Hot-Button Questions Answered Regarding Conservatorships
By now, most of us have seen the media coverage and are well aware of Britney Spears’ controversial conservatorship case. Spears became “the international face of a movement,” which, according to the Wolters Kluwer article “The Year in Review and Trends for 2022,” questions “restrictive, protective arrangements like guardianships and conservatorships” and promotes alternatives like supportive decision-making arrangements.
While this may be a hot-button topic in the mainstream media now, our Special Needs Planning team has followed the trends with protective arrangements for years. As a result, there have been notable changes in state laws across the country and in Tennessee. In 2021, court decisions illustrated the concerns raised about protective arrangements.
These developments raise several questions related to how clients approach conservatorships, guardianships, and other arrangements regarding their loved ones’ care and decision-making. Here is our team’s take on key considerations and commentary on what they have seen in recent cases.
Q: What is a conservatorship?
A: A conservatorship is a legal proceeding in which a court removes specific decision-making powers from a person 18 years of age or older, usually individuals with disabilities or the elderly. The court appoints a conservator to make decisions for and act in the best interest of the person with a disability. Recent media attention has focused on the negative aspects of a conservatorship, like loss of rights and the opportunity for abuse, but the primary purpose of protecting the vulnerable and the safeguards included in the conservatorship laws have largely been ignored.
Before removing and transferring a person’s rights to a conservator, the court first must find by a high standard of proof, clear and convincing evidence, that a person is disabled and in need of the court’s assistance. At that point, the court has an obligation to determine the “least restrictive alternatives” that adequately protect the person with a disability. A number of preliminary safeguards are in place to protect the respondent (the person for whom conservatorship is being sought).
- The respondent and his or her closest relatives must receive notice of the proceedings.
- The nature of the proceedings and the respondent’s rights are explained by a guardian ad litem, who also investigates the circumstances and reports to the court. In addition, the respondent can request an attorney.
- The qualifications of the proposed conservator are thoroughly investigated by the guardian ad litem before the appointment, and, once appointed, the conservator is subject to oversight by the court, including required inventories and accountings, posting a bond, and restrictions on spending and transferring property.
Q: What are the alternatives to a conservatorship/guardianship?
A: Powers of attorney: A person with capacity can execute a power of attorney to give another person, called an attorney-in-fact, the right to make certain decisions. A power of attorney does not remove the person’s rights, and it can be revoked at any time. A power of attorney may authorize the attorney-in-fact to make financial decisions or personal and medical decisions.
Health care advance directives: Health care advance directives set forth what kind of medical treatment a person wants in advance.
Physician Orders for Scope of Treatment (POST) form: A POST form is a document containing medical instructions for health care professionals to recognize and honor a patient’s treatment preferences for life-sustaining measures such as CPR, a breathing tube, or a feeding tube. It becomes an official medical order once a doctor signs it.
Trust: A trust can be created to allow a trustee to manage the person’s property. The trust agreement may provide that money can only be used for specific reasons.
Designations on bank accounts: A trusted supporter or advisor can be added as an authorized signer on a bank account and allowed access to banking information. A bank account could also be set up so that both the account owner and authorized signatory must agree before money is withdrawn. Such changes to bank accounts should be entered with caution because they allow the authorized person to remove money from accounts.
Supported decision-making arrangements: Supporters help a person with a disability make decisions.
Q: What is a supported decision-making arrangement?
A: In supported decision-making arrangements, a person with a disability gets help making choices from people called supporters. Supporters can be anyone — friends, family, or professionals. Supporters do not have the authority to make choices for the individual with a disability but only serve as helpers. Supported decision-making arrangements are often informal, like asking a trusted advisor for help understanding a situation and deciding what to do. A supported decision-making arrangement may be formalized in a written agreement where the person with a disability agrees that a person or group of supporters can help make decisions. In states where such agreements are recognized, the agreement shows others that a supported decision-making arrangement is being used, and businesses have to allow the supporters to help.
Only a few states have supported decision-making laws, and the provisions of those laws are all different. Tennessee does not have a law recognizing supported decision-making agreements. However, Tennessee’s conservatorship law allows for and encourages incorporating the concepts of supported decision-making. Tennessee laws require using the “least restrictive alternatives” to preserve as many decision-making rights as practical for a person with a disability when a conservatorship is established.
Q: How is a supported decision-making arrangement different from a conservatorship or guardianship?
A: A supported decision-making arrangement is voluntary, and the rights of the person with a disability are not removed and transferred to another party. Generally, there is no oversight of a supported decision-making arrangement; therefore, it is not protective like a conservatorship. This type of an arrangement allows greater opportunity for financial exploitation and abuse than a conservatorship.
Q: How does someone decide if a conservatorship, guardianship, supported decision-making arrangement, or alternative arrangement is the best solution?
A: It really depends on the person’s unique situation, and many factors are at play. This is why it’s important to seek counsel from an experienced professional. Some questions to ask before deciding on an arrangement are: 1) Does the person have the capacity to appoint someone to act on his or her behalf? 2) Does the person understand their financial situation and medical needs? 3) Is the person vulnerable to exploitation? 4) What decisions is the person capable of making on their own?
Q: What resources are available for educating individuals with intellectual and developmental disabilities and their loved ones about conservatorships and guardianships, other protective arrangements like powers of attorney, and supported decision-making arrangements?
A: There are national resources, such as the American Bar Association Commission on Law and Aging and the National Resource Center for Supported Decision-Making. In Tennessee, the Tennessee Center for Decision-Making Support provides resources about decision-making options for people with disabilities.
Q: If someone suspects financial fraud and abuse related to a protective arrangement, what should he/she do?
A: This is a serious question and one we’ve helped many clients with over the years. There will be red flags such as memory loss, unusual expenditures, isolation or sudden changes in personal relationships, or secretiveness about finances or relationships. The best thing to do if you suspect something is to “keep multiple people in the loop, ask questions, report suspected cases, and don’t blame or shame.” (These tips were shared in the AARP article “Elder Financial Abuse: Stopping Fraud in the Family,” an article Sally Brewer and Rebecca Miller contributed to.
Q: Are you seeing more cases where capacity is restored or altered after the court determines current arrangements are not reasonable?
A: According to the Wolters Kluwer article previously mentioned, “Restoration of capacity cases used to be rare, but in 2021, courts seemed more open to lifting or relaxing protective arrangements.” In our experience, the courts have always been cognizant of how significant it is to remove a person’s rights, and judges take the obligation to thoughtfully consider the evidence and enforce the safeguards provided in the law seriously. Given that mindset, judges are open to customizing the restrictions imposed at the time a conservatorship is established and also to entertaining a modification or termination where the restrictions of a conservatorship no longer make sense or are not necessary. That being said, we may be seeing more requests for modifying or terminating conservatorships as a result of the recent media attention.
Over the years, we have had a number of successes representing wards seeking to oppose or terminate a conservatorship. In more than one instance, a conservatorship was sought where a person seemed to lack capacity due to an adverse reaction to a drug. However, it was discovered that a conservatorship was not needed when the medication was changed or adjusted. In other cases, we have assisted in terminating conservatorships after people recover from serious injuries that affected cognitive function.
Q: What can be done to end or alter an existing conservatorship or guardianship?
A: A person can petition the court at any time to request a modification of the terms of a conservatorship, to ask that a conservator be cited for wrongdoing or removed, or to request termination or revocation of a conservatorship. Another option is to request the appointment of a guardian ad litem to investigate issues related to the conservatorship. Contacting Adult Protective Services or law enforcement may also be appropriate in some circumstances.
We hope this Q&A was helpful to you, your loved ones, and your clients. Our clients range from family members advocating for a conservator to individuals opposing the appointment of a conservator. We also serve as court-appointed conservators, assist advisors with conservator matters, and help clients who are victims of fraudulent conservatorships. So, we truly have a 360-degree perspective.
If you have questions or need help, please contact Rebecca Miller, Sally Brewer, or another member of our Special Needs Planning team.