Friday, October 11, 2002, Vol. 116, No. 198


Guardianships make long-term decisions easier


The Daily News

As Memphis moves forward into the 21st century, area residents are faced with an inevitable fact the population is aging, and people over 65 comprise more of the areas demographic than ever before.

This means more families are facing difficult decisions about how to handle the personal affairs of aging family members who might not be able to take care of themselves.

The Office of the Public Guardian, part of the Aging Commission of the Mid-South, is working to inform area residents about guardianships and conservatorships what they are, how they work and when they are needed.

The office is hosting several events this month in support of the National Guardianship Associations designation of October as National Guardianship Awareness Month.

Each year, October is set aside as a month of recognition to acknowledge guardians and conservators across the country, said public guardian Peggy Dobbins.

Dobbins office provides the only public guardianship program in the Memphis. Her role is to serve as guardian for people 60 and older who are unable to manage their own affairs and who have no family members, friends, banks or corporations willing to act on their behalf.

Regardless of finances or situation that doesnt matter we serve as public guardian for elderly people, she said.

In Tennessee, three types of guardianship/conservatorship situations exist: guardianship of a minor under 18; veterans administration guardianship of a disabled veteran of any age; and conservatorship of someone 18 or older.

A conservatorship is a court proceeding in which someone petitions the court to gain authority to act on behalf of a person who can no longer handle his or her affairs because of mental or physical limitations.

Conservators are responsible for various aspect of the lives of those in their charge, which can include maintaining them in appropriate housing, making sure they have food and care, and managing their financial, real estate and other assets, Dobbins said.

A licensed physician must provide an affidavit confirming the persons incompetence before a guardianship or conservatorship is established.

Most of the time, a conservator is related to or closely affiliated with the person in his or her charge, said Probate Court Judge Robert Benham.

The statutes have an order of who in the line should be a conservator or a guardian, Benham said. With conservatorships, the spouse has the first right. If there is no spouse, then it would evolve to children, grandchildren, nieces, nephews, and so forth.

Benham said a misconception about conservatorships is the belief they are very expensive.

But the alternatives may be very, very expensive, he said. The alternatives are people who are not qualified to handle or invest money being entrusted with money, and, frankly, losing it.

The court requires conservators to provide property management plans, he said.

And, if people dont understand investments, then theyd better just leave the money in an FDIC-insured institution, he said.

Attorney Tommy Fullen, who handles conservatorship cases, said the expense of conservatorship proceedings which include at least two attorney fees, a doctor visit for a sworn affidavit of incompetence, court filing fees and a possible bond premium can be avoided if the person who can no longer handle his or her affairs previously granted someone power of attorney to act on his or her behalf, or created a joint bank account with a trusted relative or friend.

But usually, people wait too long before anything occurs, and, though they had the opportunity to do that, they didnt do it, Fullen said.

Besides, conservatorships provide safeguards that ensure peoples assets are properly handled, which can alleviate family conflicts about how to manage family members affairs, Fullen said.

He said a common misconception surrounding conservatorships is that conservators have the authority to use their charges assets in any way they see fit.

In reality, they are limited by what the judge allows them to do, Fullen said. There is usually a monthly encroachment, and they can spend so much money per month. Those limitations are what people sometimes dont understand, because they think they have unfettered access to pay whatever they want to, and they cant do that.

Thats usually where conflict occurs.

Fullen said something else people dont always understand is that any changes related to a conservatorship must be approved by the court.

Sometimes emergency situations do occur during the course of a conservatorship, but youre bound by what you can do, he said. Even if an emergency pops up, you have to go back to court and get it approved. A lot of times, for example, people have real estate that has to be kept up, and sometimes that becomes cumbersome and you have to go ahead and sell the real estate.

But anything you do has to be approved by the court.

Benham said one problem with conservatorships involves conservator theft of someones assets. The problem is addressed by the fiduciary bond required in virtually all conservator proceedings, he said.

Then, the person under disability is made whole by the bonding company, and the bonding company goes after the wrongdoer, he said.

He recommends, in addition, that potential conservators do their homework before jumping into the process.

You need to know what questions to ask, and, as they say in the horse trade, you need to vet people out, he said. You need to vet lawyers out as to how much experience they have in this area and what they do to keep up in this area.

There needs to be a book on how to pick a lawyer.

Activities planned during National Guardianship Awareness Month include a public guardianship presentation by Dobbins at the Southeastern Area Agency on Aging Conference in Lexington, Ky., next week, as well as a Guardianship Awareness Day brunch planned for Oct. 30.

The brunch is 10 a.m. to 2 p.m. in the Aging Network Conference Room at 2670 Union Extended, Suite 1000.