tennessee conservatorships 101: a guide to the basics
introduction
A conservatorship is a legal arrangement where a person or entity is appointed to make financial and personal decisions on behalf of an individual who is unable to do so themselves. It is typically used when someone is deemed incapacitated due to age, disability, or other factors that prevent them from managing their own affairs.
Understanding conservatorships becoming more important, especially for those residing in Tennessee. With the state's aging population and increased cases of individuals suffering from mental illnesses or disabilities, conservatorships are becoming more common for family to ensure their loved ones are cared for.
Tennessee conservatorship laws outline the criteria for appointing a conservator, the process of obtaining a conservatorship, and the duties and obligations of the conservator. These laws aim to protect vulnerable individuals and ensure that their financial and personal matters are managed in a responsible and ethical manner.
Whether you are considering becoming a conservator for a loved one or simply want to be aware of your rights in case you or a family member may need a conservator in the future, having a comprehensive understanding of Tennessee conservatorship laws is essential. This article aims to provide a concise overview of conservatorship and its significance in Tennessee, offering readers an informed perspective on this legal arrangement.
what is a tennessee conservatorship?
Tennessee law defines “conservatorship” as a "proceeding in which a court removes the decision-making powers and duties, in whole or in part, in a least restrictive manner, from a person with a disability who lacks capacity to make decisions in one or more important areas and places responsibility for one or more of those decisions in a conservator or co-conservators." Tenn. Code Ann. § 34-1-101(4)(B). A "person with a disability" means any person eighteen 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(14).
In other words, a Tennessee conservatorship is a legal status granted to protect adult individuals who are unable to manage their own financial affairs or personal decisions. The purpose of a conservatorship is to appoint a responsible person, known as the conservator, to make decisions on behalf of someone who who can't make those decisions on their own. The conservator is entrusted with managing various important areas in the life of the disabled person, such as finances, paying bills, and ensuring their overall well-being.
The main difference between a conservatorship and a guardianship in Tennessee is that a guardianship is a relationship that a court grants for an individual (the "guardian") to care for and make decisions for a minor. A guardian is appointed by the court to provide partial or full supervision, protection and assistance of the person or property, or both, of a minor. Tenn. Code Ann. § 34-1-101(9). Because they are for the protection of minors, guardianships provide more authority to the person appointed as the guardian, and the guardian-child relationship is second only to the parent-child relationship in terms of rights in Tennessee. That means a guardian has the authority to make most, if not all, decisions on behalf of the child.
This can sometimes be confusing, especially since legally, the term "fiduciary" can mean either a conservator or a guardian. Just remember, if the ward is an adult, it's a conservatorship.
types of conservatorships in tennessee
temporary conservatorship
Under some circumstances, a court may establish an emergency conservatorship. This type of conservatorship is usually for emergencies, and applies when the disabled person is in hospice or the hospital. A temporary conservatorship (expedited healthcare conservatorship) grants someone authority for the limited purpose of consenting to discharge, transfer, and admission and consenting to any financial arrangements or medical care necessary to affect such discharge, transfer or admission to another healthcare facility. Tenn. Code Ann. § 34-1-133.
This type of conservatorship is limited to 60 days. Also, the procedure for an expedited healthcare conservatorship is different than normal; instead of holding a hearing before granting the conservatorship, the court will appoint a conservator and then hold a hearing afterward, within five days of the petition being filed (why it's called "expedited"). Also, the disability of a person is not established by the granting of an expedited healthcare conservatorship.
full conservatorship
As the name implies, a full conservatorship grants the conservator the authority to manage all of the disabled person's affairs, including healthcare decisions, financial decisions, and general day-to-day decisions such as where to live and even what to wear or eat!
limited conservatorship
The other option is a "limited conservatorship." For this type of arrangement, the court must specify which rights will be taken from the disabled person. These can range from healthcare to financial decisions, and will be set out in the court's order. This type of conservatorship is appropriate where the disabled person is able to manage some or most of the aspects of their lives, but may need help with others. For someone who is not disabled, and alternative solution is a healthcare or financial power of attorney (which we recommend everyone have anyways).
No matter which conservatorship you believe is necessary, it's important to discuss it both with the disable person, and an estate planning attorney, to ensure it is in everyone's best interest.
the process of establishing a conservatorship
initiating the process: who can apply?
Under Tennessee Law (Tenn. Code Ann. § 34-3-102), "any person having knowledge of the circumstances necessitating the appointment of a conservator" can file a petition to appoint a conservator for another person.
Although the law is broad, in most cases the person seeking the conservatorship is a relative, a concerned friend, and sometimes an institution or an agency.
required documentation and forms
Although most people are not familiar with the specifics of conservatorships, it's is generally known at least that it is not a simple matter to establish a conservatorship, and the courts in Tennessee take it very seriously.
Although there was a lot of attention generated by Britney Spears' conservatorship, establishing one in Tennessee requires a petition be filed, and that the court finds a conservatorship to be in the best interest in the ward. In most cases, the court will want medical evidence establishing the incapacity of the ward, which can either be from a physician or psychologist. This means that the medical professional must either testify in court, submit a sworn statement, or the petitioner must provide the court with medical records.
how is a conservator appointed?
Once a petition to establish the conservatorship has been filed and the necessary evidence of incapacity has been presented to the court, the court will enter an order establishing the conservatorship and appointing a conservator.
Just who the court appoints is ultimately up to the judge, and will be based on what is in the ward's best interest. However, the statute does provide us with a list of potential candidates, in the order of preference:
"the court shall consider the following persons in the order listed for appointment of the conservator:
The person or persons designated in a writing signed by the alleged person with a disability;
The spouse of the person with a disability;
Any child of the person with a disability;
Closest relative or relatives of the person with a disability;
A district public guardian as described by § 34-7-104; and
Other person or persons."
Usually, the writing expressing the preference of the ward will be in the form of a power of attorney. If not, the court will moved down the list until it can appoint a conservator that serves the best interest of the ward.
duties and responsibilities of a conservator
There are a variety of responsibilities that a conservator may be given by the court. Overall, most of these can be divided into two categories: healthcare decision-making and financial decision-making. Tenn. Code Ann. § 34-3-107 lists the rights that the court can remove from a person and vest in a conservator, including things like making end-of-life decisions, entering into contracts, and allowing the ward to talk visit with others and make telephone calls.
Depending on the severity of the ward's disability, a conservator may be responsible for making all day-to-day decisions for the ward, or may only be responsible for making financial decisions. Ultimately, it will be up to the court to decide exactly which rights and responsibilities will be given to a conservator, and it will depend on each case's individual circumstances.
rights of the conservatee
While a ward will typically be found unable to make decisions on their own, Tennessee law still specifically enumerates the rights of a ward in Tenn. Code Ann. § 34-3-106.
According to the statute, the "respondent" (ward) has the right to:
On demand by respondent or the guardian ad litem, a hearing on the issue of disability;
Present evidence, including testimony or other evidence from a physician, psychologist or senior psychological examiner of the respondent's choosing, and confront, as a cross-examiner, witnesses;
Appeal the final decision on the petition with the assistance of an attorney ad litem or adversary counsel;
Attend any hearing;
Have an attorney ad litem appointed to advocate the interests of the respondent; and,
Request a protective order placing under seal the respondent's financial information and any health information not otherwise protected by § 34-3-105(f).
Chief among these rights is the right to have an attorney represent them, and the right to challenge the request for a conservatorship by presenting their own evidence about their disability. If a conservatorship is created over the ward's objection, they then have the right to appeal that decision, and try to get the order creating the conservatorship overturned.
These rights are extremely important, as they prevent the stripping of rights from individuals who do not actually need a conservator to manage their affairs.
ending or modifying a conservatorship
So, how can a conservatorship be terminated? The short answer is that the court will terminate a conservatorship if it determines that the conservatorship is no longer necessary, that the ward no longer has a disability, or that it is no longer in the ward's best interest.
The process of ending or modifying a conservatorship begins with a petition being filed with the court. The ward or any "interested person on the behalf of the person with a disability" may petition the court at any time for a termination or modification order under this section. Once a petition has been filed, the court will hold a hearing to determine the extent of the ward's disability, and may even order an examination prior to the hearing. Once the hearing has been completed, the court can modify the conservatorship, change conservators, or terminate the conservatorship altogether.
Of course, the conservatorship will also terminate if the ward passes away.
what next?
Understanding conservatorship is crucial for individuals residing in Tennessee. "Conservatorship" refers to a legal arrangement in which a person or entity is given the responsibility of making financial, personal, and medical decisions for someone who is unable to make these decisions on their own. For those under conservatorship, it ensures that their best interests are protected and that their needs are met, especially if they are unable to do so themselves due to physical or mental incapacity. Understanding the conservatorship relationship is vital for friends and family members as it allows them to support their loved one by navigating the legalities involved and ensuring that the appointed conservator is acting in the best interest of the person under their care.
If you are considering a conservatorship for yourself or a loved one, it is crucial to seek legal advice to fully understand the process and protect your rights. A conservatorship is a serious legal matter that involves appointing someone to make important decisions and manage the affairs of an individual who is unable to do so themselves. With the complexity of the legal system and the potential consequences involved, it is essential to consult with an experienced attorney with experience in conservatorship cases. We can guide you through the entire process, from understanding the legal requirements and filing the necessary documents, to representing your interests in court if needed. Seeking professional legal advice ensures that you are informed of all available options, and that your decisions align with the best interests of the individual in question. By consulting with an attorney, you can navigate the conservatorship process with confidence and peace of mind, knowing that you have taken the necessary steps to ensure the well-being of your loved one.
