If your parent, grandparent, or older relative is no longer able to make decisions independently and did not plan ahead and execute a power of attorney, you may be left with a challenging task. You may need to manage your loved one’s financial and legal business, but you don’t yet have the legal authority to do so.
To protect both your loved one and yourself, it is essential to take the necessary legal steps to become your loved one’s conservator or legal guardian.
Any capable adult may serve as a conservator. However, the law gives preference to some people over others. For example, the court may consider a spouse, an adult child, a more distant relative, friend, neighbor, attorney, nurse, or other person known to the individual to serve as conservator. If no one known to the person can serve, the court may appoint a public guardian to serve as a conservator.
The specific duties of a conservator vary but could include paying bills and managing investments. Conservators should keep careful records and may need to file an inventory with the court to justify expenses and other financial decisions.
How to Become a Conservator in Tennessee
A person who is incapacitated or disabled may need a conservator. In Tennessee, an incapacitated or disabled person is defined as an adult who requires supervision, protection, or assistance because of mental illness, physical illness, physical injury, developmental disability, or another mental or physical incapacity. A person is not disabled or incapacitated simply because of a diagnosis. Instead, the court will consider your loved one’s ability to make decisions and to communicate before deciding if your loved one is disabled.
Once you’ve identified the need for a conservator, you must go through the legal process to become your loved one’s legal conservator.
First, you should file a Petition for the Protection of an Incapacitated or Disabled Person with the right court, which is typically the probate court. You must provide evidence of your loved one’s disability before the court can grant your petition. This evidence should include a doctor’s report identifying the need for a conservator.
Second, the court will appoint a guardian ad litem. The guardian ad litem is often an independent attorney who will review all documentation and interview witnesses. Before the court hearing to decide on a conservator, the guardian ad litem will submit a report to the court that recommends approving or denying the conservatorship request. Some guardian ad litems also include recommendations about who should serve as conservator and whether any limits should be placed on the conservator’s authority.
Following the receipt of the guardian ad litem report, the court will schedule a hearing to consider the evidence and decide whether you should become your loved one’s conservator.
The court will grant your petition if it determines that: (1) the individual for whom you seek conservatorship is disabled; and (2) appointing a conservator is the least restrictive alternative to protect the disabled person.
Avoid Potential Problems
Even if you believe your loved one needs a conservator, petitioning the court for this position can present problems. For example:
- Many courts are reluctant to take decision-making authority away from an adult.
- Your loved one may not recognize the need for a conservator and may contest the proceedings.
- Another relative, friend, or physician may contest the proceedings.
- There may be ongoing issues even after you are appointed as conservator.
Contact Luna Law Firm
If you want to be the conservator for your loved one, we encourage you to work with a Tennessee probate lawyer before filing your petition with the court. Contact us today, and we’ll discuss your situation and why you believe your loved one needs a conservator and why you should be appointed. If appropriate, we can gather all relevant evidence, file a petition with the court, and represent you in all court proceedings.