Although we have discussed familiar situations that may trigger the need for a conservatorship, the process of securing one can be difficult. Due to the oftentimes burdensome process of securing a conservatorship through the courts, many individuals use common estate planning tools to ensure a conservatorship is only a last resort.
Having incapacity documents in place that provide a trusted family member or friend with direct authority to act on your behalf not only avoids the conservatorship process, but also allows your loved ones to have a better sense of your personal wishes if you are rendered unable to make certain decisions on your own behalf. As is often the case, however, if there are no incapacity documents in place or they are out of date, if someone becomes incapacitated the family must go to court to seek a conservatorship.
When seeking a conservatorship in Tennessee, a petition laying out certain facts must be filed with the court. Evidence must be provided to the court which, when taken into consideration by the judge, classifies a person as “disabled” and further shows that appointing a conservator is not just beneficial, but also the “least restrictive alternative” (Tenn. Code Ann. §34-1-127).
The court will consider sworn medical examinations, financial records, and even witness testimony when considering whether or not to grant a conservatorship. The court also has the discretion to decide whether a fiduciary can be appointed and if so, what control and authority the individual appointed is to be granted. Due to the authority and power such a person is granted over another person’s well-being, one can imagine the reason why the conservatorship process is so intricate.
Gathering all of the information, and convincing a court that a conservatorship is essentially the only option left for a loved one is not an easy process to attempt without professional legal guidance. However, with proper legal guidance, it can be done and can allow a family to ensure that their loved one’s well-being is being considered regarding important financial and healthcare decisions. Keep in mind that conservatorships are not just for disabled elderly individuals, but can also come into play when the court is asked to make an assessment in relation to the needs of a minor, a topic we will discuss in our next post.