Although most of us prefer not to acknowledge it, the reality is that as we age so do our parents. Watching a parent succumb to the physical and mental deterioration that often goes hand in hand with aging can be difficult. If a parent reaches a point at which he/she cannot make decisions or safely care for himself/herself, it may be necessary to become your parent’s conservator. If you feel you are at that point, knowing what is involved in the adult conservatorship process is crucial to deciding how to proceed. With that in mind, a Murfreesboro family attorney at Bennett, Michael & Hornsby explains how you become your parent’s conservator in Tennessee.
Is a Conservator Necessary?
Deciding when it is time to consider conservatorship is never easy; however, as the older population in the United States grows dramatically, the need for conservatorship increases as well. By the year 2030, one in five Americans are projected to be 65 years old. While age alone does not indicate the need for a conservator, it does increase the likelihood. According to the ABA, a senior may need a conservator (also referred to as a guardian in other states):
- When they can no longer manage their affairs because of serious incapacity, and
- No other voluntary arrangements for decision making and management have been set up ahead of time, or if they have been set up, they are not working well, and
- Serious harm will come to the individual if no legally authorized decision maker is appointed.
The ABA goes on to say “A decision to seek guardianship (or conservatorship) should never be based on stereotypical notions of old age or handicaps. A person has the right to make foolish or risky decisions. These decisions by themselves do not mean that the person lacks capacity. A competent person chooses to run risks. An incompetent person runs risks not by choice, but by happenstance.”
What Is Conservatorship in Tennessee?
In the State of Tennessee, conservatorship proceedings are governed by Tennessee Code § 34-1-101 et seq. which defines conservatorship as “a proceeding in which a court removes the decision-making powers and duties, in whole or in part, in a least restrictive manner, from a person with a disability who lacks capacity to make decisions in one or more important areas and places responsibility for one or more of those decisions in a conservator or co-conservators.” A person with a disability is defined as “any person eighteen (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.”
What Type of Conservatorship Is Warranted?
If you are considering conservatorship over a parent, you will need to decide which type of conservatorship is warranted. Conservatorship of the person will give you the legal authority to make personal decisions for your parent, such as where he/she will live and which doctors will provide medical treatment. Conservatorship of the estate gives you the legal authority to do things such as control your parent’s assets and make financial decisions on behalf of your parent. You can be both the conservator of the person and the estate. The court may also grant you limited conservatorship of either or both by specifying what decisions you can make and/or what assets you can control.
The Conservatorship Process in Tennessee
Because the law considers conservatorship to be the most restrictive option, the decision to appoint a conservator is not made lightly by a court. On the contrary, petitioning for conservatorship can be a lengthy judicial process, particularly if someone opposes the appointment of a conservator and/or the choice of conservator.
To begin the process, you must file a petition in the appropriate probate court. That petition must be served on your parent and other close family members, all of whom have the right to oppose the petition. Before filing the petition, you should consult with an experienced family attorney to make sure you have the documentation necessary to support the petition. This may include things such as a medical diagnosis, financial statements, physician statements, and/or testimony from family members and close friends. Typically, after the petition is filed the court will appoint a Guardian Ad Litem whose job is to consider the best interests of the proposed ward (your parent in this case) and make a recommendation to the court.
Expect the court to schedule a hearing at some point. At the hearing you will need to provide sufficient evidence to convince the court that appointing a conservator is the only way to keep your parent safe. If other less restrictive options can accomplish the same goal, the court is required to consider those options before granting a conservatorship.
Contact a Murfreesboro Family Attorney
If you have additional questions about conservatorship in Tennessee, it is important that you consult with an experienced Murfreesboro family attorney to discuss your legal options. Contact the team at Bennett, Michael & Hornsby as soon as possible by calling 615-898-1560 to schedule your free appointment.