Conservatorships for Elderly or Mentally Challenged Individuals

In this era of scattered families, the people who are mentally marginalized due to age, substance abuse or mental disabilities are often left in a vulnerable position to be taken advantage of by third parties of unscrupulous family members. It is common for a young family member to be living with a grandparent to be taking money from the elder, using their credit card or having a parade of their friends in the house who may take advantage of the senior or mentally disabled individual. As one social worker put it “these people may as well have a target drawn on their backs.”

Fortunately, the state of Tennessee has laws that can protect such individuals. The conservatorship laws are quite specific and do an effective job of protecting the financial and healthcare interests of people with diminished capacity. It is not a matter of just getting one individual appointed to look after the ward, but the court will actually oversee what is going on in the individual ward’s financial life through appointing a third party attorney to review the individual’s financial and home situation when a guardianship petition is filed, monitoring the expenses paid on behalf of the ward each year and having laws in place that make the appointed conservator go back for court approval when expenditures on behalf of the ward are made in excess of $1,000.00. 

A conservatorship is initiated by filing a petition with the probate court of the county where the ward lives stating that the person is an individual who is in need of assistance with their financial and healthcare needs (or it may be that they are only in need of assistance with one or the other). An affidavit of the personal physician or a physician who has examined the ward within the last ninety days is normally attached to the petition stating that due to certain conditions the subject of the petition is in need of the court’s oversight. If the situation is one of an urgent nature, the court can usually hear the petition on an emergency basis within a few days. The petitioner (the individual who filed the petition) will usually be appointed the temporary conservator if they want to so serve and can qualify for a bond. 

The petitioner doesn’t have to serve as the conservator. There are non-profit agencies which can be appointed to serve as the conservator (Fifty Forward offers such a service in Nashville, as does Guardianship and Trust). These agencies will charge an hourly fee to manage the finances and healthcare needs of the ward. In some cases it is best to have a third party manage the needs of the ward due to family conflicts or parent/child dynamics. If there is no one else to assist the ward, in Nashville, the public conservator (who is an attorney) can be appointed as the conservator. Annual reports must be made to the court and an annual accounting (like a check register with the copies of check attached), must be approved by the Court’s Clerk and Master. If a house has to be sold, the court must approve the sale and the changing over of assets from one form (investments) to another (liquid funds).

The reporting requirements are not onerous and in this age of banking on line and low cost telephonic (or video) communications, it is not hard for a remote relative to be able to take care of their relative’s needs from a far location. It may be more desirable to have someone who can see the ward more than a few times a year, but someone removed from the situation can often be the best evaluator of needs from a slightly detached perspective. 

This process is not inexpensive, the initial filing will be about $300.00. The attorney’s fees for drafting the petition and meeting with the petitioner will be on an hourly basis. A guardian ad litem (also usually an attorney) will ordinarily be appointed to inform the court of the situation of the ward and to recommend whether a conservator should be appointed. Tennessee law provides that these fees may be reimbursed from the ward’s funds if a conservator is ultimately appointed. If the ward wants representation that attorney’s fees will also be charged to the ward’s funds. These expenses can add up pretty quickly to thousands of dollars. 

It is best to get everyone in the family on board with the process in order to minimize the expenses. If old unresolved family issues are going to encumber the process, the family may want to consider a mediation prior to going forward with the conservatorship in order to avoid an interfamily battle. The process can go forward even if someone else holds the power of attorney for the individual if the fiduciary is not acting in the best interests of the ward. 

An individual can best be served sometimes only by a conservatorship which is overseen by the court. The conservatorship can be brought by interested non-family members as well as family.

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McCracken Kuhn Marks PLLC

McCracken Kuhn Marks PLLC was founded by Attorneys Joanna McCracken, Irwin Kuhn, and Demi Marks with the goal of approaching family law in a new and innovative manner.

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