Distinctions between the legal designations reveal an evolution in the disability community
by Hannah Herner
Conservatorships have been in the spotlight lately, but they’re a concept that the disability community has reckoned with for decades.
Will McMillan
Just last month, news landed that iconic downtown business Ernest Tubb Record Shop and its building are up for sale after 75 years on Lower Broadway. Phillip McCormick is the brother and conservator of longtime Ernest Tubb owner David McCormick. Phillip recently brought charges against the people the shop was sold to in 2020, JesseLee Jones and Emily Ann Cousins, who had power of attorney for David at the time of the sale. Phillip alleges that the couple took money from David’s personal account without his knowledge. Jones and Cousins deny wrongdoing — the two say David McCormick was fully aware of the transactions.
Will McMillan has Down syndrome. When he turned 18, rather than a conservatorship, he and his family opted to abide by a concept called supported decision making. Instead of having a conservator, McMillan consults with a trusted circle of people before making big decisions.
“I’ve learned a lot from my friends who make their own decisions,” McMillan says. “I made my decision to actually be independent and also supported from parents.”
When McMillan goes to the doctor, his father usually goes with him. But because he’s over 18 and not in a conservatorship, McMillan has to give permission to have another person in the room. He and his mother have joint access to his bank account.
Supported decision making, power of attorney and conservatorship all fall under the umbrella term “decision-making supports.” While there are statutes in states including Indiana, Louisiana, Texas and Wisconsin, supported decision making is something that isn’t yet embedded in Tennessee law. What is codified in the state, however, is the idea that in all of this, the court should abide by the “least restrictive alternative” for those with disabilities.
“We would like to see supported decision making adopted into Tennessee law at some point, but for now, our focus is on fulfilling the needs of individuals and families who are exploring options when it comes to making decisions,” says Penny Johnson, coordinator for the Tennessee Center for Decision-Making Support. “We trust that the work we’ve been doing on a daily basis since 2020 will showcase the need for Tennessee law to include [supported decision making] in the near future.”
Erica Reed is senior associate counsel for the Tennessee Department of Intellectual and Developmental Disabilities. She warns that when someone is granted power of attorney, while less restrictive than a conservatorship, it’s still significant. A person with power of attorney can access the individual’s bank account and health care records — and act on their behalf on basically anything, Reed says.
“With a power of attorney, the individual can still make his or her own decisions,” says Reed. “They’re not giving that up. But they are giving that other person that ability to make it for them.”
In a conservatorship — the type of guardianship agreement that entered international headlines last year due to the case of pop star Britney Spears — rights are taken away. The court is meant to go category by category and remove an individual’s rights only when absolutely necessary to keep the person safe. If a right isn’t specifically transferred to a conservator — like property ownership or the ability to make financial decisions — it remains with the individual. The court also appoints a guardian ad litem, who has the duty of considering whether a prospective conservator is a good fit for the role. If someone doesn’t have a person in their life to serve as a conservator, public guardians, law offices and advocacy groups such as The Arc Tennessee can step in.
“Decades ago, you would see orders that would refer to a full conservatorship, and that is basically when the courts would just strip away all rights to the person and give those to a conservator,” Reed says. “That is not something that you see very much at all in modern times, because the courts, they’ve evolved — just as we’ve evolved in society — realizing that just because a person may have a limited capacity in one area, that doesn’t mean that he or she needs all of their rights and decision-making authority stripped from them.”
Will McMillan’s mother Elise McMillan serves as co-director for Vanderbilt Kennedy Center for Excellence in Developmental Disabilities. She says supporting Will in his decision-making reminds her that to some degree, all of us use supported decision making when making big life decisions.
“We all need support in different areas,” she says. “And it’s the same for people with disabilities too. But we have to give folks also the opportunity to make mistakes. Will has taught our family a great deal. And one of the things we learned from him early on is that he has his own life to lead. He can make his own decisions.”
For more information on decision-making support, visit tndecisionmaking.org
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