Conservatorship is a legal status granted by a court to a person to manage financial and/or personal affairs for another person. Conservatorships are typically used to give a family member or close friend the legal authority to make legal decisions on behalf of someone with a disability. This may include a special needs adult child, a person living with dementia, or other medical conditions that impact day-to-day life., etc. The person granted the conservatorship is known as the conservator, and the person whose affairs are managed is called the conservatee. (You may also see them referred to as the “ward” or “respondent” in a legal context.)
Conservators are appointed for many reasons, including a variety of medical conditions, inability to recognize fraud, or if a power of attorney document is invalidated or abused. With great ability comes great accountability, so it’s important that conservators carefully adhere to their legal obligations. Conservatorship is overseen by the courts, so transparency and accountability are vital. A conservator can hold extensive legal power concerning the conservatee’s financial and personal life.
Types of Conservatorship
There are multiple options for establishing a conservatorship, and each one impacts what that conservator or conservatee is responsible for and capable of doing after a conservatorship is granted. The semi-recent dispute between Britney Spears and her father brought to light everything that can go wrong in a conservatorship. If you wondered about what type of legal proceeding Britney was involved in, below is a list of different types of conservatorship. At one point or another, Britney was involved in each of them under the California case.
Here’s what the equivalent cases look like in Tennessee:
Conservatorship over the Person: In a conservatorship over the person, the conservator has complete control over the conservatee’s health and physical life, including healthcare and living arrangements. This includes deciding what treatments the conservatee undergoes, whether they’re placed in a care community, etc.
Conservatorship over the Property: In a conservatorship over the property, the conservator has complete control of the conservatee’s financials, including bill payment, day-to-day cash flow, and management of all financial accounts. When this type of conservatorship is granted, the conservatee only has access to their financial accounts with authorization from the court.
General Conservatorship: A general conservatorship is comprehensive, giving the conservator complete control of the conservatee’s person, property, and all other significant life decisions. This is the type of conservatorship that is appropriate for most families.
Traditional Conservatorship: Traditional conservatorships are expected to last for the lifetime of the conservatee. Terminating a traditional conservatorship can occur if a conservatee can legally prove they no longer need assistance. In fact, the conservator has a duty to notify the Court if assistance is no longer needed under the requirement that a conservatorship should be the “least restrictive alternative” able to protect and provide for the conservatee.
Emergency Conservatorship: An emergency conservatorship is limited to a time period of 60 days for the purpose of addressing urgent or specific needs of the conservatee during a short period, for example if someone had immediate injuries from an accident but was expected to recover. It is not unusual for these types of conservatorships to be used while the urgent matter is resolved and then converted into a traditional conservatorship.
Establishing a Conservatorship
The first step involves discussing your situation with an attorney who practices probate law in your area. Based on your understanding of your loved one’s condition, the attorney will be able to discuss your options. If they recommend that a conservatorship is appropriate, they will then walk you through which type of conservatorship would be best and next steps.
Once you hire an attorney, the next steps usually involve obtaining medical proof of the need for a conservatorship, known in Tennessee as a “Report of Physician.” The more medical and financial information you can provide about the intended conservatee, the easier this will make your case (and less expensive!).
The process for petitioning the court for conservatorship can vary depending on the state. An experienced attorney will help you navigate through the complexities of this procedure, providing insight and clarity about legal proceedings.
The Role of the Conservator
Being a conservator requires responsibilities for the well-being of the person under conservatorship. Because most conservators manage both the person and property of the conservatee, this means handling bill payments, making investment decisions, applying for eligible benefits, making healthcare choices, and ensuring their welfare. The conservator’s duty is to act in the best interest of the individual under their care by considering the conservatee’s needs and as well as their preferences when making decisions.
Conservators are expected to adhere to specific guidelines and regulations set by local laws and courts. In Tennessee, conservators are required to file regular updates on the financial and medical status of the conservatee. They also must seek court approval for certain matters, like selling valuables or making big ticket purchases (usually over $500.00). It is essential to maintain records of all transactions concerning the assets and finances of the person under conservatorship.
These duties add a layer of transparency, protection, and accountability, and alert the court to set a conservatorship for review hearing when there are concerns or significant changes to the situation.
To effectively provide support and assistance, conservators must have an understanding of the physical well-being of the individual under conservatorship. Professional evaluations will be helpful in identifying any healthcare needs. When making decisions on behalf of the conservatee, conservators should consider the stated values, preferences, and wishes of the conservatee, but may ultimately have to make a decision that the conservatee is unhappy with.
Understanding the Conservatee
A thorough understanding of the conservatee’s mental and physical health is vital to help determine the level of support and assistance needed. Maintaining an open line of communication with medical providers will help identify specific healthcare needs. If a conservatee has existing healthcare providers, such as a primary care physician, the conservator should begin working with those providers so long as they can work together in the best interest of the conservatee.
Whenever possible, involving the conservatee in decision-making throughout the process can help ensure their dignity and autonomy are respected. In the same way that a ghostwriter is expected to write as the client wishes, a conservator is expected to make decisions that align most with what the conservatee wants and needs. It’s not about the conservator, after all – it’s about ensuring that the conservatee is well cared for.
The Conservatorship Process
To become a conservator in Tennessee, you must first file a petition with the court that handles probate matters in the county where the proposed conservatee lives. This is done through the court clerk. In most Tennessee counties, conservatorships are heard in Chancery Court, although they may also be heard in Circuit Court or General Sessions Court.
Most local rules will require you to work with an attorney to file a conservatorship. Choose an attorney who has experience handling conservatorship matters, who understands your goals, and who is a good personality fit for you. Once the conservatorship is set up, you will continue working with your attorney until the conservatorship is terminated, so it’s good to find someone who you can work with for the long term. Your attorney will collect information about you, your family, and the proposed conservatee in order to prepare the petition. If you have knowledge about the conservatee’s medical and financial situation, you will want to provide that information to your attorney as soon as possible. The court reviews the petition and appoints a Guardian ad litem (or “guardian for the case”) to investigate the facts laid out in the petition. At this point, they will usually set the hearing on the petition for about 45-60 days after the petition is filed.
The Guardian ad litem acts as the “eyes and ears of the Court.” They will interview you, speak with the proposed conservatee, review medical and financial records, and talk to other people who may have information about the situation, such as relatives or neighbors. Their job is to answer two questions. One, does the proposed conservatee need a conservatorship? Two, if a conservatorship is needed, who should serve as the conservator? The Guardian ad litem will make a written report to the Court on these two questions and may also make other recommendations, such as how much an insurance bond should be set for, whether property should be sold, or other matters relating to the appointment of a conservator.
During court hearings, the judge considers all relevant evidence. Judges are only allowed to consider evidence that is considered “admissible,” so your attorney may ask you to help gather certain records depending on what challenges they expect. Remember that the proposed conservatee has certain rights under due process, and may have an attorney appointed for them to challenge the conservatorship if they do not think it is needed. Other family members may also get involved. This is why it is so important to work with your attorney to anticipate and prepare for the hearing.
If the court determines a conservatorship is in the conservatee’s best interest, the judge will enter an Order appointing a conservator. At that point, the conservator assumes the responsibilities and duties outlined by the court and carries them out. Again, they do this keeping in mind the best interest and preferences of the conservatee – even if this means going against what they would personally choose to do in a similar situation.
Managing Finances and Assets
Conservators are responsible for managing the conservatee’s finances and assets. Financial management includes:
Creating a budget that aligns with the conservatee’s needs and resources.
Ensuring all necessary expenses are covered.
Making financial decisions to preserve and grow the conservatee’s assets, including investment decisions.
Ensuring the Well-being of the Conservatee
Conservators play a role in ensuring that the conservatee has access to healthcare and they are empowered to make important medical decisions on behalf of the conservatee. They are responsible for selecting doctors, scheduling appointments, consulting with healthcare providers, advocating for the conservatee’s healthcare needs, and utilizing health insurance and other benefits appropriately.
It is important for conservators to be familiar with the services and resources available to conservatees in their community. These resources may include government assistance programs, support groups, counseling services, and educational materials. By connecting the conservatee with these resources, conservators can promote their well-being. This ultimately improves their quality of life.
Termination of Conservatorship
There are situations in which a conservatorship can come to an end. For instance, if the person under conservatorship shows improvement in their condition and regains their ability to make decisions. The more common reason to terminate a conservatorship is when the conservatee dies.
Terminating a conservatorship is a process that usually involves filing a motion with the court and presenting evidence and documents to support the request. It typically requires a hearing.
If the conservatee is asking for the conservatorship to be lifted because their situation has improved, the court will assess whether there is sufficient evidence for termination, considering what is in the best interest and well-being of the person under conservatorship. Often times if a person is no longer in need of a conservatorship, their conservator will work with them and the court to terminate the conservator and allow them to sign a Power of Attorney instead.
Graceful Aging Legal Services
Do you need help navigating the complexities of conservatorship? Graceful Aging Legal Services offers comprehensive legal assistance for adults. Contact us today if you need help with estate planning, wills, trusts, or understanding conservatorship. Our experienced team is ready to help your family.
Have you said ‘I do’ recently and are beginning the exciting journey of wedded bliss? Understandably, as a newly consolidated duo, estate planning techniques might not top your list. But did you know the importance financial management and estate planning holds in safeguarding your shared future? Let us guide you to financial serenity and legal obligation smoothening activities.
We understand that marriage is a joyous milestone, and with it comes the excitement of starting a new life together. However, it also brings a range of financial and legal responsibilities that may require careful consideration. As two lives intertwine, so do their finances and assets. Proper financial and estate planning not only allows newlyweds to manage their money effectively but also ensures the protection and distribution of their assets should the unexpected occur. By taking proactive steps now, couples can safeguard their financial interests and pave the way for a prosperous journey together.
Key Financial Factors
Combining finances can foster transparency, build trust, and simplify money management. However, it’s essential to address individual financial habits, expectations, and goals to create a seamless financial partnership. While you may not choose to place all your money into joint accounts, creating a joint account for shared expenses might be a good place to start. Work with your partner to craft a budget that aligns with both of your priorities and allows you to save for future goals. Don’t forget to set aside funds for personal interests, too.
With marriage also comes the need to reassess insurance coverage. Do your existing policies provide adequate protection for both of you and any dependents? Regardless of outside employment, be sure to take into account the work each spouse does around the home and what it might cost to replace that in the event of an accident or incapacity. Take this time to also review beneficiary designations on these accounts to help safeguard each other’s financial well-being and ensure your policies are set up how you would like them to be.
Many of us carry debt, and when we get married, it comes too! Addressing existing debts requires planning and coordination. Which debts will be shared and which will be tackled individually? We recognize that managing joint debts can be a delicate task, but it’s an important topic to create a plan for as soon as you can.
Action Items:
Discuss how you want to manage your finances- joint, separate, or a combo?
Evaluate and consolidate insurance policies- life, health, home, auto, etc.
Review and update beneficiary designations on insurance and retirement accounts
Discuss plan to address debts brought into the marriage and how you plan to handle debt during your marriage
Key Legal Considerations
Though it might not feel urgent, now is a great time to create or update your estate plan! Creation of a Last Will & Testament ensures that each spouse’s wishes regarding asset distribution are carried out after their passing. One common misconception is that your assets automatically pass to your spouse after your death; this is not always the case, but a will can help ensure that your wishes are followed.
Another crucial part of your estate plan are the Power of Attorney documents. Used in the event you are unable to make financial or healthcare decisions for yourself, these documents allow a trusted individual to act on your behalf. While you are not required to name your spouse as your Power of Attorney, it is an easy way to empower them to act in the event of an unexpected emergency. These documents can be written in a way that clearly defines a Power of Attorney’s role and abilities, and they should be reviewed regularly.
Action Items:
Create or update your will or trust to address your new marital status
Create or update your powers of attorney
Key Tax Considerations
The last major consideration after getting married is in regards to tax planning. There are a variety of tax filing statuses available for married couples, and if you are married as of December 31, the law says you were married for the whole year for tax purposes. If you are planning to change your name after marriage, be sure to report it to the Social Security Administration as soon as possible. Your name on your tax return must match what is on file at the SSA; if it doesn’t, it could delay your refund!
Another thing to review are your withholding amounts. Newly married couples must give their employers a newForm W-4 within 10 days of their marriage. If both spouses work, you may move into a higher tax bracket. TheTax Withholding Estimator on the IRS website is a great tool to use as you complete your new W-4. Proper tax planning can lead to substantial savings!
Action Items:
Change your name on all relevant government documents if you plan to
Consider whether taxes will be filed jointly or separately
Update your tax documents with your employer
Proper financial and estate planning is an essential step for newlyweds to set the stage for a secure and prosperous future together. By understanding and addressing the financial changes that come with marriage, establishing a comprehensive estate plan, and optimizing their tax situation, couples can embark on their journey hand-in-hand, prepared for whatever life may bring. Being proactive today brings peace of mind for tomorrow!
If you’re ready to take the next step as a couple,click here to schedule an initial call with our office. We’d love to work with you as you create your estate plan and set goals for your life together!
Being a parent to a special needs child is a journey filled with unique joys, challenges, and responsibilities. As you navigate the intricacies of caring for your child’s specific needs, it’s crucial to plan ahead to ensure their well-being and quality of life in the years to come. By taking proactive steps and establishing a comprehensive plan, you can provide a secure future and peace of mind for both you and your special needs child.
We will explore essential considerations and practical strategies to help you plan ahead for your special needs child. From financial planning to legal arrangements and support networks, we want to guide you through the process of creating a holistic plan that addresses your child’s specific needs.
Understand Your Child’s Needs: Start by gaining a thorough understanding of your child’s unique challenges and abilities. Consult with healthcare professionals, therapists, and educators who can provide valuable insights and assessments about how your child’s medical condition is likely to affect their development. It’s important to understand your child’s medical condition as it currently is, as well as how it will progress over the coming years. This knowledge will form the foundation of your planning process, helping you identify the areas where your child requires additional support and assistance.
Create a Financial Plan: Financial planning is crucial when it comes to securing your child’s future. Explore resources such as government assistance programs, insurance options, and special needs trusts. Consider working with a financial advisor experienced in special needs planning to develop a comprehensive financial strategy that accounts for long-term care, education, therapy, and other necessary expenses. One great option in Tennessee is an ABLE account – this savings/investment account is exclusively for disabled individuals and does not count against benefits that may have financial restrictions.
Establish a Legal Framework: Ensure you have the appropriate legal arrangements in place to protect your child’s interests. This includes creating a special needs trust, designating a guardian or caregiver, and documenting wishes for medical decisions. Consult with an attorney experienced in special needs law to ensure your legal documents align with your child’s specific requirements and comply with local regulations.
Build a Support Network: Seek out support networks and connect with other parents and families who have special needs children. They can provide valuable guidance, emotional support, and share resources and insights. Additionally, explore local organizations, advocacy groups, and community services that cater to the needs of special needs individuals. Additionally, you’ll want to make sure that you are taking care of yourself! Organizations like Tennessee Respite Coalition can work with you to create a plan to rest and recharge, which all parents need but becomes more important for you to be fully present when you are with your child. Building a strong support network will not only benefit your child but also provide you with a sense of community.
Plan for Transitioning into Adulthood: As your special needs child approaches adulthood, it is important to plan for their transition into independent living or alternative arrangements. Explore vocational training, employment opportunities, and housing options that are tailored to their needs. Investigate government programs that offer support and services for adults with special needs, ensuring a smooth transition into adulthood. When your child turns eighteen, you will want to discuss with your attorney whether a conservatorship is needed in order for you to continue having legal decision-making authority or if your child can engage in supported decision-making to ensure that you can continue to help them as your family continues to navigate benefits and resources that are available to them.
Regularly Review and Update Your Plan: As your family gets older each year, you will need to anticipate the financial, emotional, and social needs of your special needs child, yourself, and anyone else that you care for. Your child may have siblings who should begin to be included in a care plan as they become adults. Many adult siblings or other family members provide care and guidance when a special needs child loses their parents. Your child’s needs, circumstances, and available resources will change over time. Therefore, it’s essential to review and update your plan periodically. Stay informed about new laws and regulations that may impact your child’s benefits or financial planning. Regularly reassess your financial situation, adjust your goals, and ensure that your plan remains relevant and effective.
Planning ahead for your special needs child requires careful consideration and proactive action. By understanding your child’s needs, creating a comprehensive financial plan, establishing legal arrangements, building a support network, and planning for their transition into adulthood, you can ensure a secure and fulfilling future for your child.
If you are ready to learn more about your legal options and requirements when it comes to caring for your special needs child, especially as they reach adulthood, click here to schedule an initial call with our office. Speaking with an experienced attorney can help provide peace of mind as you continue caring for your child and planning for their future.
Remember, you are not alone on this journey. Reach out to professionals, support groups, and organizations specializing in special needs care. Their expertise, guidance, and shared experiences can provide invaluable support as you navigate the path of planning for your special needs child’s future. Embrace the opportunities to advocate for your child, empower yourself with knowledge, and take the necessary steps to create a solid plan that supports their unique needs. By planning ahead, you can provide a stable and loving environment where your special needs child can thrive and reach their full potential.
Becoming a parent is a journey filled with immeasurable love and joy, but it also comes with the responsibility of safeguarding your child’s well-being. While we strive to protect our children from harm, life can be unpredictable, and it is essential to plan for their future. One aspect that often requires thoughtful consideration is guardianship – the legal and practical arrangements for your child’s care in the event of unforeseen circumstances.
Guardianship is a topic that can be challenging to approach, as it forces us to confront difficult scenarios. However, by proactively thinking about guardianship at different stages of your child’s life, you can ensure their continued safety, care, and stability should anything happen to you or the other parent.
For example, let’s say a woman named Lorelai has a daughter named Rory. Rory’s dad, Christopher, is very irresponsible and is in and out of Rory’s life.
When Rory is 5, Lorelai is in a horrible accident. Fortunately, she has lots of life insurance to care for Rory in just this scenario. Unfortunately, Tennessee law makes Christopher Rory’s guardian and Lorelai did not have any documents providing for who should handle Rory’s money until she becomes an adult. Rory now goes to live with Rory and Christopher’s new girlfriend, Sherry, who promptly enrolls her in boarding school in Switzerland. The Court also rules that Christopher, as Rory’s dad, gets control of the money that Lorelai left for her.
Christopher means well, but he uses Rory’s money to pay for things that Lorelai wouldn’t approve of, such as a pony, a sidecar for his motorcycle, boarding school and other things that are fun. As a result, when Rory graduates high school, there is no money left for her trip to Fez or college tuition.
Lorelai’s parents, Emily and Richard, end up having to pay for Rory’s expenses out of their own pocket, which they are happy to do, but wish that Rory’s funds had been left in the care of someone more responsible, like Lorelai’s best friend, Suki.
In this blog post, we will explore the importance of contemplating guardianship throughout your child’s journey, from infancy to adulthood. We will discuss the key considerations at each stage and offer guidance on making informed decisions that align with your child’s best interests.
Infancy. In the early years of your child’s life, guardianship primarily revolves around immediate care and meeting their basic needs. It is essential to consider individuals who can provide a loving and nurturing environment similar to what you provide. Factors such as stability, proximity, and compatibility should be taken into account when selecting potential guardians.
Childhood: As your child grows, guardianship encompasses more than just physical care. It involves guiding their education, moral development, and emotional well-being. Consider individuals who share your values and can provide a supportive and enriching environment. Open communication and discussions with potential guardians are crucial to ensure they understand your expectations and are willing to take on the responsibility.
Adolescence: Teenage years bring unique challenges, and guardianship takes on a different dimension. It is vital to involve your child in discussions about guardianship, taking their preferences into account. Encourage open conversations about their wishes and desires, and help them understand the importance of having a trusted guardian to turn to during this transformative stage.
Adulthood: As your child transitions into adulthood, guardianship may evolve into a more consultative role. However, it is still important to establish legal arrangements and document your wishes regarding financial matters, medical decisions, and overall support. While your child may have more autonomy, having a designated person to offer guidance and assistance can be invaluable.
Throughout all stages, it is crucial to review and update your guardianship arrangements regularly. Life circumstances change, and the individuals you initially chose as guardians may no longer be the best fit. Stay in touch with potential guardians, keep them informed of any changes, and ensure they are still willing and able to assume the responsibility.
In conclusion, thinking about guardianship at different stages of your child’s life is an essential aspect of responsible parenting. By considering the unique needs and requirements of each stage, you can make informed decisions that prioritize your child’s well-being. Discussing guardianship openly, involving your child when appropriate, and establishing legal arrangements will provide peace of mind, knowing that your child will be cared for by trusted individuals should the need arise.
If you are interested in learning more about how to protect your minor children in the event of your death or incapacity, we’ve designed a program just for you! Our Proactive Parents Group will walk you through considerations and provide you with customized documents for your family. Through four interactive workshops with a licensed Tennessee attorney, you’ll walk away with confidence knowing your family is protected. Be proactive today – click here to learn more and to sign up!
Talking to your parents about aging, illness, and death is hard. It’s one of the hardest conversations you can have–but it’s also one of the most important. The feelings that might come up during the conversation, if uncomfortable, are better than the feelings that would otherwise come up when an emergency happens and there is no plan in place for taking care of them (or even a consensus among relatives on how to move forward). As we always say in our office: “it is better to have a plan and not need it than to need it and not have it.”
With that said, directly asking a loved one “hey, what would happen if you died today?” might not be the best way to start the conversation. So let’s consider some better alternatives to open the conversation about estate planning.
1. Tell your loved one what you’re doing for your own estate planning
Telling your loved one about your own estate plan, or your wishes to create your own estate plan, might make them consider making one themselves. Tell them what is in your Last Will and Testament, whether you have a Trust, and who you have chosen to act as your Power of Attorney. Hearing about your concerns for your own aging and death, and hearing how you’ve decided to navigate the future, will give them an idea of where to start, which is often the hardest part. Many people also struggle to decide on an estate planning attorney. It is important that the Nashville attorney they hire aligns with their needs. Hearing about your own process of hiring an attorney, and how you determined which one would be the right fit for you, can help them navigate the difficult world of hiring a Tennessee Wills and Estate Planning lawyer.
2. Talk about other situations that have happened that worried you or made you curious
Many of us know at least one person who has suffered the loss of a loved one and then had to endure the resulting feud among the family. These feuds happen so frequently that a significant number of fictional stories are based on them. Unfortunately, plenty of them could have been avoided if a clear plan had been put in place. And these feuds rarely start right after the death—many of them start much earlier, when the loved one’s health began to decline and someone had to step up to take care of them. Estate planning does not just mean deciding what happens after you die; it also means deciding what happens if your health begins to decline. If there is no plan in place for declining health, it will be up to the family to decide what happens. Even the closest of siblings can begin to resent one another if they feel that their parents’ care is not being handled properly.
Although it is fictional, the feud in This is Us between the siblings regarding their mother’s care is an accurate portrayal of what can happen in these situations. The siblings argued on what kind of medical treatment their mother should receive, and again on where she should live and who should look after her. Although all of the siblings had the best of intentions and loved each other and their mother, the feud nonetheless happened. The mother sensed the feud would escalate once her diagnosis advanced, and so she decided to name her daughter (her most level-headed child) as her healthcare power of attorney. Although the siblings still butted heads with one another, the daughter was able to carry out her mother’s wishes.
There are plenty of other examples in books and TV of families feuding over a loved one’s care or death. Talking about these hypothetical situations might make it easier to begin the conversation about aging and death.
3. Ask what would happen to their children, pets, and home if they were in a medical emergency
While discussions about aging and death might be intimidating, discussions about medical emergencies might be easier to handle. Medical emergencies can happen to anyone at any time. Our office even recommends that eighteen year olds get power of attorney documents in place, as it is important for them to have someone able to speak to medical professionals on their behalf in the event of an emergency. Since medical emergencies can happen to anyone, loved ones who do not like having their age pointed out might be more receptive to the conversation. If you know your loved one is anxious about having a stroke or falling down stairs, and tends to avoid or shut down conversation about either of those scenarios, it might be a good idea to use another medical emergency in your conversation (like a car accident, for example). While it is important for your loved one to confront their anxieties, it is not always our place to force them into a confrontation. Using a more neutral example (like the car accident) instead of one they constantly worry about might be a good way to ease them into the conversation.
4. Ask if they can show you where their estate planning documents are
After signing estate planning documents with our clients, we tell them to please let their family know their wishes and how to find the original documents. After all, the estate planning documents are only as good as the family’s ability to find them. In the event of a medical emergency or death, the signer of the documents will not be able to locate them. If no one else knows where they are or how to find them, the documents become effectively useless. It is therefore of the utmost importance that loved ones know where to locate the original documents. If you know or suspect that your loved one already has a plan in place, ask them where the documents are and how they plan to transfer the documents into the right hands in the event of an emergency or death.
For more information on how to talk to your loved ones about aging, illness, and death, we encourage you to check out The Conversation Project.
