Tennessee Estate Law Blog
You may have heard of a conservatorship, but you may not know exactly what it entails. A conservatorship is court process intended to protect a disabled or incapacitated adult and his or her property by allocating decision-making responsibilities to another person. The person given this decision-making responsibility is known as a conservator. Conservatorships are most often used for aging relatives. However, a conservatorship can also be suitable for those temporarily disabled from an illness or an accident, as well as those emotionally, physically, or mentally unable to care for themselves. There is a certain process that courts go through to appoint a conservator.
How is the conservator appointed?
The first step that must be taken in appointing a conservator is filing a petition for the protection of an incapacitated or disabled person. In Tennessee, this petition is typically filed in the probate court. The court must establish two things before establishing a conservatorship: 1) the individual is a “disabled person”; and 2) the appointment of a conservator is the “least restrictive alternative” to protect the disabled person for health or financial reasons. Tennessee law defines a “disabled person” as 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.” The individual petitioning for the conservator appointment must file a physician’s report identifying the need for a conservator for the welfare of the disabled individual.
Guardian ad litem begins investigation
Upon the filing of a petition for conservatorship, the court appoints a separate attorney known as a guardian ad litem to investigate the facts of the case acting as a third party. The guardian ad litem examines medical and financial records as well as conducts interviews with the individuals involved. Upon the conclusion of the investigation but before the hearing, the guardian ad litem submits a report to the court with a recommendation either approving or denying the conservatorship. The guardian ad litem may also recommend the most appropriate person to act as conservator and/or place any limitations on the authority of the conservator.
Court hearing and appointment
At the hearing, the court hears the evidence and determines whether the alleged disabled individual actually needs the protection of the petitioner. The judge can hear the testimony of witnesses both for and against the appointment. In addition, the judge will use the report from the guardian ad litem and the report from the physician as evidence to make a decision. Upon weighing all of the relevant evidence, the judge will make the decision whether to declare that the individual is disabled and needs a conservator or not. The judge may determine that the petitioner is indeed fit to be the conservator, or the judge could determine that someone other than the petitioner should serve as conservator. In addition, the judge could limit the authority of the conservator if he or she sees fit.
Conservator’s property management plan
If the disabled individual has property that needs managing, the court would require that the conservator take a detailed inventory and submit what is known as a property management plan. The court requires approval of this plan before the conservator is able to manage the property. In addition, the court requires that the conservator maintain good records of any receipts and disbursements.
If you have questions about a conservatorship in Tennessee, be sure to contact one of our experienced attorneys. Our team of dedicated Tennessee conservatorship attorneys would be happy to assist you in any way.