Filing A Petition For A Conservatorship
What is a conservatorship and how is it established
? According to Ron Nevin, a probate attorney in Nashville, Tennessee, a conservatorship is similar to a power of attorney, but with a few key differences. Here, Nevin explains the basics of conservatorships and how they compare with powers of attorney.If your spouse or aging parent becomes incapable of handling his own affairs, you will need to have the authority to make decisions on his behalf. This can be accomplished through a conservatorship. A conservatorship is similar to a power of attorney. In a power of attorney, an individual designates someone to act on his behalf should he become incapable of handling his own affairs. A conservator, however, is appointed and overseen by the court.
Differences between Conservatorship and Power of Attorney
If someone becomes mentally incapacitated and he has a power of attorney in place, his designee (called his agent) becomes authorized to take over his decision-making. If someone becomes incapacitated and does not have a power of attorney in place, however, the court will assign someone to make decisions on his behalf.
If the incapacitated individual is an adult, the courts appointee is called a conservator. If the individual is a minor, the courts appointee is called a guardian. In some states, a conservatorship is called an adult guardianship. If the court appoints someone solely to take control of the incapacitated persons financial affairs, that appointee is called a conservator of the estate. Sometimes, the court may also appoint someone to take charge of a persons medical and personal decisions. That type of conservator is called a conservator of the person. Some individuals may require only one type of conservator while others need both.
The court does not oversee the agents activities in the case of a power of attorney. Because the agent has been authorized by the incapacitated individual (the principal) while that individual was still mentally competent, the law allows that agent to operate independently so long as he acts in the best interests of the individual hes representing. In a conservatorship, however, the activities of the conservator are overseen by the court.
That is, the conservator is required to keep detailed records and file annual accountings with the court. A conservator must keep records of all funds received on behalf of the incapacitated individual and all payments made from those funds, and then must file those records with the court. Those records serve as proof to the court that the conservator is handling the incapacitated persons affairs properly. If the conservator is also responsible for making medical or personal decisions on behalf of the incapacitated person, he is also accountable to the court for those decisions.
Conservatorship Petition
In order to establish a conservatorship over someone, a petition must be filed with the court and the judge must hear evidence on that persons mental capacity. The petitioner must present a physicians report stating that the individual in question is incapable of managing his own affairs. This physicians statement must show that the doctor has conducted a thorough examination, show a diagnosis of the patients condition and include any medications the person is taking. This information is necessary in order to certify that there is a real need for the conservatorship.
According to the law, an attorney will be appointed to represent the person who is the subject of the conservatorship petition. This attorney will meet with both the petitioner and the subject of the petition, review the physicians statement, interview the physician, and report back to the court on his findings. If this attorney agrees that the conservatorship is necessary, the court will likely appoint the petitioner to be the conservator. If the attorney does not agree, however, there will be a hearing.
In addition, the incapacitated individuals next of kin are notified when a petition for conservatorship is filed. Sometimes a family member will challenge the conservatorship or will vie for the job of conservator. In such cases, the court will consider two things: the necessity of the conservatorship and the qualifications of the petitioner (or other family member) to perform the role of conservator. Ultimately, the courts job is to protect the incapacitated individual by appointing the conservator who is best qualified and most likely to make decisions in accordance with the incapacitated individuals wishes and best interests.
This article is for informational purposes only. You should not rely on this article as a legal opinion on any specific facts or circumstances, and you should not act upon this information without seeking professional counsel. Publication of this article and your receipt of this article does not create an attorney-client relationship.
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