CONSERVATORSHIPS: WHEN AND HOW

 

            One day you may have a client sitting in front of you telling you about someone who is making terrible decisions and asking what they can do about it.  The answer you give the client should be carefully considered.  Conservatorship is not a magic wand.  The conservator can generally do no more than the ward could do if they were well.  Sometimes the task of the conservator is playing a losing hand as well as it can be played. 

In addition to untangling the mess into which someone has placed themselves, the conservator also has a set of tasks that must be performed.  The conservator must submit an inventory and a property management plan.  The conservator must submit annual accountings and annual status reports to the court unless they are waived by the court.  The conservator may also be required to post a bond in the amount of liquid resources of the ward plus the annual expected income of the ward.  In order to post a bond the prospective conservator will need to have a good enough credit rating to be able to obtain a bond.  The client should be warned that unless the ward has resources, the conservator will need to be prepared to do all this without being paid.

A word about accountings.  Courts will want the front and the back of checks.  It is amazing how many banks no longer provide that service.  Some banks only provide images of the front and back of checks online.  If that is the case make sure the conservator prints out those images every month.  If the checks are online, they are generally only online for a short time.

Once the client has determined to move forward with a conservatorship, the next question is what the client, and you the attorney, will need to prove to obtain the conservatorship.  As then Judge Koch observed in the case of In re Conservatorship of Groves,

Tennessee's conservatorship statutes do not define the concept of incapacity and do not identify any particular illnesses or conditions deemed to be disabling or incapacitating. The definition of “disabled person” alludes in the most general terms to “mental illness, physical illness, developmental disability or other mental or physical incapacity.” Thus, while identification of the disabling illness, injury, or condition is an important part of a conservatorship proceeding, the pivotal inquiry involves not merely the diagnosis but also the effect that the illness, injury, or condition has had on the capacity of the person for whom a conservator is sought.  

In re Conservatorship of Groves, 109 S.W.3d 317, 331–32 (Tenn. App. 2003)

            My definition of when a conservatorship is needed is this.  If the person is capable of making rational decisions, even if they are making what you consider to be bad decisions, there should not be a conservator.  If the person is not capable of making rational decisions, it may be time for a conservatorship.  People are entitled to the dignity of making their own bad decisions.  Just because a person is old and may forget things more than makes the client comfortable is not sufficient reason for a conservatorship.

            Generally, the proof needed for a conservatorship is found in a Report of Physician.  That form can be found at:  https://www.tn.gov/assets/entities/didd/attachments/PhysicianReportConsv.pdf

The Report should be notarized and needs to be from a treating physician who has seen the proposed ward within the last 90 days.  If you cannot obtain a Report you may ask for a court order authorizing the Report.  Keep in mind that while the Rorm should be notarized, it is still subject to the Tennessee Rules of Evidence about hearsay if there is an objection to admission.  If there is an objection a deposition of the physician may need to be arranged.

            Once the conservatorship is in place there needs to be a plan in place for what happens with the ward.  The conservator has two, sometimes antagonistic, requirements governing their actions.  The first is the safety of the Ward, meaning a secure living environment, adequate medical care, food, and medicine.  The second is preserving the human dignity of the ward.  That means, among other things, giving the ward the utmost freedom consistent with safety.  It also means keeping in mind that the ward has hopes, emotions, friendships, and fears just like everyone else.  The conservators choices and actions should not be based upon substituted judgment, but on a compassionate understanding of the humanity of the ward.