March 10, 2021
By: Tricia Tweel
While this writer has no first-hand knowledge of Ms. Spears’ Conservatorship and is expressing no opinion regarding it, Conservatorships remain a vital judicial tool that, when used appropriately, are a tremendous help to families who have a family member with a disability. This blog post provides an introductory overview of Conservatorships under Tennessee law.
What is a Conservatorship?
A Conservatorship is a legal proceeding in which a Tennessee court appoints a Conservator for a “person with a disability.” A person with a disability is defined as an adult person 18 years of age or older determined by the court to be in need of partial or full supervision, protection, and assistance by reason of mental illness, physical illness or injury, developmental disability, or other mental or physical incapacity. Once placed under a Conservatorship, the person with a disability is usually referred to as the “Ward”.
What are the types of Conservatorships?
There are two types of Conservatorships under Tennessee law:
1. Conservatorship of the Ward’s Person, and
2. Conservatorship of the Ward’s Estate.
Depending on the specific circumstances, the Court may place the Ward under a Conservatorship of the Ward’s Person only, a Conservatorship of the Ward’s Estate only or a Conservatorship of the Ward’s Person and Estate.
Who serves as the Conservator?
The Court may appoint one or more individuals or an entity to serve. The roles can be bifurcated, with one or more individuals or an entity serving as Conservator of the Ward’s Person and one or more individual or an entity serving as Conservator of the Ward’s Estate.
In most cases, the Court appoints a Ward’s family member to serve as the Ward’s Conservator — either the spouse or adult children of an elderly Ward or the parents of a young adult Ward. However, in highly contentious Conservatorships (family members fighting over control of an elderly Ward and the Ward’s assets) or when the Ward has no family available or willing to serve, the Court may appoint an independent entity, such as a bank or a trust company, to serve as Conservator of the Ward’s Estate and an independent eldercare agency to serve as Conservator of the Ward’s Person.
What is the effect of a Conservatorship?
All Conservatorships result in the Court removing certain rights from the Ward and vesting those rights in the Conservator. The rights removed may include the Ward’s right to make medical care decisions, living arrangements, to contract, to make purchases, the right to drive a car, the right to dispose of property and the right to handle financial decisions.
Tennessee law requires the Court to ensure the Ward is under the least restrictive Conservatorship available that preserves the Ward with as many decision-making rights as practical under the circumstances.
Why would someone need a Conservatorship?
There are many reasons a Conservatorship would be needed. Common situations include:
1. A child with a mental disability reaching the age of 18, the age at which law considers the child to be an “adult.”
2. An adult without durable power of attorney for finances or healthcare in place who becomes incapacitated, due to an acute brain injury, such an accident or a stroke, or medical infirmary such as dementia.
3. An adult who, despite having durable power of attorney for finances or healthcare in place, is susceptible to being financially taken advantage of by others.
What oversight measures are in place for Conservators?
The Court maintains oversight over each Conservatorship. For example, a Conservator of the Estate must pay bond and file property management plans and annual accounting with the Court. A Conservator of the Person may not change the Ward’s domicile without the Court’s consent.
Do Conservatorships end?
Most Conservatorships stay in place for the Ward’s life. However, if a Ward regains capacity, the Conservator or the Ward may file something with the Court to remove the Conservatorship.
Are Conservatorships kept secret?
Unlike Ms. Spears’ Conservatorship, which is “under seal,” most Conservatorships in Tennessee are not under seal and are accessible to the public. There must be a compelling reason for the Court to place a Conservatorship under seal.
Establishing a Conservatorship is not taken lightly, as removing certain individual rights has tremendous legal and personal significance. However, under certain circumstances, a Conservatorship may be the only option available to protect a person with a disability.
Our probate attorneys understand the emotional weight of establishing a Conservatorship and can help you navigate the process with more in-depth legal guidance. Contact Harris Shelton today to learn more.