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.
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