Frequently Asked Questions
WHAT IS CONSERVATORSHIP?
Conservatorship is a legal process by which the court gives decision-making responsibilities to a conservator in areas in which the respondent (the legal term for the person who is the subject of the proceeding) does not have the capacity to make or understand the consequences of his or her decisions.
HOW DOES CONSERVATORSHIP DIFFER FROM GUARDIANSHIP?
In Tennessee, if the respondent is under 18, or if the petition was filed under the Uniform Veterans Guardianship Act, or under the Adult Protective Statutes, the term guardianship is used. In all other cases, the term conservatorship is used.
WHO NEEDS A CONSERVATOR?
When it has been established by clear and convincing evidence that an individual is disabled and in need of the assistance, protection and supervision of the court, a conservatorship is established. Disability in this context hinges on the individual’s having the functional capacity to make decisions of consequence while understanding the consequences of those decisions and not on a medical diagnosis. Examples are decisions regarding healthcare and money.
I'M THE PARENT. WHY CAN'T I MAKE THOSE DECISIONS?
A parent is the legal guardian up until the person’s 18th birthday. At age 18, the parent’s legal authority to make decisions for the person ends. At the age of 18, the person has the legal right and authority to make his or her own decisions regardless of his or her capacity until the court assigns a conservator to make them on the person’s behalf.
WHO CAN BE A CONSERVATOR?
Any interested person or legal entity can be appointed by the court as determined to be in the Respondent’s best interest. Tennessee law provides a priority ranking for consideration as conservator, spouse, parent etc. The court must consider the priority as it considers who should be appointed as conservator, but the priority does not mandate that the Court appoint any particular person or entity.
HOW DO I BECOME A CONSERVATOR?
An attorney must first prepare and file a Petition for Conservatorship with the appropriate court. A guardian ad litem, also an attorney, will then be appointed to report to the court as to the appropriateness of a conservatorship and the appropriateness of the proposed conservator. As part of the process a medical doctor or a licensed psychologist must examine the person and make a sworn statement regarding his or her functional abilities and need or lack of need for a conservator to assist with decision making in different areas. If the respondent wishes to contest the appointment of a conservator, an attorney ad litem, representing the respondent only, may be appointed. Those rights to be removed from the respondent and vested in a conservator, if any, will be determined by the court after a hearing.
IF I'M A CONSERVATOR, AM I FINANCIALLY RESPONSIBLE FOR THAT PERSON?
If the court order assigns you responsibility for the person’s finances or for the person’s estate, you are responsible for making financial decisions for her or him. You are not responsible to pay his or her bills from your own money. However you are responsible for making good decisions about the person’s money and may have to be bonded or insured.
CAN I GET PAID FOR BEING A CONSERVATOR?
That depends on two things. Whether there are resources to pay you, i.e. a trust fund or estate, and whether the court decides you may be paid and how much.
WHAT ARE MY RESPONSIBILITIES AS A CONSERVATOR?
Your responsibilities are those assigned to you in the court order. No more and no less.
IF I'M A CONSERVATOR, DOES THAT PERSON HAVE TO LIVE WITH ME?
IF THIS PERSON GETS INTO TROUBLE, AM I RESPONSIBLE?
Not unless you contributed in some manner to his or her trouble, i.e. allowed her or him to drive without a license, or if you violated some specific responsibility spelled out in the court order. Although the conservator is not a supervisor or a chaperone, it is likely that the court would expect a conservator who has custodial responsibility to use reasonable efforts to protect the person and the public from harm.
IF I'M A CONSERVATOR, DOES THAT PERSON HAVE TO DO WHAT I TELL HIM OR HER?
Your authority is to make decisions for the person in the areas designated by the court. Although you may make a decision and greatly influence the person’s life, you would not have the power to enforce some decisions. For example you could not lock a person up, physically punish him/her or force him/her to work. Other decisions may be within your authority but cannot be realistically enforced without the person’s cooperation. Examples are: you can decide what medicine the person will take but you can’t make the person take it; you can decide that certain behaviors are unacceptable but may not be able to prevent her or him from engaging in them; you can decide where the person is going to live but you can’t make the person stay there.
WHAT RESPONSIBILITIES WILL I HAVE TO THE COURT IF I'M APPOINTED CONSERVATOR?
If you are appointed as conservator of the person or if the respondent has no conservator of the person but you are the conservator of the property, you may be required to file an Annual Status Report with the Clerk of Court containing information specified by the court.
If you are appointed as conservator of the property (or estate, as it is sometimes called), you will usually be ordered to file an annual accounting with the Clerk on the form provided by that office detailing all items of income and expenditure for which you have been responsible each year. Those items must be proved by bank statements and cancelled checks, or copies of the checks, so be sure to keep all bills, receipts, bank statements, checks and check copies for your records. It is safest to keep those items for at least ten years, particularly when you must file tax returns on behalf of the ward.