Understanding Conservatorships and Powers of Attorney in Tennessee

Conservatorship

Tennessee law provides that a “Conservatorship” is a proceeding in which a court removes the decision-making powers and duties, in whole or in part, in a least restrictive manner, from a person with a disability who lacks capacity to make decisions in one or more important areas and places responsibility for one or more of those decisions in a conservator or co-conservators.

A “Person with a disability” means any person eighteen (18) years of age or older determined by the court to be in need of partial or full supervision, protection, and assistance by reason of mental illness, physical illness or injury, developmental disability, or other mental or physical incapacity.

Power of Attorney

A power of attorney creates a fiduciary duty between the creator known as the principal and the person they appoint to help them make decisions, known as the agent or oftentimes the

attorney-in-fact. A power of attorney may be created for both healthcare decisions and general decision making authority, and may be used immediately upon execution of the document or it may require a physician's certification that be principle is unable to make decisions on their own.

Generally, individuals who have executed a power of attorney may be able to avoid the

conservatorship process as they have already appointed someone to make decisions on their behalf should the need arise. For those individuals who do not have the benefit of executing a power of attorney whether by failure to plan or simply not knowing to do so, a conservatorship is often required when a person with a disability lacks the capacity to make independent decisions.

Fiduciary Duty

A fiduciary duty is imposed upon both agents under a power of attorney and conservators who are court-appointed. This requires the agent or conservator to keep the person with a

disability’s best interests in mind and be accountable for any expenditures of that individual's

funds. There is a duty of loyalty and to avoid self-dealing to benefit the agent or conservator

themselves. Careful planning and advice from an attorney can help navigate these issues.

Our team is ready to counsel you and your loved ones with whatever situation you may find yourself in.

Is my Last Will from another state still effective in Tennessee?

We get asked this question a number of times each week. The simple answer is

yes, under one condition. If the Last Will was executed correctly, satisfying all

conditions for will execution of the prior state, then yes, the Last Will is effective and

will be recognized as such in Tennessee.

From our view, that should not be the end of the inquiry. If you have recently

moved to Tennessee (or even if it has been several years), you should review your

estate plan to make certain that it still meets your needs as previously set forth. Will

those I have designated to serve as my Executor/Personal Representative be able to

travel to Tennessee to perform their duties? Are my Executor/Personal Representative

capable of transacting business in our digital society today? Will probate in Tennessee

be a hardship for my loved ones? Are any of my beneficiaries dealing with special

needs? Can I avoid probate altogether? These questions, along with many others, are

all relevant and necessary questions to discuss with your estate planning attorney.

At Clements Law Firm, our lawyers have over 75 years of combined experience in

meeting the legal needs of our clients. Let us assist you answer those questions above

along with any others you may have. Call us today at (423) 713-7749.

Whatever you do, don’t wait and let your kids figure it out once you are gone.