The Legal Criteria for a Mental Health Conservatorship
Aug. 17, 2022
If you have a loved one who is suffering from a mental disability that makes it hard if not impossible for them to function in daily life, such as Alzheimer’s, you can seek to have a conservator appointed by a court. Likewise, you yourself – in facing such mental challenges – may decide that it is in your best interests to have a conservator appointed to help make medical and health-related decisions for you.
Conservatorships are recognized in all 50 states. Generally, there are two types of conservators. One is called “conservator of the estate.” This person would be responsible for managing the financial affairs of the conservatee, or ward. A “conservator of the person” is someone who is in charge of making medical and personal decisions for the ward.
Tennessee law recognizes two types of conservatorships: full and limited. A full conservatorship bestows both financial and personal-decision making powers upon one person. A limited conservatorship would be limited to either financial or health matters, not both.
Going to court to have a conservatorship established can be a lengthy and exhausting proposition. The person who may end up being put under a conservatorship has a right to have an attorney to represent their interests.
If you or a loved one is going to court over the issue of whether a conservator should be appointed – and if so, who should that person be and what powers they should have – and you’re in or around Nashville, Tennessee, contact Brazil Clark, PLLC. Attorney Frank Brazil will represent you or your loved one’s interests with compassion and dedication.
Who Can Be a Conservator?
The best way to ensure that someone you know and trust will be in charge of your medical decisions should you become incapacitated is to appoint that person in a health care power of attorney. But if that is lacking, then the remaining option is for a court-appointed conservator.
Fortunately in Tennessee, the law establishes a hierarchy of who should be chosen, beginning with the spouse. After that comes an adult child of the ward, followed by the next closest relative of the ward.
If any of these family members are either unable or unwilling to take on the role, then the court can turn to a state-run program of public guardians. As another option, the court can appoint anyone willing and able to serve as the conservator, such as a friend of the ward or a fellow churchgoer.
What Is the Role of the Conservator?
During the court proceedings, you as the potential ward have the right to express the areas in which you need help and those in which you do not. For instance, you can use the phases “I can decide with no extra support” and “I need support with my decision” to specify where help is needed.
Tennessee Code states that a conservatorship places responsibility onto a conservator or co-conservators. However, it’s important to note that these decision-making powers are to be taken from an individual in the least restrictive manner.
Which Mental Health Issues Might Warrant a Conservator?
Any type of cognitive decline might trigger the need for a conservator, whether it be dementia, Alzheimer’s, or the result of an injury or accident that restricts mental capacity. In extreme cases, someone in a coma would definitely need a conservator. The code referenced above uses the standard of someone with “a disability who lacks capacity to make decisions in one or more important areas.”
What Are the Legal Criteria and Process for Naming a Conservator?
The process begins by filing a petition with the court in the county in which the disabled person resides. The petition must be accompanied by a report by a doctor, psychologist, or senior psychological examiner detailing the medical condition that warrants having a conservator appointed.
The court will then assign a “Guardian ad Litem” to investigate and determine if a conservatorship is needed. The court may also appoint an “Attorney ad Litem” to represent the interests of the ward, or the ward may be represented by his or her own counsel. The ward has every right to object to the conservatorship, but the court will make the final judgment call.
If the ward objects to the conservator appointed by the court or otherwise wishes to challenge the decision, he or she can appeal to the court by using the Attorney ad Litem or attorney of their own.
Comprehensive Legal Advice
Seeking a conservatorship for a loved one can be a gut-wrenching decision, and then navigating the court system to ensure the loved one’s rights are fully respected can be challenging and emotional. You will need the compassionate advice and guidance of an attorney experienced in conservatorship pleadings.
If you need to petition for a conservatorship in or around Nashville, Tennessee, or throughout Rutherford County, contact Brazil Clark, PLLC. Attorney Frank Brazil is both experienced and compassionate and will look out for your loved one’s best interests.