diligence is critical. Among other requirements, this petition must list the legal rights that will be taken away from the individual and placed in the conservator.
Property Management Plan
If the proposed conservator is going to manage property, then a property management plan must be prepared and filed with the Court. This property management plan must list all assets, income, and usual monthly expenses of the individual. The property management plan will also state a plan for how those assets will be handled. If the petitioner does not know all of the assets and expenses at the time of filing, then the petitioner must later file a property management plan with the Court once this information is discovered.
Guardian Ad Litem
There will likely be a need for a guardian ad litem (GAL) to be appointed for the individual. The GAL is not an advocate for any party. The GAL's job is to investigate this matter independently and determine whether there is a need for a conservatorship. Once the GAL has investigated the matter, the GAL will file a report with the Court expressing her opinion.
Typically, there will also be a requirement that the proposed conservator be bonded. What this means is that the bond serves as insurance for the disabled person. If the conservator runs off to Canada with the money, the bond will cover the money taken by the conservator. The conservator will typically contact an insurance company, fill out an application, provide whatever documentation the insurance company requires, and will be issued paperwork saying that the insurance company has bonded the conservator. That paperwork will be filed with the Court as proof of bond.
The disabled person must be served with a copy of the petition and a summons. Once the GAL is appointed by the Court, the GAL is generally the person that serves the individual. Note that service is a constitutional right owed to the disabled person and the Court cannot establish the conservatorship before service is made.
Attorney Ad Litem
Should the disabled person believe he does not need a conservatorship, he can request the Court to appoint an attorney ad litem to advocate on his behalf. An attorney ad litem can also be recommended by a GAL or the Court can appoint one on its own.
The Court must hold a hearing on the petition that was filed for the establishment of a conservatorship and hear proof on the issue. Typically, if everyone agrees that a conservatorship should be established then the Court will then enter an order appointing a conservator after a brief hearing. If the hearing is contested, by the disabled individual or any other person, then the Court will have a trial in the matter. At trial, the Court will determine if a conservatorship is warranted and who should be appointed as conservator.
Letters of Conservatorship
If the Court finds that the establishment of a conservatorship is necessary, the Court will instruct the Court clerk to issue Letters of Conservatorship to the conservator. These letters will allow the conservator to access any assets that the individual may have as well as allow the conservator make medical decisions for him.
Tennessee law requires that the conservator prepare and file an accounting of your assets six (6) months after being appointed conservator. After that accounting is filed, the next accounting due will be the following year at the same time. An annual accounting is due each year until the conservatorship is dissolved.
Most conservatorships are uncontested, meaning that all persons involved have no opposition to a conservator being appointed to manage the affairs of the disabled person. However, if the disabled person, family members, or friends file an action and contest the conservatorship the Court must make two decisions:
- Is there a need for a conservator to be appointed? Does the disabled person really need a person appointed to look after their affairs?
- Who should be appointed as conservator?
If the parties are unable to settle their differences, the judge must make a decision on both these issues. This process requires litigation and ultimately a trial on the matter costing each party involved significant legal fees, time prosecuting or defending the case, and stress.
Unfortunately, must like will contests, contested conservatorships are often very emotional proceedings. Many times they pit parent against child, sibling against sibling, or stepparent against stepchild. Both the Court and the conservatorship lawyers involved should encourage the participants to try to settle the case if at all possible.
Contact Conservatorship Attorney John Crow
If you have a loved one who is need of a conservatorship let us know. Our job is to not only to handle the legal work surrounding the conservatorship, but to also help walk you through questions you may have regarding the entire process. Give Conservatorship Attorney John Crow today at 931-218-7800 to schedule an appointment.