Conservatorship Frequently Asked Questions
Below are many questions that will help answer basic questions about conservatorships in Tennessee. If these questions do not provide the answers you are looking for, give us a shout. We will be happy to answer any questions you have.
If you have power of attorney, is a conservatorship still needed?
Generally not. If valid powers of attorney are in place, a conservatorship is not needed most of the time. A general power of attorney usually has similar powers that a conservator has. So establishing a conservatorship does not give the fiduciary any more power than he already possesses. When someone contests the validity of the power of attorney a conservatorship could be filed. That conservatorship would seek to remove the agent under the power of attorney from power. A conservatorship may also be a good idea should an power of attorney agent be elderly or sick and the disabled person lacks capacity to execute a new power of attorney.
Who can petition the Court to establish a conservatorship? Does it have to be a relative?
Anyone who has an interest in the conservatorship can petition the court to establish the conservatorship, it does not have to be a family member or close friend.
What if the disabled person has no assets, is a conservatorship still needed?
While every situation is different, it is still a good idea to have someone in charge of the disabled person's healthcare and finances, even if they have few assets. Without a conservatorship no one would be able to make decisions for the person.
If the disabled person has only a small amount of assets and little income, do you still need to be bonded?
Bond can be waived by the Court under the following circumstances:
- The total assets of the disabled person are $10,000.00 or less and the Court finds the expense of a bond outweighs the risk.
- The assets are placed in a bank or other financial institution. The bank and the conservator must have a written agreement that the conservator cannot withdraw funds without Court approval. This agreement must be filed with the Court.
- The assets of the disabled person are deposited with the Court.
If you are not handling the assets of the disabled person, there is no requirement for a bond. So if you are the conservator over the person's heath care, there would not be a need for you to be bonded.
If the disabled individual has very little assets, do you need to file a property management plan?
No. Tennessee law states that if the disabled person has less than $25,000.00 in assets a property management plan is not necessary and can be waived.
Do you need Court approval before you sell any of the disabled person's real estate or other property?
If you are required to have a property management plan, then Court approval is required before any asset valued at $1,000.00 or over is sold. However, if you do not have a property management plan, you do not need Court approval to sell property. Additionally, a motor vehicle may be sold without approval of Court.
Also note, if any asset is subject to control by the terms of a will or trust it cannot be sold. So if a conservator is holding real estate for a loved one that is subject to the terms of a trust, the conservator cannot sell that real estate without Court approval.
What happens if the conservator dies or no longer wishes to serve under the conservatorship?
The conservator may resign at any time, subject to approval of the Court. The Court will set a date out by which the duties of the conservator will end. The Court must then appoint a successor conservator after the resignation of the current conservator.
Can the conservator be compensated for her duties and work in taking care of the disabled person?
Under Tennessee law, a conservator can be compensated for the work that they do to care for the disabled person. However, the conservator cannot be paid without approval of Court. The Court must set the compensation. In doing so, the Court will consider the following circumstances:
- The complexity of the disabled person's assets
- The time it takes the conservator to care for the disabled person
- The time the conservator is away from her job
- Whether the conservator's services would have been normally provided without the conservatorship.
Can the disabled person still make decisions for himself/herself?
When a conservatorship is established, the legal rights of the disabled person to make decisions for himself are taken away and placed in the conservator. That means is that the conservator will be responsible for making all major decisions for the disabled person. The disabled person may still make daily decisions for himself, such as what to eat, what to wear, etc. However, if certain rights have been taken away from the disabled person then that person cannot exercise those rights.
What happens if a person fails to provide an accounting of the conservatorship?
Tennessee law requires the Chancery Court provide you notice when the accounting is due. If you need an extension, Tennessee law allows the Court to grant an extension for the filing of the accounting for good cause. If you continue to fail to file the accounting, the Court clerk will instruct you to appear on a certain date with the accounting. Should you again fail to provide the accounting, the Court will issue a show cause order. The show cause order requires you to appear and explain why you should not be held in contempt. If you ultimately fail to provide an accounting of the conservatorship, the Court can issue a judgment against you personally for the amount that remains unaccounted.
Can a conservator change a will?
A conservator has no power to create, alter, or change a disabled person's will, revocable trust, or other estate planning documents. If the conservator attempts to do so, any changes would be void and ineffectual.
How long does it usually take to establish a conservatorship in Clarksville?
It depends on the type of conservatorship. At a minimum, it usually takes about one month to obtain a permanent, uncontested conservatorship. An emergency conservatorship takes less time. You could usually get approval by the Court the same day you apply for a emergency conservatorship. However, a hearing must be held within 5 days after the Court grants the emergency conservatorship. Under no circumstances can the emergency conservatorship last more than 60 days.
What is the difference between a guardianship and a conservatorship?
In Tennessee, a conservatorship is a court proceeding in which a person's legal rights are taken away from them and are placed in another person or entity. A conservatorship is required when the person can no longer make decisions for themselves. Conversely, a guardianship is a court proceeding in which a person is named to care for a minor's health, assets, education, or other matters.
Clarksville Conservatorship Lawyer
If you have a loved one that is in need of a conservatorship call and speak with us about your issues. We are here to help. Attorney John Crow has handled many conservatorships. He can help simplify the complexities of the conservatorship process. Call 931-218-7800 to set up an appointment today.