The Most Common Conservatorship Questions and Answers
When is a conservatorship needed?
A conservatorship is needed when an individual is no longer able to make their own medical and/or financial decisions and that individual does not have a power of attorney or the power of attorney is abusing their power.
Why can't my loved one just sign a power of attorney instead?
To sign a power of attorney (or any legal document), an individual must be competent. If an individual is not capable of making their own medical and/or financial decisions, they most likely are not competent to sign a power of attorney.
What powers does a conservatorship give?
A conservatorship gives you the power to make medical and/or financial decisions for the person in need. The extent of your powers will ultimately be determined by the judge, but here are a few examples:
- Apply for benefits (e.g., social security; VA benefits; Medicaid; government assistance)
- Gain access to the individual’s income to pay their expenses
- Select which medical facility or nursing home will care for the individual
- Decide what medical treatment the individual will receive
What does the conservatorship process look like?
To file a conservatorship action, a petition must be filed in court along with certain required supporting documents. In a non-emergency conservatorship matter, the court will review the filings and set a hearing date. In a nutshell, in order for the conservatorship to be granted, one must prove that the individual at issue is in need of a conservator and there are no less restrictive alternatives. There is typically only one court hearing involved with a non-emergency conservatorship action.
The process for an emergency conservatorship is more involved. First, filing an emergency petition is proper when the circumstances are so bad that the individual may be harmed if the court does not act quickly. For example, an emergency petition is proper when the individual at issue is being abused or neglected by his or her caretakers. Emergency conservatorship actions typically have two hearings.
When the court is presented with an emergency petition, the court takes immediate steps to appoint a conservator (instead of waiting until the hearing like in non-emergency cases). The court then schedules a hearing within 5 days to make sure the appointment of the emergency conservator was proper. The second and final hearing will be set at a later date to appoint the permanent conservator (who may be someone different than the emergency conservator).
Who can file for a conservatorship?
Anyone can file a conservatorship action, even if they have no interest in being the actual conservator. It is also pretty common for medical facilities to file conservatorship actions.
If I file the conservatorship action, does that mean I have to be the conservator?
No. The court will decide who the most appropriate person is to serve as the conservator. Tennessee law gives a preference to family members especially when it comes to making the individual’s health decisions. However, anyone who has ever been convicted of a crime (misdemeanor or felony) is not eligible to serve as a conservator regardless of how long ago the crime occurred. Recently, courts have become interested in whether a potential conservator has ever filed bankruptcy when that potential conservator is seeking the right to manage the financial affairs of the individual in need.
In circumstances where there is no one who wants to serve as the conservator or there is no one who is qualified to serve as the conservator, the court will appoint a local attorney licensed in Tennessee to serve as the conservator.
What if I just want to help my loved one with their medical decisions
without managing their finances or vice versa?
There can be two different conservators – one who makes the financial decisions and another who makes the medical decisions. This is actually a pretty common situation. So, for instance, if an adult child wants to help their parent with medical decisions, the adult child can be appointed as a limited conservator for the purpose of making the medical decisions. If there is not another family member interested and qualified to make the financial decisions, the court will appoint a local attorney licensed in Tennessee to serve in this role.
If I am someone’s conservator, am I legally responsible for that individual’s actions?
Many people I encounter are hesitant to file for conservatorship because they are concerned about this very issue. Fortunately, the conservator is not responsible for the individual’s actions. As a result, if the individual injures someone else (e.g., in a car wreck), acquires a large amount of debt or commits a crime, the conservator is not responsible. This, of course, means that the conservator’s personal assets are not at risk based solely on actions taken by the individual in need.
Can I be the conservator if I don't live in the same area as the individual in need?
Based upon my experience in this area, it is unlikely that the court will allow an individual who lives far away to serve as the sole conservator for an individual in need. Conservators may often be needed at moment’s notice to make a medical decision for the individual in need. Many medical facilities require the conservator to appear in person for these issues. If you live far away, this would interfere with your ability to be present and may result in harm to the individual in need.
I have, however, been involved in cases where the court permitted an adult child who lived in another state (e.g., New York) to be the co-conservator with a sibling who lived in Tennessee since the in-state sibling could be present at the nursing home to make decisions.
How can I prepare in advance for these types of situations.
Consulting with an estate planning attorney such as Amanda Jelks can help you and your family to be prepared in advance for scenarios in which you or your loved ones may no longer be able to make their own medical or financial decisions.