Recently attorney Jim Higgins stopped by WSMV’s Better Nashville to discuss the differences between a power of attorney and a conservatorship in Tennessee. Both of a power of attorney and conservatorship enable another person to make decisions or take actions on an individual’s behalf. However, there are different circumstances as to when each of these legal actions should be utilized. For instance, a power of attorney is a legal form utilized when the principal, or person granting the decision making authority, is mentally capable of granting that power to another person. In contrast, a conservatorship is a legal proceeding in which a court designates another individual, the conservator, to make decisions and take actions on behalf of the ward. The video below provides some further insight into the benefits of each. If you have any questions regarding a power of attorney or a conservatorship in Tennessee, contact The Higgins Firm.
Although many of us are willing and capable of making decisions and acting for ourselves, there are some who incapable of doing so for a number of reasons. Whether it is due to a temporary illness or a lifelong disorder, many individuals will rely upon the help of another to assist in making certain decisions or to perform specific acts. There are certain legal avenues that can be taken to enable another in making these important decisions. Both a power of attorney and a conservatorship are legal actions that allocate the decision making authority of a person to another individual. While a power of attorney and a conservatorship achieve the same goal of allocating that authority to another person, these legal actions are utilized in different circumstances depending on the situation.
It is important to identify the differences between a power of attorney and a conservatorship to know which act should be used when. A power of attorney is a written legal document that specifically allocates certain rights or powers to act or make decisions to another person. The person granting these powers is known as the “principal” or “grantor” and the person receiving the powers is known as the “agent” or “attorney-in-fact.” In other words, the principal grants certain powers to the agent who can then act on the principal’s behalf. A power of attorney can be drafted to grant a broad range of powers or a very narrow and specific power. In addition, a power of attorney can designate exactly when the powers shall be allocated to the attorney-in-fact. For instance, a power of attorney could come into effect immediately upon the principal’s signature or the powers could be allocated only upon the incapacity of the principal. A power of attorney is an easy and cost effective way to allocate authority to another individual. However, one of the main requirements of a power of attorney is the ability or capacity of the principal to allocate these powers. This document is only effective if the principal has the mental capacity to perform this legal act.
If the principal does not have the mental capacity or is not of sound mind to execute the power of attorney properly, then a conservatorship may be needed. A conservatorship is a formal legal proceeding in which a judge determines that the individual is not capable of making decisions for him or herself and that decision making authority should be granted to another person. The person who is appointed is known as the “conservator” while the disabled individual is known as the “ward.” Because a conservatorship is a legal proceeding that essentially takes away the decision making rights of another individual, it is a more involved and time intensive process that includes filing a number of required documents with the court and a hearing in front of a judge. In addition, the court will designate exactly who the best individual is to be appointed conservator at the hearing. A conservatorship will typically last throughout the life of the ward and will only be terminated by a judge.
A task force assigned to look into the increasing number of conservatorships in Davidson County has determined that there is not enough oversight and has recommended the establishment of a new office, known as the Office of the Public Guardian, to oversee such. There have been several instances which have prompted the need into further oversight of conservatorships in Davidson County. In addition, there are an increasing number of indigent individuals who need assistance from such an office because they may not have friends or family who are capable of serving as a conservator.
The proposed Office of the Public Guardian would replace the one person position of public guardian which is currently vacant following the resignation of Jeanan Mills Stuart. Stuart had acted as public guardian, a public position which acts as a conservator to indigent individuals. Stuart’s resignation came in the wake of an investigation into the fees that she was charging to perform a number of tasks. Stuart had charged her wards the full hourly attorney’s fee of between $200 and $225 to perform any task including running their errands. Some of the tasks included taking wards shopping, running errands, and attending events.
In 2009, Davidson County had 636 conservatorships. That number jumped to 1,782 conservatorships in 2012. With the highest numbers in the state, there are a number of reasons as to why Davidson County has such a high case load including a high number of nursing homes, hospitals, veterans facilities and the large population of homeless. With an increasing amount of conservatorships, it has become much harder to oversee. That number is only expected to grow as the baby boomer generation ages and life expectancies become longer due to medical advances.