A 2017 study of Americans published on Bloomberg.com cited that 25% of Americans ages 58-60 surveyed considered themselves in “poor” or “fair” health1. The study further cited that 11% of this same age group suffered from some form of dementia or cognitive decline1. This age group falls directly within the demographic of “baby boomers”, those Americans born between 1946 and 1964. Current estimates establish that 10,000 baby boomers are retiring per day in the United States2.
The realism of these statistics is that most of us have parents, grandparents, aunts, uncles, brothers, sisters, and even friends of this age, who may be experiencing health issues related with aging. Proper estate planning, including having an adequate Will and Powers of Attorney, is the best way to protect one’s interests as they grow older. However, what happens if a person becomes mentally or physically disabled, and is no longer able to manage their affairs, without proper estate planning in place?
Tennessee law provides for such individuals to be granted a conservatorship. In a conservatorship proceeding, a third-party petitioner files a petition with a court highlighting the circumstances surrounding the disabled person’s disability and their relationship with the disabled person. Generally, the petitioner/prospective conservator is a relative of the disabled person; however, the law allows any individual who has not been sentenced to prison to serve as a conservator. As a part of the conservatorship filing, the disabled party must be examined by a doctor and determined to be disabled and unable to properly manage their affairs. The petitioner must also give notice to the disabled person, and their closest relatives of the conservatorship request in the event they wish to contest it.
A court will also usually appoint a neutral attorney, called a guardian ad litem to act as an investigator for the court to determine whether the disabled person is truly disabled and needs a conservator. The guardian ad litem will often speak with the disabled person, as well as the petitioner and render a report as to whether a conservatorship is merited. The Court ultimately makes the determination if a conservatorship is warranted.
A conservator, once appointed, may manage the property of a disabled person. However, the conservator is deemed a fiduciary of the disabled person and must file an initial inventory of the disabled person’s property. Additionally, the conservator must file periodic accountings of the disabled person’s property. The conservator also may be liable for wrongful actions or failing to file timely reports while acting as conservator.
If you are concerned about a family member or friend’s ability to manage their affairs, call Amanda Crowell at (615) 449-4848 to discuss conservatorships.