For individuals who do not have the capacity to make decisions on their own behalf, establishing a conservatorship may be a necessity. However, because the Tennessee court’s first concern is protecting people from seeing their assets fall into the wrong hands, the process of establishing conservatorship can be lengthy. Read on to learn about the four steps required to secure a conservatorship in Tennessee.
What Is a Conservatorship?
A conservatorship is a legally recognized position that allocates the property and decision-making power of a mentally or physically disabled or incapacitated adult to another person. This person, known as the conservator, steps in to make important decisions related to the disabled person’s healthcare and financial affairs after it has been legally established that the disabled person cannot make such decisions for themselves.
Under the terms of conservatorship, the disabled person loses certain rights, including:
- the right to make decisions about mental or medical treatments
- the right to consent or withhold consent to hospitalization or placement in a residential setting, group home, or similar care facility
- the right to receive or release authorization to disclose confidential information
- the right to engage in contractual relationships
- the right to make end-of-life decisions
Because it’s no small matter to take away the rights of any individual, the process of establishing conservatorship in Tennessee is complicated, undergoing four steps.
Establishing Conservatorship in Tennessee
Step 1: Petition for Conservatorship
The first step in appointing a conservator is filing a petition for the protection of the disabled or incapacitated person in Tennessee probate court.
To continue the conservatorship appointment, the court must establish that the disabled person is indeed disabled. Tennessee law defines person with a disability 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.”
Also, the court must establish that the appointment of a conservatorship is the “least restrictive alternative” to protect the disabled person’s well-being and assets.
It should be noted that it is the responsibility of the person petitioning for the conservatorship to file a sworn medical examination report identifying the disabled person’s medical history, the disabled person’s disability, and the need for a conservatorship.
Step 2: Investigation
When the petition for conservatorship is filed, the petition must be sent by the petitioner to the closest relative of the respondent and the disabled person. Thereafter, the court normally appoints an attorney called a guardian ad litem. The guardian ad litem is called upon to investigate the facts of the case, including an examination of the disabled person’s medical and financial records. Interviews with the parties involved can also occur. The guardian ad litem is also directed to investigate how the proposed conservator plans to manage the respondent’s assets.
Once the investigation is completed, the guardian ad litem submits their report to the court. This report includes a recommendation for either approval or denial of the proposed conservatorship, along with further recommendations about the placement of limits on the authority of the proposed conservator.
Generally, a guardian ad litem will not be appointed if the disabled person has retained private counsel to protect their interest.
Step 3: The Court Hearing
The next step involves the court hearing evidence to determine whether the disabled person needs the intervention of the person petitioning for conservatorship, which is to occur within seven (7) to sixty (60) days after the disabled person was served with notice or the date the guardian ad litem was appointed, whichever is later. It is here wherein the judge hears the testimony of witnesses, the report from the guardian ad litem, and the physician’s report.
After weighing the evidence, the judge will decide first whether the person is disabled, then whether the disabled person needs a conservator, then whether the person petitioning is fit to act as a conservator. Finally, the judge will decide on possible limits to the conservator’s power. The judge has an affirmative duty to appoint limited conservators when possible. Under Tennessee law, the judge must craft an order that specifically names which rights are being taken away from the disabled person and which rights are being kept.
Step 4: Duties of Conservator
Once the conservatorship in Tennessee has been approved, the conservator is required to take inventory of the disabled person’s assets and submit a sworn accounting. Upon submission of this plan, the court further requires that the conservator keep detailed records of any receipts and reimbursements made going forward.
Get Help With Your Conservatorship Process in Murfreesboro, TN
The process of establishing conservatorship in Tennessee is long and complex and becomes more so when the proposed conservatorship is disputed. The law firm of Hudson, Reed & Christiansen in Murfreesboro, TN, can remove the uncertainty of such a process and help the court reach the best decision for everyone involved. Contact us today.