As discussed previously, certain types of powers of attorney can allow a person to appoint someone to make decisions for the person should they become incapacitated. What happens, though, if someone becomes unable to make decisions on their own and does not have an existing power of attorney? Because creating a power of attorney requires the person to be "of sound mind" in order to successfully create that relationship, a different process must be used: conservatorship.
A conservator is a person who is appointed by a court to make decisions for another person who is "disabled" and unable to make the decisions for themselves (a "conservatee" or "ward"). The specific powers of the conservator are determined by the court based on the facts and circumstances of each situation.
To begin the process of conservatorship, Tennessee law allows anyone to file a petition for the appointment of a conservator so long as they have knowledge of the circumstances that appear to make a conservator necessary. This petition is generally filed, per statute, in the probate court located within the county of residence of the person with the alleged disability. The court will then appoint an attorney, called a "guardian ad litem," to act as a third party and investigate the facts to determine whether the conservatorship will be approved.
If the court determines that a petition to appoint a conservator will be approved, the court then chooses who will act in that capacity. In doing so, the court follows a statutory order of preference, which includes (in order): A person designated in writing signed by the allegedly disabled person, the allegedly disabled person's spouse, the allegedly disabled person's child or children, the allegedly disabled person's closest relative, a public guardian as prescribed by statute, and finally, anyone else.
So, one might wonder, why might a power of attorney still be preferable if an incapacitated person's preference of a conservator is taken into account? The short answer is that having the situation prearranged via a power of attorney is often simpler, and can avoid problems both for the incapacitated/disabled person and also for the person who makes decisions for them. First, a power of attorney can help ensure that the person making the decisions is the person who the incapacitated or disabled person would want, whereas a court could appoint another person to be conservator, particularly if the incapacitated person is unable to express a preference via signed writing. Second, with a power of attorney, the person who effects such a document has the ability to choose which powers to delegate to the person who would make decisions for them; with a conservatorship, that decision falls exclusively to the court. Finally, a conservator is generally subjected to stricter judicial oversight, which often translates into greater cost and effort required on the part of the conservator, in the course of carrying out their duties.
Hopefully this post is helpful to understanding the basics of conservatorship and its interaction with estate planning. As always, be sure to consult with a licensed, reputable attorney about your estate planning needs, including planning for situations similar to those described above.
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