Society has an obligation to protect community members who cannot protect themselves. On the other hand, there are often disputes related to decision-making that revolves around autonomy and beneficence. Beneficence refers to doing what is in another person’s best interest.
This notion can conflict with a person’s desire to maintain sovereignty over their decisions. However, in certain situations, a person’s mental decline, illness, or other physical or developmental disability may require a conservatorship.
Becoming a conservator and engaging in an active conservatorship is a complex process. It requires ongoing consideration of both the conservator’s ability to perform their role and the ward’s best interests. A Tennessee conservatorship lawyer can assist during all stages of this complicated process.
The Brentwood conservatorship attorneys at Batson Nolan PLC can help you determine your right to assert a conservatorship or dispute a pending or existing conservatorship. We also help families avoid the need for conservatorships through comprehensive estate planning. Our Brentwood conservatorship lawyers have more than 160 years of hands-on experience working through some of the most challenging conservatorship issues. We are compassionate advocates who understand the legal aspect of these cases as well as the emotional and familial challenges conservatorship proceedings often raise. Thus, we take special care in attentively listening to your needs before we discuss your possible options. Contact us today.
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Court-Ordered Conservatorship in Tennessee
Tennessee law provides that a conservatorship is a legal, court-created relationship that takes decision-making authority away from a person with a disability and vests that power in another person. The person to whom the decision-making authority is transferred is referred to as the “conservator,” and the disabled person is the “ward.”
Tennessee’s conservatorship statutes define “a person with a disability” as any person 18 years old or older who the court determines is in need of partial or full supervision, protection, and assistance because of mental illness, physical illness, injury, developmental disability, or another mental or physical incapacity. A full conservatorship gives the conservator the ability to make all decisions on behalf of a disabled individual. On the other hand, a limited conservatorship gives a conservator the right to make only certain decisions, which are determined by the court.
What Is the Difference Between Guardianship and Conservatorship?
Some states use the terms “guardianship” and “conservatorship” interchangeably; however, the terms mean two different things in Tennessee. Guardianship is a designation reserved for those who are under 18 and need someone to make decisions on their behalf.
The Importance of Conservatorships
Conservatorships play an essential role in society as they protect the well-being of an adult who cannot protect themselves.
This designation promotes family stability and legal relationships. Conservatorships can allow the conservator to consent to treatment decisions, apply for public benefits, engage in active decision-making at care facilities, and make educated decisions.
Alternatives to Conservatorship
While conservatorships may be necessary for some situations, proper planning can avoid the need to engage in what is often an adversarial and daunting process. A lawyer can help families, and potential wards or conservatees, determine whether an alternative is a viable option. Further, a Brentwood lawyer can help individuals create estate plans that may eliminate the need for a conservatorship.
Estate planning covers a wide range of topics, including powers of lawyers, trusts, and wills. These documents can eliminate confusion, stress, and unnecessary litigation if the person making the estate plan becomes incapacitated or dies.
A will is a common document included in estate planning. Tennessee wills must be signed without coercion and in the presence of a witness. The person who makes the will (testator) may add to it as long as they maintain the capacity to do so. After the testator passes, the will must go through Tennessee’s probate process. The probate court will determine the will’s validity and address any disputes.
Trusts are another legal instrument that can avoid the need for a conservator. A valid trust is a legal instrument that lets the owner (grantor) maintain assets while placing ownership of them in a trust. After the grantor’s death, the court can transfer the assets to their beneficiaries of choice.
Powers of Attorney
One of the most critical aspects of an estate plan is the powers of attorney. These documents can help individuals avoid the need for lengthy and costly conservatorship proceedings. The two primary powers of attorney are financial and healthcare. A power of attorney allows an individual to name an agent of their choosing to oversee their financial or medical matters in the event they cannot do so themselves.
How Do Conservatorships Work in Tennessee?
A court must engage in a detailed evidentiary analysis before determining whether a conservatorship is necessary. First, the court must find that the potential ward has a disability, and a conservatorship is the “least restrictive” method to protect the individual. The court must also determine whether it is in the ward’s best interest to appoint a conservator.
If the person with a disability has designated a healthcare agent in writing, the court will prioritize that person when deciding who to appoint. If the designation does not exist, the court must evaluate potential conservators in a hierarchical order.
The court will first look at the ward’s spouse, then their adult child, or next of kin. If those options are unavailable, the court will look to the district public guardian or anyone willing and able to do the job who is appropriate for the position.
If the court appoints a conservator that is simply available, it must explain why no one higher on the list can fulfill the role.
Conservator’s Responsibilities in Tennessee
In Tennessee, conservators must make decisions in the ward’s best interest. Further, conservators must file annual reports with the court. The two primary reports are the annual status and financial reports. An attorney can assist conservators in retrieving the forms and filling them out appropriately.
Filing for a Conservatorship
Filing a conservatorship in Brentwood, Tennessee, requires extensive knowledge of the state’s complex procedural and evidentiary rules. In Tennessee, conservatorship actions can be brought in any court exercising probate jurisdiction. A lawyer can advise individuals on where the actions should be filed.
Additionally, you will need to gather certain information to get the conservatorship process started.
Documents Needed to Start the Conservatorship Process
Courts take conservatorships very seriously because they effectively remove someone’s ability to make important decisions about their own lives. Thus, before a judge even considers granting a conservatorship, you must gather all the necessary documentation and information to present to the court. To do this, you file a petition of conservatorship in the county probate court where the disabled party lives. Documents and information you’ll need when completing a petition for conservatorship include:
- The name, address, and birthdate of the person subject to the conservatorship proceeding (conservatee);
- A description of the conservatee’s disability that makes a conservatorship necessary;
- The name, birthdate, and address of the person filing the conservatorship petition;
- A description of the relationship between the person filing the petition and the conservatee;
- A description of any criminal convictions of the person filing the petition for conservatorship;
- The name and address of the potential conservatee;
- An enumerated list of rights that the person filing the petition would like included in the conservatorship;
- The name of the potential conservatee’s doctor;
- A statement from a doctor including their professional opinion about the potential conservatee’s ability to make decisions on their own behalf (or a statement from the conservatee indicating their lack of consent to an examination);
- A detailed list of the assets included in the potential conservatee’s estate; and
- A request for the court to appoint a guardian ad litem or co-conservator to handle special situations that may be beyond the understanding of the conservator.
Notably, if you file a petition for conservatorship but do not intend to serve as the conservator, you must also include the following information about the person that will serve as the conservator:
- Relationship to the conservatee, and
- List of criminal convictions.
Those looking for assistance in obtaining the information necessary to file a petition for a conservatorship should reach out to a Brentwood conservatorship attorney at Batson Nolan PLC.
Contact Our Brentwood Conservatorship Lawyer
If you need help navigating the conservatorship process or looking for ways to avoid the potential for conservatorship proceedings in the future, contact Batson Nolan PLC for immediate assistance. Our experienced attorneys have over 160 years of experience working with individuals and families throughout conservatorship and guardianship proceedings.
We represent and advise conservators as well as people in conservatorships. We also have a dedicated team of estate planning attorneys ready to assist you with any other estate planning or long-term care planning needs your family may have. To learn more and schedule a free consultation with the Brentwood conservatorship lawyers at Batson Nolan PLC, call one of our offices. You can also connect with us through our secure online contact form.