Next Friday, April 21st, Katie King and I will do a presentation on the Art of Negotiation for Female Entrepreneurs at the monthly luncheon for Women Mean Business at the Marriott Downtown. RSVP here to join us for a presentation you won't want to miss!
In honor of Help4TNDay, several legal clinics are being held in the Chattanooga area over the next few weeks to provide legal services to individuals who could otherwise not afford them. Click here for the exact dates and times of the clinics.
Over the last few weeks, I have worked with several new business owners who have fallen victim to companies who are charging them to obtain their Employer Identification Number (EIN) from the IRS. These business owners have paid as much as $130 to companies online to apply for the EIN and, ultimately, the business owners never receive their EIN. Not only are those business owners losing the money they paid for the EIN, the business owners are also providing those companies with their personal information (including their social security number). The IRS does not charge a fee to obtain an EIN. As such, business owners can either apply for their EIN themselves or pay a reputable accountant or attorney a small fee to apply for the EIN on their behalf.
For the last six months, millions of workers and employers alike have been preparing for the new overtime rule set to go into effect on December 1, 2016. At its core, this rule would have required employers to pay overtime pay to salaried employees making up to $47,476; thereby, doubling the original overtime pay threshold amount.
Yesterday, this rule came to a screeching halt when a federal judge, in Texas, sided with 21 states and temporarily suspended the rule pending further review. U.S. District Court Judge Amos Mazzant determined that the Department of Labor does not have the authority to expand the overtime rule in the manner it has attempted to do so. Although the Judge’s suspension of the rule is not final, the Judge has already stated that the 21 states who oppose the rule are likely to win at the final hearing on this matter.
Read the Judge’s order in its entirety here.
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 10 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.