What is a Conservatorship, and Can It be an Abusive Arrangement?

A conservatorship provides legal protections to vulnerable persons by allowing their family or trusted loved ones to make important decisions on their behalf. By transferring legal and financial decisions to another person, vulnerable individuals can avoid falling victim to financial exploitation or being mentally incapable of making important medical choices. Conservatorships have been in the news for a few years because several celebrities have used this legal protection to work through their issues. From Joni Mitchell to Kasey Kassem, conservatorships have been shown to work for many people, but they can become oppressive and toxic for some.

What is Considered Conservatorship Abuse?

When a conservatorship becomes demoralizing or exploitative, it can be considered abusive. Conservatorship abuse can materialize as mental, financial, or physical. Having a conservatorship put into place isn't an easy process. It requires a court-appointed conservator and formal guidelines. The guidelines stipulate whether the conservatorship applies to the entire estate or the individual. Conservatorships are typically both estate and individual, but they do not have to be. When both are covered, the conservator handles all business, life, and legal decisions. Once under the guidelines of a conservatorship, an individual cannot make decisions for themselves any longer. All the individual's power and agency belong to the conservator, which leaves ample room for abuse. Cases of conservatorship abuse have grown, especially in the elder community. The government investigated the growing problem in a decade-long review, and they found conservators exploited over $5 million from those in their care in 45 states out of 50.

Tennessee Conservatorship Laws

If you suspect your loved one is in an abusive conservatorship situation, you will need the assistance of a Tennessee conservatorship attorney. A knowledgeable lawyer can help you terminate the conservatorship or request modifications. The following excerpt from the Tennessee Code provides guidelines for seeking legal assistance in conservatorship cases.

According to Tennessee Code (TN § 34-1-101,) a conservator and conservatorship are defined as follows:

(4) (A) "Conservator" or "co-conservators" means a person or persons or an entity appointed by the court to exercise the decision-making rights and duties of the person with a disability in one or more areas in which the person lacks capacity as determined and required by the orders of the court;

(B) "Conservatorship" is a proceeding in which a court removes the decision-making powers and duties, in whole or in part, in the least restrictive manner, from a person with a disability who lacks the 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;

The conservatorship ruling can be modified or terminated for one of the reasons found in Tennessee Code 34-3-108(a):

(a) A conservator appointed under this chapter may be discharged or have its duties modified if the court determines that the respondent is no longer a disabled person, or that it is in the best interests of the disabled person that the conservatorship be terminated, or that the conservator has failed to perform its duties and obligations in accordance with the law, or that the conservator has failed to act in the disabled person's best interest so as to warrant modification or termination. The disabled person or any interested person on the disabled person's behalf may petition the court at any time for a termination or modification order under this section.

Modifications and terminations can be requested in the following circumstances:

The individual in the conservatorship no longer needs or qualifies as a disabled person.
Ending or modifying the conservatorship is in the best interest of the individual in question.
The conservatorship has failed to meet the requirements found in Tennessee law.
The conservator has acted in a manner that does not benefit the individual in question.

How to Spot Conservatorship Abuse?

Your loved one could be the victim of conservatorship abuse if you've noticed signs of a problem when visiting with them. Most conservatorship decisions deal with financial concerns, so you should review your loved one's financial health if you are looking for signs of abuse. Typically, the first sign of financial abuse or mismanagement happens because money has been stolen or mishandled. Most individuals with a conservatorship in place have mental incapacity, health concerns, or advanced age issues. With these limitations, asset mismanagement and financial abuse can go unnoticed for quite a long time.

Here are some other common signs of conservatorship abuse:

Missing Payments & Late Bills: If your loved one has regular expenses that must be paid, a common first sign of financial abuse is missed payments. If bills like credit cards, taxes, housing charges, or any other obligations are going unpaid, this is a huge red flag beause the conservator should be handling these matters. If this happened, your conservator should be investigated.

Spending Changes: If your loved one has always sent birthday and holiday gifts or made donations to important charitable organizations, and the conservator suddenly stops or forgets to handle this obligation. It's a sign the money may not be available.

Estate Plan Changes: Your loved one is not legally allowed to change the terms of their estate plan because the conservator does this on their behalf. This could be a problem if assets are being removed from trust accounts or reallocated to benefit the conservator. The conservator could be moving assets to cover up financial misdeeds.

Returned Checks: Have you received a check from your loved one, and their financial institution returned it? Where is the money? A lack of funds could be a sign of a problem. It's best to investigate before it's too late.

Clarksville Conservatorship Attorney

A conservatorship is a powerful and useful legal tool that can help families manage the affairs of an incapacitated loved one. Because a conservatorship gives the conservator such broad legal authority and limited oversight, the tendency for abuse and mismanagement is high. While financial abuse is the most common, there have been examples of emotional abuse, physical abuse, and neglect. A corrupt conservator can be difficult to constrain unless you have proof of wrongdoing. Families can put mechanisms in place to require accountability and oversight to prevent abuse and fraud. If you and your family need help to put a conservatorship in place for a loved one, the lawyers at Patton | Pittman Attorneys can help. Schedule a consultation today to work with our attorneys to begin the process.

Call our Clarksville conservatorship attorneys at (931) 361-4477 to schedule a consultation.