How Does a Conservatorship Work?

By Jedidiah McKeehan

A legal term that you may have heard before is the term, “conservator,” or “conservatorship.”  What do these terms actually mean?

So the term conservator, guardian, and power of attorney are terms that usually run in the same circles in that they get confused and used incorrectly frequently.

A guardian typically applies to having care, custody and responsibility for a minor child.

When you are a power of attorney for someone, that means that you can make significant decisions for someone, but they can still make those decisions themselves.  So, if your spouse is out of the country and you have a power of attorney for them, you can sign a tax return, or sell a piece of property for them if they have executed a power of attorney.  They can still do these things themselves, but they have given you the ability to do them as well.

A conservatorship takes the power of attorney one step further in that not only can someone else do things for you, the court is saying that you can no longer do those things yourself.  A conservator requires a court order and will take away a person’s ability to make a number of decisions for themselves, perhaps permanently.

A conservatorship is also not always voluntarily.  Someone may have dementia and have lost the ability to make sound decisions for themselves, but they do not realize that that is the case.  Their adult children may request that the court appoint a conservator so that their parent does not do anything inappropriate like give their house away to someone that they barely know.

When the courts consider appointing a conservator Tennessee law states the order of people to consider in Tennessee Code Annotated (TCA) section 34-3-103.  The courts are to first consider the person designated in writing by the alleged person with the disability (if they have done so), the spouse, any children, the closest relative, the state public guardian, and then any other person.

They are to be considered in that order and the court is to appoint the first person on the list which they find fit to be a conservator.

If the court determines that a conservator is needed from someone, they are to go through a specific list of items and determine whether or not the individual is going to have that certain function or decision-making ability taken away from them.

They are: the right to make medical decisions; the right to make end of life decisions; the right to decide residential placement; the right to make confidential information disclosure decisions; the right to apply for benefits; the right to sell personal and real property; the right to have a driver’s license, the right to make purchases; the right to enter a contract; the right to execute legally significant documents; the right to pay bills; the right to prosecute and defend lawsuits; the right to execute documents; the right to communicate and interact with people in person, over the phone, or via email.

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