It is heartbreaking to see a loved one lose the ability to care for themselves. In certain circumstances, it may be necessary to secure a conservatorship so that you can legally protect and provide for that person. At Batson Nolan, PLC, our Dover conservatorship lawyers can advise and guide you through your legal options. Contact us today.
What Is a Conservatorship?
A conservatorship is a legal process of appointing someone (the conservator) to manage the affairs of a person who cannot make sound decisions. The court gives the conservator decision-making authority over the “disabled person.” People in conservatorship give up their legal rights but only those that a judge approves.
How Do Conservatorships Work?
The simple version of a conservatorship proceeding is that a person files a petition seeking conservatorship of a disabled person. All parties attend a hearing before a judge, who reviews the evidence. The judge will appoint a conservator if they conclude the following:
- The individual is suffering from a disability and
- A conservatorship is the “least restrictive alternative.”
The conservator receives letters of conservatorship, which state the specific powers they have over the disabled person and those that the disabled person retains.
Let’s take a look at the details of the conservatorship process.
Who Can File a Petition for Conservatorship?
Any person who believes there’s a need for a conservatorship may file a petition.
Who Qualifies As a Disabled Person?
Tennessee law defines a “person with a disability” as someone 18 years of age or older who a court finds is suffering from a mental, physical, or developmental illness or injury, or some other type of incapacity. To prove this, the person seeking conservatorship must submit a physician’s report indicating the need for a conservator to be appointed. Witnesses may also testify as to the person’s disability.
What Are Less Restrictive Alternatives?
Since a conservatorship removes legal rights from a person, the court wants to be sure there are no less restrictive alternatives that will suffice. The goal is to preserve as many rights as practical for the person with the disability. Some examples of less restrictive alternatives are the following:
- Living trust,
- Health care proxy, or
- Durable power of attorney.
The petitioner for the conservatorship must show that these alternatives do not offer sufficient protection.
Who Can Be a Conservator?
Any individual or entity can be a conservator. You do not have to be related to the person with the disability. In general, if the disabled person has designated someone in a living will or power of attorney, the court will give priority to appointing them as the conservator. If no such documents are in place, the next person in line to serve as a family member (spouse or child).
However, the court defers to whatever is in the best interest of the person with the disability. If the family members disagree on who should be the conservator, the court can choose someone unrelated, such as a friend, a lawyer, or a corporate conservator.
What Rights Does a Conservator Have Over the Disabled Person?
In Tennessee, conservatorships can be either full, limited, or temporary.
A full conservatorship is when the conservator has the right to make all decisions for the disabled individual. A limited conservatorship grants the conservator only certain decision-making authority. If the person is expected to recover from their disability, you might seek a temporary conservatorship.
In some cases, the conservator may have the right to make decisions over the person, the property, or both.
Here are examples of powers that the court may grant to the conservator over the disabled person:
- Consent or refuse medical treatment;
- Make end-of-life decisions;
- Apply for public and private benefits;
- Purchase, transfer, and gift real and personal property;
- Enter into contracts;
- Prosecute and defend lawsuits; and
- Determine living arrangements and social interactions.
This list is not exhaustive. As mentioned above, the powers given to the conservator will be explicitly stated in the letters of conservatorship. If they are not, then the disabled person retains those rights.
When executing their powers, the conservator has the duty to act in the best interest of the disabled person.
Can You Change or End a Conservatorship?
Conservatorships may be modified or terminated with court approval. There are two circumstances when this may occur.
First, the court can modify a conservatorship if either the conservator is abusing their authority or if they no longer can or want to serve. Second, if the disabled person no longer has a disability, the conservatorship may be removed. For example, if someone were in a car accident and needed a conservator, the court can end the conservatorship if that person recovers and can adequately function.
The disabled person, or someone on their behalf, must petition the court for termination or modification of the conservatorship.
Do You Need an Attorney to Get a Conservatorship?
There is no requirement to hire conservatorship lawyers to file a petition, but it makes the process easier. A conservatorship proceeding involves submitting paperwork, collecting information, communicating with the court, and meeting strict deadlines. Without a lawyer, not only is it difficult to understand the legal jargon, but it is easy to get overwhelmed. Unfortunately, making simple mistakes can lead to the court dismissing your case.
With the help of Batson Nolan, you do not have to face this complex legal proceeding alone. Our team of knowledgeable conservatorship attorneys has the experience and compassion to help you protect your loved one.
Dover Conservatorship Attorneys at Batson Nolan Can Help
If you’re considering a conservatorship, reach out to our team of conservatorship attorneys. We can assist with completing and filing the initial petition, gathering necessary evidence, and preparing you for the court hearing.
Since 1860, the lawyers at Batson Nolan have been helping Tennessee families. The firm is rated “AV Preeminent” by Martindale-Hubbell, which is the highest peer review rating. This indicates the firm’s professional excellence. Call us or go online to request an appointment.