Why Would I Need a Conservatorship for My Disabled Adult Child?

On many occasions, I am approached by parents of a disabled adult child with

special needs who have been told that they need a conservatorship. They then ask why

they need the conservatorship when they have raised their adult child from birth and

the adult child still remains in their home. The general issue is that the adult child, who

is now eighteen or older, is considered an adult by the law, and with adulthood comes

numerous rights that the parents are no longer allowed to either pursue or protect for

their adult child. So, when I am asked by the parents if they need a conservatorship for

the son or daughter, the answer is most definitely yes.

What is a conservatorship? Under Tennessee law, the proceeding is necessary

when a person is found to be disabled, either from mental illness or injury, and needs

the protection of the court to appoint someone to make decisions for the disabled

person. The appointed person is typically a family member but that is not required. The

conservator manages the finances for the disabled individual and makes healthcare

decisions as well.

What rights accrue at eighteen that make the need for a conservatorship

necessary? First, as an adult the disabled adult child now has private health

information which is protected under the Health Insurance Portability and Accountability

Act of 1996, also known as HIPAA. Because HIPAA is so ingrained in our medical

society, frequently health care providers will no longer speak with the parents who have

always accompanied their disabled adult child to their medical appointments and made

decisions for them with regard to their health. Under HIPAA, the parents no longer

have the right to have access to the private health information of their disabled adult

child, nor do they have any input into the health decisions that are made, unless

authorized by the disabled adult child or the court through the appointment of the

conservator. In that scenario a conservatorship is necessary that authorizes the parents,

as conservators, to have full access to their disabled adult child's private health

information and give them authority to assist, consent or not consent to medical

treatment for their disabled adult child.

Second, the child, whether receiving government benefits as a minor or not, may

now be eligible for Social Security disability benefits or Supplemental Security benefits

that he/ she may not be competent to pursue. The Social Security Administration will

generally not speak with or interact with the parents of an adult child who is seeking

such benefits. The powers of the conservatorship grant the conservator the authority

to apply for, communicate with, and otherwise interact with the Administration in order

to pursue the benefits on behalf of their disabled adult child. This scenario is one of the

most frequent reasons for parents to pursue a conservatorship for their disabled adult

child.

Third, although the child is now the age of majority, many such adult children are

continuing their secondary education. Just as under HIPAA their privacy rights are

protected, most educational laws, which can vary by state, will prevent parents from

having access to their now adult child's educational records. Again, powers granted

under the conservatorship would authorize the parents to have continued access to and

input in their adult child’s educational pursuits. The same authority granted under the

conservatorship would extend to any college or post-secondary educational institution

as well.

Let the experienced attorneys at Clements & Eubanks, PC assist you with any

conservatorship needs you or your loved ones have. Your peace of mind is our priority.

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.