The steps below are what happens in Tennessee when someone asks that the Court name a Conservator(s) for an individual to help in decision-making.
While it may be possible for a non-lawyer to file and obtain a Conservatorship, it will be very difficult. The process is very complex and is governed by different practices in every County inTennessee. It is easy to make an error that can affect both the process and the authority in the Order appointing a Conservator.
It needs to be determined whether a person over 18 years of age needs a Conservator and in what types of situations.
Does the person need someone else to make decisions about personal choices, medical care or finances because he/she is unable to make decisions? Questions to be asked include whether the person understands the different options, the consequences of decisions, or whether assistance is needed.
Note: Whether or not others agree with the person’s decisions is not what the Court will consider. The Court must determine that a person lacks capacity to make decisions and someone else must make those decisions for the person. The Court appoints a Conservator (also called a fiduciary) as an agent of the Court to make “best interest” decisions for the person. The interest of the Conservator and others is not a consideration.
Tennessee Code Annotated Title 34 Chapters 1 and 3 can be found at http://www.lexisnexis.com/hottopics/tncode/ These chapters provide the statutory requirements for filing for a Conservatorship. Some Courts in some locations have forms and instructions online that may be used as a guide but these may not apply in other Courts. An example can be found at http://www.rutherfordcountytn.gov/pdfs/conservator_handbook0511.pdf
Contact should be made with a Court Clerk in the County in which the person who needs a Conservator resides. This could be either Circuit Court Clerk or Chancery Clerk and Master, depending on what Court handles Conservatorships. Contact can be made with the Clerk of that Court and local rules of practice as they apply to Conservatorship proceedings can be obtained. The Clerk may or may not have the information. The Clerk may suggest that a lawyer be enlisted. He/she cannot give legal advice regarding how to file for a Conservatorship. There may be a website with some information and forms.
It is necessary to have a sworn medical examination of the person from a physician, psychologist or psychological examiner. The examination must be sworn to under oath and must be within 90 days of the date when a Petition for Conservatorship is filed. There are several examples of the sworn examination online. For example there is information on the website for Davidson County Probate Court or Rutherford County Chancery Court. Each county may differ in its rules and some Courts may want a different sworn statement. No one other than the physician, psychologist or psychological examiner may sign the examination.
Someone must file a “Petition” with the Court to ask the judge to appoint a Conservator. Any “interested party” may file the Petition, including a relative or caregiver who is taking care of a person, a friend, a hospital or nursing home, an agency or other facility providing care.
The Petition must include all of the information required by Title 34, including the names and addresses of all relatives, caregivers or interested parties. They will receive a formal notice of the Petition. The Petitioner must disclose if he/she has been convicted of a felony or misdemeanor.
The Petition should name any proposed Conservator (and co-conservator and standby conservator if any) along with pertinent information. Any proposed Conservator cannot have been convicted of a felony for which he/she was incarcerated. The statute includes a listing of preferences for appointment of various family members although the Court is not bound to appoint a Conservator based on that list.
The Petition must include a description of the person’s illness or disability, the reasons for the need for the Conservatorship, and the specific types of decisions for which the Conservator will be responsible. Since the law states that any rights not specifically removed from person will remain with that person, each right that should be removed should be listed. For example if it is claimed that the person cannot make informed decisions for his/her medical care or where to live, the Petition should request that the Conservator have authority over those decisions. New amendments to the Title 34 were effective on July 1, 2013, and include some rights to be considered.
A description of the person’s property and income should be attached to the petition. This is important if someone needs a Conservator for financial decisions. This can be amended later. It is also important to show that there is no need for authority over financial matters if the person is indigent.
- An inventory of the person’s significant assets and/or income should be included.
- An investment plan will likely be required if there are assets.
- The law requires any Conservator to furnish a bond to prevent the protected person from possibly losing his or her money or property, unless the Court makes a specific finding why a bond is not required. The amount of the bond is based on the value of the money and property belonging to the protected person.
- An attorney and possibly a professional financial advisor may be required because investments and use of the person’s assets and income are limited by law.
The person or facility filing the petition is called the “Petitioner.” The Petitioner will need to swear that the information in the Petition is truthful. There is also a filing fee. The amount varies but is usually less than $400. There may be options for filing on behalf of a person who is indigent by using a uniform affidavit of indigency. This will need to be discussed with the Court Clerk.
The Court will set a date for a hearing after the Petition for Conservatorship is filed. A notice of the hearing and the notice of the person’s rights may be required to be sent to the family, the person and the caregivers. The notices of the hearing must include the date, time, and place of the hearing for each person notified. It may also be necessary to file a proposed Order appointing a Guardian ad Litem (GAL). (This will be discussed later.) Usually the hearing will be set at least 30 days in the future unless there is an emergency. Note: New emergency procedures that have mandatory requirements became law on July 1, 2013.
The Court will likely appoint a local attorney as the Guardian ad Litem (GAL). It is the duty of the GAL to investigate the situation to protect the rights of the person for whom a Conservator is requested and make a report to the Court. The statute sets forth the scope of the investigation, and it includes whether or not a Conservator is needed, whether the proposed Conservator is suitable and best for the job, the authority needed by the Conservator and the financial situation of the person. The fee for the GAL can be several hundred to several thousand dollars depending on the complexity of the situation and the duties assigned by the Court. The fee can be paid out of the person’s property if the Conservatorship is granted and the Court determines that is appropriate. Or the Petitioner or other party may have to pay the fee.
If the GAL determines or the Court finds that the person objects to the Conservatorship, the Court will appoint an Attorney ad Litem (AAL) to represent the person. This attorney will take his/her instructions from the person and represent him/her prior to and during the hearing. His/Her fees will usually be handled similarly to the GAL.
A Conservatorship hearing will be held. Normally the Petitioner, proposed Conservator(s), the person, witnesses and any objecting party will have to be present. If there is no disagreement and the person does not object to having a Conservator appointed, the hearing may be rather brief and simply involve appearance before the Court. If there are any disputed issues, the hearing will be like a trial. It may involve witnesses, trial preparation, cross examination and hours or days of testimony. A Conservatorship involves taking away the rights most dear to any person and should not be done without protecting his /her rights to object.
After the hearing, the Court will decide if a Conservator is appropriate and issue an Order. Normally this will include what happened and the reasons for the decisions made. If the decision is that the Court appoints a Conservator, the order will identify the Conservator(s) and their responsibilities and authority. Normally it will state specifically what authority is removed from the person. Under Tennessee law, the Conservator only has authority in the areas listed in the Order. The Order will list the reports that the Conservator must make to the Court such as annual financial or status reports, inventory, and requirements of bond. Drafting of the order will be the responsibility of the prevailing party.
The Order will also set the fees for the GAL, the AAL and assign the responsibility for the Court costs.. After the hearing, if a Conservator is appointed, he/she will swear an oath and receive Letters of Conservatorship.