(865) 588-3700 • Monica J. Franklin is a Certified Elder Law Attorney by the National Elder Law Foundation, the ABA approved entity for certifying attorneys as Specialists in Elder Law. info@monicafranklinelderlaw.com

CONSERVATORSHIP

susieWhat is a conservatorship?

A conservatorship is a court proceeding. It is necessary when a person suffers from a mental or physical disability such that he can no longer make financial and/or healthcare decisions. This is a process whereby the disabled individual’s rights are removed and vested in another person, the conservator. The order appointing the conservator must specifically state the rights removed from the person. For example, the rights to sell property, to vote, or to drive may be removed from the disabled person (“ward”).

If the disabled person has a durable power of attorney for finances and healthcare, a conservatorship can usually be avoided. In Tennessee, the court may appoint a conservator over the person, a conservator over the estate or a conservator over both the person and estate.

Who will the court appoint as Conservator?

The law provides that certain people are preferred to serve before others. For example, someone the disabled person previously appointed as agent under a power of attorney. Absent a power of attorney, spouses will be considered before children, and children before more distant relatives. For those individuals disabled since birth, the parents are typically appointed.

Sometimes those who have preference to serve under the law cannot, or should not for some reason. The court will consider reasons not to appoint someone such as: evidence of having taken advantage of the disabled person, criminal history, or mismanagement of money. In addition, if the person seeking to be appointed is unable to obtain the required bond, then he cannot serve.

A conservator is subject to the court’s jurisdiction and must account annually to the court as to how he has spent the ward’s money. Depending on the size of the estate, a bond may be necessary. The bond premium is paid from the ward’s funds. The conservator must have the court’s permission and approval before selling real property.

Who may file the conservatorship proceeding?

Anyone who has an interest in the disabled person’s welfare may file the conservatorship petition. The petitioner does not have to be a family member.

Are there conservatorship forms so that an attorney is unnecessary?

Tennessee courts do not provide forms for a conservatorship.

How much does it cost?

It depends on the complexity of the case and whether or not the disabled person or a family member contests the conservatorship. Typically there are at least two attorneys involved: the Petitioner’s attorney and the Guardian ad Litem. There are also filing fees with the court.

If the disabled person contests the conservatorship then he or she will likely also have either a hired attorney, or attorney ad litem (appointed by the court). Complex cases can involve expert testimony, depositions, and multiple hearings. Some conservatorships can be very costly.

How long does it take?

If the conservatorship is uncontested, it usually takes about four to eight weeks. If the disabled person is in a life-threatening situation, an emergency conservatorship can be obtained in a matter of days, but that is only a temporary solution, and a the due process requirements of a permanent conservatorship will have to be followed in order to have a long term solution.

Why does it take so long?

A conservatorship is a process. Because the Petitioner is asking that rights be removed from someone, due process requires that certain steps be taken to protect the disabled person. A Petition must be drafted explaining why a conservatorship is necessary. Then the Petition must be filed with the Court. The Chancellor must sign an Order appointing a Guardian Ad Litem (a neutral attorney), and the clerk must issue the Summons and Notice of Hearing. The disabled person must be formally served with a copy of the Petition and Notice of Hearing, and the next of kin must be notified by certified mail. The Guardian Ad Litem must perform an investigation and make a report to the Court. Finally, if the matter is uncontested a brief hearing is held. In some counties, the hearing can be held in chambers. If the matter is contested, the hearing will likely last hours, or even days.

Is there an alternative to a conservatorship?

In some cases, there is no alternative. However, if the disabled person is willing and competent to sign a power of attorney, a conservatorship may be avoided. Conservatorship should always be the option of last resort because it removes rights from the disabled person which is a very serious loss of individual autonomy.

I feel that my mother needs a conservatorship, but I do not want to serve. Is there an alternative?

Yes. In some cases it is appropriate for the public guardian to serve as conservator; however, the case must meet certain requirements.

What are some of the differences between a power of attorney and a conservatorship?

When a person signs a durable power of attorney for financial decisions, he gives his agent the authority to act in any way he could act. Depending on the language of the power of attorney, the agent may pay bills, sell real property, or make other transfers. A power of attorney does not remove any rights from the principal (person signing the power of attorney). In a conservatorship, rights are actually removed from the disabled person and vested in the conservator. For example, the rights to sell property, vote, or drive may be removed from the disabled person (“ward”).