Power of Attorney vs. Conservatorship in Tennessee

kyleneross

13 minutes ago

4 min read

A power of attorney is a document you sign yourself, while you can still make your own decisions, naming someone to act for you. A conservatorship is a court case that someone else files after you can no longer decide for yourself, and a judge picks who will make decisions for you. If a valid power of attorney is already in place, a conservatorship may never be needed.

What a power of attorney is

A power of attorney lets you (the "principal") name an agent (the "attorney in fact") to act for you.

Durable power of attorney for finances. To keep working if you later become disabled or incapacitated, it must say so, with words like "This power of attorney shall not be affected by subsequent disability or incapacity of the principal," or it can be written to take effect only upon your disability or incapacity (Tenn. Code Ann. § 34-6-102).
Health care. Tennessee's advance directive lets an adult name a health care agent. It must be in writing, signed, and either notarized or signed by two witnesses, at least one of whom is not a relative and has no claim to your estate. The agent's authority begins when a physician determines you lack capacity, and ends if you regain it (Tenn. Code Ann. § 68-11-1803).

Timing is everything

You have to sign these documents while you still have the capacity to understand them. Once dementia, a stroke or an injury takes that ability away, it is too late to sign. At that point, the family's main option is usually a conservatorship.

What a conservatorship is

A conservator is a person or entity the court appoints to make decisions for a "person with a disability" in the areas where that person lacks capacity (Tenn. Code Ann. § 34-1-101). Conservatorships for adults are governed by Title 34 of the Tennessee Code, chapters 1 and 3 (chapter 2 covers guardianships of minors).

How the court process works

Petition. A family member or other person files a sworn petition in court.
Medical evidence. A physician, psychologist or senior psychological examiner prepares a sworn report on the person's condition and whether a conservatorship is needed. If an exam was done within 90 days before filing, the report is filed with the petition (Tenn. Code Ann. § 34-3-105).
Guardian ad litem. The court generally appoints a guardian ad litem, usually a lawyer, who meets the person in person, investigates for the court, and files a written report at least 3 days before the hearing (Tenn. Code Ann. § 34-1-107).
The person's rights. The person can demand a hearing, present evidence, cross-examine witnesses, attend any hearing, and have an attorney ad litem appointed to advocate for them (Tenn. Code Ann. § 34-3-106).
The standard. The court must find by clear and convincing evidence that the person is fully or partially disabled and needs the court's help (Tenn. Code Ann. § 34-1-126).
Least restrictive alternative. The court has an affirmative duty to impose the least restrictive alternative that still protects the person and their property (Tenn. Code Ann. § 34-1-127). That can mean a limited conservatorship covering only some decisions, or no conservatorship at all.

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After the appointment

A conservatorship does not end at the hearing. A conservator managing money must file a sworn accounting within 30 days after the six-month anniversary of appointment, then yearly, with bank statements and receipts (Tenn. Code Ann. § 34-1-111). The court supervises until the conservatorship ends.

Side by side

Who starts it? Power of attorney: you. Conservatorship: a family member or other petitioner.
When? Power of attorney: while you have capacity. Conservatorship: after you have lost capacity.
Who chooses the decision-maker? Power of attorney: you. Conservatorship: the judge.
Court involvement? Power of attorney: none to create it. Conservatorship: petition, medical report, guardian ad litem and a hearing.
Ongoing oversight? Power of attorney: your agent answers to you. Conservatorship: court-supervised, with required accountings.
Time and cost? Power of attorney: generally faster and less expensive. Conservatorship: generally takes longer and costs more because it is a court case.

How the two connect

A power of attorney can still matter if a conservatorship is filed later:

Your choice carries weight. The first person the court considers for conservator is someone you designated in a signed writing (Tenn. Code Ann. § 34-3-103). A durable power of attorney can also nominate your conservator, and the court must follow your most recent nomination unless there is good cause or the person is disqualified (Tenn. Code Ann. § 34-6-104).
Your agent stays accountable. If a conservator is appointed over all your property, your agent answers to the conservator as well as to you (Tenn. Code Ann. § 34-6-104).
It can be the less restrictive option. Because the court must look for the least restrictive alternative (Tenn. Code Ann. § 34-1-127), a working power of attorney can be a reason a conservatorship is not needed.

Which one do you need?

Your parent can still understand and make decisions: talk about a durable power of attorney and an advance directive now.
Your parent can no longer understand what they would be signing: a power of attorney is likely off the table, and a conservatorship may be the path.
Someone is already acting under a power of attorney but there are problems: get advice before you file anything.

How we can help

We prepare durable powers of attorney and health care documents for people who want to plan ahead, and we represent families who need to ask the court for a conservatorship. Learn more about powers of attorney, conservatorships in Gallatin, and our estate planning and probate practice.

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