Conservator and Guardian
For the person who has not made advance plans, a court appointed guardianship or conservatorship may be the only way to get the necessary help in caring for personal and financial needs. A conservator or guardian is appointed by the court to take care of the personal needs and property when the owner is not yet an adult or have become unable, through age, injury, or illness, to take care of themselves. A court will also appoint a conservator or guardian for someone who is likely to be cheated or taken advantage of by others because of illness or age.
What is the difference between a guardian and a conservator? Guardians are appointed to take care of minors (children under the age of 18) and conservators are appointed to take care of disabled adults. The duties of both guardians and conservators are basically the same. The person who is placed in the care of a guardian or conservator is often referred to as the "ward."
A guardian or conservator may be appointed to take care of someone's day-to-day personal needs - a "guardian or conservator of the person" - or to take care of financial affairs - "guardian or conservator of the estate". A guardian or conservator is most often a family member or friend and, in most instances, will be responsible for both the estate and the person of the ward. If a guardian or conservator is needed just for the estate, a financial institution such as a bank may be appointed.
The conservatorship or guardianship can be a temporary arrangement - that is, a person may be seriously injured in an accident and need someone to care for his affairs until he recovers. It can also be a permanent arrangement - as in the case of a person of advanced age who is unable to continue managing personal and financial affairs.
A guardianship or conservatorship is obtained by filing a "petition" with the court. Anyone can petition the court for the appointment of a conservator or guardian and nominate a specific person or persons to serve as conservator or guardian. The ward must be proven unable to manage their own affairs. If someone is attempting to have a conservator or guardian appointed for you and you feel that you do not want or need a conservator or guardian, you should immediately fight the appointment. If you do not protest, you may lose important rights and privileges with respect to managing your affairs.
In some instances, the guardian or conservator will be entitled to a fee and the court will decide the amount of money the conservator or guardian will be paid. The court will also set limits on the duties and powers of the guardian or conservator according to the needs of the person for whom the guardian is responsible. The conservator or guardian is required by law, in most cases, to file an annual report of all receipts and all payments on behalf of the sick or disabled person.
A conservatorship or guardianship may not be the best solution for every case. A living trust, power of attorney or other arrangement may be better. The problem with other arrangements, however, is that a disabled person may not be legally competent to create a trust or other arrangement at the time it becomes necessary.
The important thing to remember is that future difficulties may be avoided by planning in advance for the possibility of disability. One important feature of the conservatorship and guardianship law in Tennessee is that you are allowed to declare in advance, in a written document, who you would like to serve as your conservator or as the guardian for your minor children. If you are concerned with making these types of decisions now, you should consult an attorney for advice on which method of planning will best suit your individual needs.
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