What is a conservatorship?

By default, any individual over the age of 18 is considered a competent adult with the rights to make their own decisions about their money, employment, living arrangements and all other areas of their life.  This can be problematic for adults with disabilities who either have difficulty making appropriate decisions for themselves, or are at risk of someone taking advantage of them.

Tennessee law allows anybody who is aware of an individual who needs assistance (referred to here as either the “person” or “ward”) to help the individual by filing an action for conservatorship.  The court can appoint a conservator, who will be given the legal authority to make certain decisions on behalf of the person, depending on the needs of the situation.  In order to do this, the court must find that the ward is unable to manage their own affairs on their own, and that the proposed conservator (sometimes called a “fiduciary”) is an appropriate individual to help him.

The conservatorship can be very broad, allowing control over almost all personal and financial issues, or it can be very narrow, as there is no reason to remove more decision-making ability than necessary.  For example, the conservatorship could exist only for the purpose of managing and selling certain assets.

Are there different types of conservatorships?

Absolutely.  The court will tailor the conservator’s power according to the needs of the ward.  If the disability is more profound, the court can establish a full conservatorship (sometimes called a plenary conservatorship) which will give the fiduciary nearly total control over the ward’s affairs.  If the person is higher functioning, the court may establish a limited conservatorship, which would give the fiduciary control only over a few specific areas, allowing the ward to retain authority over the remainder of his affairs.  In addition, the court can order a temporary conservatorship which is appropriate for a ward who is suffering from a severe illness or other temporary condition.

How does a conservator get this power?

Anybody who knows that a person with a disability is in need of assistance can ask a probate judge to find that the person needs supervision and to establish a conservatorship.  Whoever asks the court does not need to have any type of relationship with the individual. It could be a friend, relative, member of a church, or anybody else who recognizes the individual with a disability is unable to manage his own affairs.

The judge will rely on testimony by whomever filed the papers with the court, plus testimony by doctors or psychologists. The court may also appoint a temporary guardian to investigate the situation and make his own recommendation. In addition, the individual with the disability is entitled to have an attorney appointed to help him maintain his rights.

Once appointed, the newly appointed conservator will receive “letters of conservatorship”, which authorize him to make necessary decisions for the person with a disability.

What rights are affected by the conservatorship?

As mentioned above, the person has the same rights as anyone else.  Tennessee statutes states that the rights that may be removed from the ward and given to the conservator include the right to:

• vote
• dispose of property
• execute instruments
• make purchases
• enter into contractual relationships
• hold a valid Tennessee driver license
• give or refuse consent to medical and mental examinations and treatment or hospitalization
• do any other act of legal significance the court deems necessary or advisable

In addition, for young persons just reaching the age of 18, I generally include the right to consent or refuse special education and related services from the schools.

Can the person with the disability still make his own decisions?

Again, no more rights need to be removed than necessary, and the ward will retain any rights not specifically removed by the court.  It’s always desirable to allow the person to retain as much dignity, privacy, and control over their own affairs as possible.  The purpose of the conservatorship is to protect and assist the ward, not remove all their freedom.  For example, even if the court removes the person’s right to maintain bank accounts and make purchases, there is no reason the conservator cannot allow the ward his own spending money or to participate in money management as much as he is able.

Furthermore, the ward is entitled to have his desires considered when the conservator is making decisions for him, and his opportunities for independence should be maximized when possible.

Who can be the conservator?

When deciding who will take over these responsibilities, the court will look at several options. First, the court will look to see if the individual with the disability has expressed a preference. For example, if the person had ever executed a power of attorney (common for aging individuals), the ward can specify that they would prefer their attorney in fact also serve as their conservator.

Next, the judge will look to the spouse, then the children, then other family members of the person. If none of the above are willing or able to serve, the court can look to any other person or even appoint a professional conservator.

What else must the conservator do?

Depending on the situation, the fiduciary may be required post a bond. A bond is an insurance policy that will replace the assets of the individual if the fiduciary acts inappropriately with the person’s assets. Normally, the judge will require the conservator to file an annual status report showing how the person’s income and expenses were managed during that year.

When does the conservatorship end?

The duty of the conservator can end in several ways.  The ward will always retain the right to ask the court to remove the conservator if he believes the fiduciary is no longer needed.  This may be the case is the person has recovered from an illness or other condition that had caused them to be incompetent.

Also, if the conservator becomes unable to continue to serve due to his own advancing age or other situation, it will be necessary to return to court to request that a new fiduciary be appointed.  However, if this possibility is anticipated early, the judge can appoint a successor or standby conservator in the original order.

Also, the conservatorship ends when the individual with the disability dies and there is no longer a need to manage the person’s affairs. A request should be made to the probate court to nominate a personal representative to settle the person’s estate.

When a fiduciary is dismissed, he will be required to file an accounting with the court showing how all the assets and expenses were handled or maintained.

Contact me for help

Of course, this is just a brief summary of this area of law.  If you have a family member or someone you know who you believe needs supervision or assistance due to a disabling condition, contact me for more information or to find out how I can help you.