What happens when a loved one doesn’t plan for the future? What do you do if suddenly a loved one can no longer make decisions for himself or herself?
Mental illness, dementia, a sudden stroke, an accident, or a disability may leave a loved one unable to manage his or her own life. If he or she has not planned ahead, refuses, or lacks the capacity to take necessary steps to turn over legal, financial, and health care decisions to a more capable person, a conservatorship may be the only remaining option.
In Tennessee, there are two types of conservatorships – for the person and for the property. In a conservatorship of the person, the conservator is appointed by the court to make life and healthcare decisions for the conservatee, i.e., where the person lives, whether they drive, medical procedures, etc. In a conservatorship of the property, a court appoints a conservator to manage the conservatee’s money and property and pay their bills. Sometimes the court will appoint one person to serve as both the conservator of the person and of the property, but this is not always the case. Most of the time, the conservator is the spouse, child, or close relative, but if none of these persons are willing or suitable, the court may appoint an attorney or professional fiduciary.
Only a court can create a conservatorship. The court appoints a conservator, and the conservator’s authority is set out in the court’s order. A petition to have a conservatorship established requires an affidavit from a doctor that the conservatee is unable to manage his or her affairs. The court also typically appoints a guardian ad litem to investigate the situation and determine if a conservatorship is in the best interest of the proposed conservatee. In addition, a conservator will have to post a bond and file periodic accountings with the court. Finally, a conservator cannot have any type of criminal conviction or have filed for bankruptcy.
Once a conservatorship is established, the conservator must report to the court periodically about how the conservatee is doing and submit financial accountings for approval. Any large or out of the ordinary financial decisions may have to be approved by the court in advance.
At Elder Law of East Tennessee, we can assist you in determining if a conservatorship is needed and help you file the paperwork with the court to establish and manage a conservatorship. It can be a complicated process, and we are here to help every step of the way.