Protecting Your Loved Ones With A Conservatorship As They Age Or When They Are Disabled

A conservatorship is a legal proceeding to help and protect an individual (Ward) who, for mental or physical reasons cannot manage his or her personal or financial affairs. Conservatorships are most often used to care for aging relatives, but they can also be appropriate for people suffering from temporary disabilities from illness or accident, as well as those of any age who are physically, mentally, or emotionally unable to care for themselves and/or make decisions for themselves.

Establishing a Conservatorship

You must file a Petition with the appropriate court and:

1. Provide a sworn medical examination report from the Ward's doctor or psychologist (from an exam no more than ninety (90) days prior to the filing), setting forth the Ward's medical history, the nature and type of his or her disability, the doctor's or psychologist's opinion as to whether a conservator is needed, the type and scope of conservator needed, the reasons for the recommendation and any other pertinent matters. If the Ward refuses to be examined, a statement to that effect must be included in the Petition along with a request that the court order him or her to submit to an examination.
2. Provide the names, addresses, and relationships of the Ward's closest relatives, and the name of the person or institution with whom the Ward is residing. Notice of the petition must be given to the Ward's spouse, children, parents, and siblings.
3. Provide the name, age, residence and mailing address of the proposed conservator and his or her relationship to the Ward. If you propose someone other than yourself, you must provide a signed statement from the proposed conservator acknowledging that he/she has been told about the petition and is willing to serve.
4. List the rights that you feel should be taken away from the Ward to protect him or her.
5. If you ask the court for the right to manage the Ward's property, you must also include:
   1. A list of all of the Ward's property and the approximate fair market value of each asset. You must also state whether that is ALL of the Ward's property;
   2. A list of the source, amount, and frequency of each source of the Ward's income;
   3. A list of the Ward's monthly expenses and how they have been paid in the past; and
   4. A proposed plan for managing the Ward's property, if the conservatorship is granted.

In the event you do not have all of the Ward's financial information, you can ask the court to enter an order allowing you to investigate his or her resources.

Persons who can be Conservator

The order of preference for conservator is:

• Any person the Ward has designated in writing as the person he or she wants to serve as conservator;
• The Ward's spouse;
• The Ward's child;
• The closest relative of the Ward; or
• Any other person.

Appointment of a Guardian Ad Litem

Once the petition is filed, the court will appoint an attorney to act as guardian ad litem for the Ward to impartially investigate the case, determine the facts, and report them to the court. The guardian ad litem is not an advocate for the Ward, but it is his or her responsibility to determine what is best for the Ward.

Rights that can be Removed from the Ward and Transferred to the Conservator

1. The right to vote;
2. The right to dispose of property;
3. The right to execute instruments;
4. The right to make purchases;
5. The right to enter into contracts;
6. The right to hold a valid Tennessee driver's license;
7. The right to give or refuse consent to medical and mental examinations, treatment and hospitalization; or
8. The right to do any other act of legal significance that the court deems necessary or advisable.

Rights the Ward will have After the Petition is Filed

The Ward will have the following rights:

1. To demand a hearing on the issue of his or her disability;
2. To present evidence and to confront and cross examine witnesses;
3. To appeal the court's final decision if he or she disagrees with it;
4. To attend all hearings; and
5. To have an attorney ad litem appointed to advocate his or her wishes (which may not be the same as his or her best interest).

Conservator's Duties

Because conservators have unusual legal power over the Ward and/or his or her property, the court will monitor the conservator's actions closely.

1. The conservator will most likely have to post a bond to secure faithful performance of the obligations.
2. The conservator must act in ways that are in the Ward's best interests at all times. As a fiduciary, the conservator cannot use his or her position for his or her own benefit.
3. The conservator must seek court approval before selling/transferring certain assets or paying certain kinds of expenses.
4. The conservator must file an annual, detailed accounting with the court showing:
   1. All the transactions performed with the Ward's resources and how that was of benefit to the Ward; and
   2. Whether there is a continued need for the conservatorship.
5. If the estate is sufficiently large, the court may approve a fee for the conservator's services.

Who Pays for all of This?

You will need to hire and pay for an attorney, initially. If the court grants the conservatorship, then the expenses will likely be paid out of the Ward's resources. If you are the spouse, joint funds may be used for legal expenses. If no one contests the conservatorship and the guardian ad litem finds you to be an appropriate person to act as conservator, then the expenses will likely be relatively minimal.