Estate Planning and Probate

Our firm assists in setting up powers of attorney that allow an individual (i.e. the principal) to select an agent to act on their behalf in the event the principal becomes incapacitated. However, in order to execute a power of attorney, the principal must be over the age of eighteen (18) and of sound mind. So, what happens if an individual is incapacitated and unable to appoint a power of attorney to act on their behalf?

In Tennessee, this issue is addressed in the form of obtaining a conservatorship. A conservatorship is a legal process that allows a person (the “Conservators”) to be appointed by a court to handle the decision-making responsibilities of an individual that is disabled or incapacitated due to the person being unable to make such decisions on their own. Conservatorships are common with aging relatives, temporarily or permanently disabled individuals, and others who are unable to physically or mentally care for themselves.

To be appointed as a Conservator, you must first file a petition in probate court that sets forth several items, including, but not limited to, (1) your intent to serve as Conservator, (2) your relationship to the disabled individual (the “Respondent”), (3) the disability (or disabilities) of the Respondent, and (4) information regarding the Respondent’s finances. The court will also require you to file other ancillary documents including a Report of Physician, Conservatorship Inventory, and Property Management Plan.

Once the opening documents are correctly filed, the court will generally appoint a third party attorney as “guardian ad litem” for the conservatorship. The guardian ad litem’s job is to investigate whether the Respondent is in need of a conservatorship. This is usually done through personal interviews with the respondent, the petitioners, and other family members/friends of the respondent. Once the guardian ad litem makes a determination as to whether a conservatorship is needed, the guardian ad litem files a formal recommendation with the court. The Respondent can also inform the guardian ad litem if he/she wishes to oppose the conservatorship. In the event the Respondent opposes the conservatorship, another third party is appointed by the court to represent the Respondent’s wishes (an “attorney ad litem”). Contested cases can become very complex and difficult for all parties involved.

When the court receives the findings of the guardian ad litem and all other necessary documents, a hearing is held to determine whether the conservatorship is necessary. The court takes several items into consideration, including the findings of the respondent’s physician, the guardian ad litem report, and testimony from the respondent (if able) and the petitioners. Upon hearing all of the evidence, the court will rule whether a conservatorship is appropriate and what specific powers are granted to the conservators.