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Conservatorship
What is a Conservatorship?
A conservatorship is a court-ordered protection for a
disabled or incapacitated person. Tennessee’s conservatorship
statutes define “disabled person” as “any person eighteen (18)years of age
or older determined by the court to be in need of partial or full
supervision, protection and assistance by reason of mental illness, physical
illness or injury, developmental disability or other mental or physical
incapacity.” Tenn. Code Ann.§ 34-1-101(7) (2001). These statutes do not
define capacity or incapacity. In re Conservatorship of Groves, 109 S.W.3d 317, 330-331 (Tenn. Ct.App. 2003), the Court of Appeals defined incapacity in the context of this statuteas follows:Incapacity is the legal status that occurs when a person’s autonomybecomes either partially or totally impaired. A person lacks theability to be autonomous — to exercise free will — when he or shelacks the ability to absorb information, to understand its implications,to correctly perceive the environment, or to understand therelationship between his or her desires and actions. A person islikewise incapacitated when he or she cannot control his or heractions or behavior
Conservatorships in Tennessee are
established for adults. A “conservator of the person” may be appointed
when the individual is incapacitated and needs someone to make housing,
health and similar decisions but there are no assets that require
protection. A “conservator of the estate” may be appointed to manage and
protect assets of the physically or mentally incapacitated person. Usually
the same person is appointed for both responsibilities, but there are
sometimes separate conservators of the person and the estate.
Co-conservators may also be appointed.
How is a Conservator Appointed?
1. Petition
The first step is for the “Petitioner” to file a petition
for the protection of an incapacitated or “disabled” person. The Court
is required to obtain sufficient information to determine that the proposed
ward is a “disabled person” in need of legal protection. A “disabled person”
under Tennessee statute is an adult who is “in need of full or partial
supervision, protection and assistance by reason of mental illness, physical
illness or injury, developmental disability or other mental or physical
incapacity.” Incompetence was but is no longer the standard required for the creation of a conservatorship or limited guardianship. Tenn. Code Ann. §§ 34-4-202 and 34-4-302 (repealed 1992). Since 1993,conservatorship proceedings have focused on the capacity of the person for whom the conservatorship is sought.
In re Conservatorship of Groves, 109 S.W.3d 317, 330-331 (Tenn. Ct.App. 2003). A conservator will only be appointed for a person who is fully or partially disabled and in need of the court’s assistance, and then only to the extent necessary to protect the person. Tenn.Code Ann.§§ 34-1-126 and 34-1-127 (2001). “The court has an affirmative duty to ascertain and impose the least restrictive alternatives upon the disabled person which are consistent with adequate protection of the disabled person and the disabled person’s property.” Tenn. Code Ann. § 34-1-127(2001). “[P]ublic policy . . . favors allowing incapacitated persons to retain as much autonomy as possible and selecting alternatives that restrict incapacitated persons’ autonomy as little as possible.”109 S.W.3d at 329A physician’s report stating that a conservator is required for
the welfare of the disabled person must be filed with the court. An
acceptable sample can be found here -
physician report. The
petitioner is usually, but not always, the person proposed as the
conservator in the petition.
2. Guardian ad Litem Investigates
After the petition is filed, the judge immediately
appoints a “guardian ad litem” to investigate the facts of the case and
information about the alleged disabled person and the proposed conservator
and to make a written report to the judge. The guardian ad litem reviews
medical and financial records and interviews the proposed conservator, ward,
family members, and doctors. The guardian ad litem’s report recommends
approval or denial of the conservatorship, recommends the appropriate
person(s) to act as conservator, and recommends the limitations to be placed
on the authority of the conservator if one is to be appointed. If the
alleged disabled person wants to contest the proceeding, an attorney is
appointed for him. The guardian ad litem is independent of both sides and
does not represent the alleged disabled person.
3. Hearing and Appointment
At the hearing, the judge hears the evidence and decides
whether the alleged disabled person actually needs the protection sought by
the petitioner. The report of the guardian ad litem and the professional
opinion of the physician carry greatest weight in helping the judge make his
decision. The judge either declares the respondent to be disabled and in
need of a conservator of the person, or he dismisses the petition. If there
are assets needing management, the judge may appoint as conservator of the
estate either the same person named as conservator of the person or some
other appropriate person. It is not unusual for the guardian ad litem or the
respondent to recommend a person other than the petitioner as conservator.
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