Conservatorship

When faced with providing care for individuals who suffer from severe mental illness, advanced forms of dementia, or grave physical or developmental disabilities, some families and friends find that their loved ones are not capable of making good decisions for themselves. Family members or friends may be in a difficult position because their disabled or ill loved one is unable to manage his or her own life, yet he or she refuses to take the steps necessary to turn over legal, financial, and health care decisions to a more able person. In this situation, an individual may choose to pursue Conservatorship for his or her loved one.

Conservatorship is a procedure by which an adult's legal rights are turned over to another person or an organization due to the individual's inability to make sound legal, medical, and financial decisions for him or herself. Conservatorship must be court-ordered and is based on medical proof, such as physical or psychological evaluations, of the individual's inability to care for him or herself, as well as lay witness testimony about how the person is functioning and what problems he or she is having. The individual for whom the Conservatorship is ordered is referred to as a "Ward" or "Conservatee," and the person or organization named to manage decisions is called the "Conservator." Any interested party (not just a relative) can petition the court for Conservatorship; the court may appoint a Public Guardian, friend, neighbor, church member, attorney, social worker, nurse, or other qualified individual. The court can, and often does, set reasonable fees to compensate the conservator for services rendered.

The type of Conservatorship pursued by the family and ordered by the court varies depending on the individual's circumstances. A Conservator of the Person may be responsible for handling placement in long-term care facilities, making medical decisions, and overseeing treatment. A Conservator of the Estate may handle duties associated with assessing, protecting, and managing the Conservatee's assets. In many cases, a single Conservator simultaneously fills both roles, managing both the individual and his or her estate. Both types of Conservator report to the appointing court and are monitored by the judicial court in the county of the Conservatee's permanent residence.

A Conservator's authority over the Conservatee is limited by the court appointment. Recently there has been a movement toward allowing the Conservatee to retain as many individual rights as possible. Ideally the individual will be able to remain involved in making decisions for him or herself, but this is not always possible. While Conservatorship does remove from the Conservatee certain rights, its purpose is to ensure that the individual is not exploited, neglected, or abused and that the individual receives the best care possible to enjoy a better quality of life than he or she would without the Conservatorship.

Though sometimes necessary, obtaining Conservatorship is not an easy process. The petitioner is suing the respondent in open court. The process is adversarial, expensive, and public, and the outcome of the petition is uncertain. Getting through the legalities is only the beginning. If the Conservatee was difficult prior to Conservatorship, he or she is unlikely to become compliant just because the court has said someone else is now in charge. There are many dynamics to consider, and the would-be Conservator needs to have a sound plan prepared and to be ready to implement that plan as soon as the court makes a decision.

If you think your loved one needs a court-ordered Conservatorship, or if you wish to contest a filing for Conservatorship, Elder Law of East Tennessee can help. We are experienced in helping families through the Conservatorship process, and our many years of experience in Elder Law and Geriatric Care Management qualifies us to serve as Conservator. Our elder care coordinator, Connie Taylor, is a National Certified Guardian. Get in touch by phone or e-mail to get started today.