When faced with providing care for individuals who suffer from mental illness, dementia, or physical or developmental disabilities, some families and friends find that their loved ones are not capable of making good decisions for themselves. The loved one may be unable to manage his or her own life, yet he or she may refuse or be unable to take necessary steps to turn over legal, financial, and health care decisions to a more capable person. In this situation, conservatorship may be the only option to protect the vulnerable loved one from financial predators or from care choices which endanger his or her health.
Conservatorship (also known as “guardianship” outside of Tennessee) is a court procedure by which an adult’s legal rights are removed due to his or her inability to make sound legal, medical, and financial decisions for him or herself. A court-appointed person or organization is assigned to manage the conservatee’s finances, care, or both. Conservatorship must be court-ordered and is based on medical proof, such as physical or psychological evaluations, as well as lay witness testimony describing the individual’s inability to care for him or herself. 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 to serve as conservator. The court can, and often does, set reasonable fees to compensate the conservator for services rendered.
Though sometimes necessary, obtaining conservatorship is not an easy process. The interested party is essentially suing the incapable person. The process can be adversarial, expensive, and public, not to mention time-consuming and emotionally draining. And getting the conservatorship set up is only the beginning. The legal proceedings will typically continue for the duration of the conservatee’s life. There are many challenging dynamics to consider, and the would-be conservator needs to be prepared to implement a well-developed plan as soon as the court makes a decision.
Avoiding conservatorship is one of the many reasons for individuals and families to plan ahead and get essential estate planning documents in place before there is an imminent medical need. Waiting until the care or financial crisis — such as the onset of dementia or even a sudden car accident — sets up the whole family for a lengthy and costly conservatorship process. But if Powers of Attorney for finances and health care are already in place, the family may easily avoid conservatorship and step in to assist with decision-making as soon as their loved one has a need. Now is the time to start having conversations with your spouse, your aging parents, or your adult children about setting up your legal plan to avoid conservatorship in the future. Even if you think it may be too late — for instance, if a loved one is already showing early signs of dementia — give us a call. Our attorneys can help determine whether the person can legally sign the documents they need and can recommend the least costly approach to helping your loved one get the care and assistance they need.
