Conservatorships

SOUTHEAST TENNESSEE LEGAL SERVICES

 

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Although many people believe they will be able to handle their personal and financial affairs throughout their lifetime, this is not always true. Accidents, illnesses, advanced age and other circumstances may cause a person to become unable to take care of his personal and financial matters. Some people are fortunate enough to have advance warning or foresight to plan for the time when they will need help to care for their personal and financial needs. Others, such as accident victims, are not so fortunate as to be able to plan ahead.

For the person who can plan ahead, a durable power of attorney, a durable power of attorney for health care, living will or a living trust arrangement may provide the help they need. If you can plan ahead, it is important to choose the best method for your own particular situation, if you want more information about trusts, review message number #2402 entitled "What is a Trust?".

For the person who has not made advance plans, a court appointed guardianship or conservatorship may be the only way to get the necessary help in caring for personal and financial needs. A conservator or guardian is someone appointed by the court to take care of someone's personal needs or their property when they are not yet adults or have become unable, through age, injury, or illness, to take care of themselves. A court will also appoint a conservator or guardian for someone who is likely to be cheated or taken advantage of by others because of illness or age.

What is the difference between a guardian and a conservator? Guardians are appointed to take care of minors (children under the age of 18) and conservators are appointed to take care of disabled adults. Other than the different terminology, the duties of both guardians and conservators are basically the same. The person who is placed in the care of a guardian or conservator is often referred to as the "ward."

A guardian or conservator may be appointed to take care of someone's day-to-day personal needs - a "guardian or conservator of the person" - or to take care of financial affairs - "guardian or conservator of the estate". A guardian or conservator is most often a family member or friend and, in most instances, will be responsible for both the estate and the person of the ward. If a guardian or conservator is needed just for the estate, a financial institution such as a bank may be appointed.

The conservatorship or guardianship can be a temporary arrangement - that is, a person may be seriously injured in an accident and need someone to care for his affairs until he recovers. It can also be a permanent arrangement - as in the case of a person of advanced age who is unable to continue managing personal and financial affairs.

A guardianship or conservatorship is obtained by filing a "petition" with the court. Anyone can petition the court for the appointment of a conservator or guardian and nominate a specific person or persons to serve as conservator or guardian.

Before a conservatorship can be established for a disabled or elderly ward, the ward must be proven unable to manage their own affairs. If someone is attempting to have a conservator or guardian appointed for you and you feel that you do not want or need a conservator or guardian, you should immediately contact an attorney who can assist you in protesting the appointment. If you do not protest, you may lose important rights and privileges with respect to managing your affairs.

In some instances, the guardian or conservator will be entitled to a fee and the court will decide the amount of money the conservator or guardian will be paid. The court will also set limits on the duties and powers of the guardian or conservator according to the needs of the person for whom the guardian is responsible. The conservator or guardian is required by law, in most cases, to file an annual report of all receipts and all payments on behalf of the sick or disabled person.

A conservatorship or guardianship may not be the best solution for every case. A living trust, power of attorney or other arrangement may be better. The problem with other arrangements, however, is that a disabled person may not be legally competent to create a trust or other arrangement at the time it becomes necessary.

The important thing to remember is that future difficulties may be avoided by planning in advance for the possibility of disability. One important feature of the conservatorship and guardianship law in Tennessee is that you are allowed to declare in advance, in a written document, who you would like to serve as your conservator or as the guardian for your minor children. If you are concerned with making these types of decisions now, you should consult an attorney for advice on which method of planning will best suit your individual needs.

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