What is a Conservatorship?
A conservatorship is a court-ordered protection for a disabled or incapacitated person. Tennessee’s conservatorship statutes define “disabled person” 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.” Tenn. Code Ann.§ 34-1-101(7) (2001). These statutes do not define capacity or incapacity. In re Conservatorship of Groves, 109 S.W.3d 317, 330-331 (Tenn. Ct.App. 2003), the Court of Appeals defined incapacity in the context of this statute as follows: Incapacity is the legal status that occurs when a person’s autonomy becomes either partially or totally impaired. A person lacks the ability to be autonomous — to exercise free will — when he or she lacks the ability to absorb information, to understand its implications, to correctly perceive the environment, or to understand the relationship between his or her desires and actions. A person is likewise incapacitated when he or she cannot control his or her actions or behavior.
Conservatorships in Tennessee are established for adults. A “conservator of the person” may be appointed when the individual is incapacitated and needs someone to make housing, health and similar decisions but there are no assets that require protection. A “conservator of the estate” may be appointed to manage and protect assets of the physically or mentally incapacitated person. Usually the same person is appointed for both responsibilities, but there are sometimes separate conservators of the person and the estate. Co-conservators may also be appointed.
How is a Conservator Appointed?
The first step is for the “Petitioner” to file a petition for the protection of an incapacitated or “disabled” person. The Court is required to obtain sufficient information to determine that the proposed ward is a “disabled person” in need of legal protection. A “disabled person” under Tennessee statute is 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.” Incompetence was but is no longer the standard required for the creation of a conservatorship or limited guardianship. Tenn. Code Ann. §§ 34-4-202 and 34-4-302 (repealed 1992). Since 1993,conservatorship proceedings have focused on the capacity of the person for whom the conservatorship is sought. In re Conservatorship of Groves, 109 S.W.3d 317, 330-331 (Tenn. Ct.App. 2003). A conservator will only be appointed for a person who is fully or partially disabled and in need of the court’s assistance, and then only to the extent necessary to protect the person. Tenn.Code Ann.§§ 34-1-126 and 34-1-127 (2001). “The court has an affirmative duty to ascertain and impose the least restrictive alternatives upon the disabled person which are consistent with adequate protection of the disabled person and the disabled person’s property.” Tenn. Code Ann. § 34-1-127(2001). “[P]ublic policy . . . favors allowing incapacitated persons to retain as much autonomy as possible and selecting alternatives that restrict incapacitated persons’ autonomy as little as possible.”109 S.W.3d at 329A physician’s report stating that a conservator is required for the welfare of the disabled person must be filed with the court. An acceptable sample can be found here – physician report. The petitioner is usually, but not always, the person proposed as the conservator in the petition.
Guardian ad Litem Investigates
After the petition is filed, the judge immediately appoints a “guardian ad litem” to investigate the facts of the case and information about the alleged disabled person and the proposed conservator and to make a written report to the judge. The guardian ad litem reviews medical and financial records and interviews the proposed conservator, ward, family members, and doctors. The guardian ad litem’s report recommends approval or denial of the conservatorship, recommends the appropriate person(s) to act as conservator, and recommends the limitations to be placed on the authority of the conservator if one is to be appointed. If the alleged disabled person wants to contest the proceeding, an attorney is appointed for him. The guardian ad litem is independent of both sides and does not represent the alleged disabled person.
Hearing and Appointment
At the hearing, the judge hears the evidence and decides whether the alleged disabled person actually needs the protection sought by the petitioner. The report of the guardian ad litem and the professional opinion of the physician carry greatest weight in helping the judge make his decision. The judge either declares the respondent to be disabled and in need of a conservator of the person, or he dismisses the petition. If there are assets needing management, the judge may appoint as conservator of the estate either the same person named as conservator of the person or some other appropriate person. It is not unusual for the guardian ad litem or the respondent to recommend a person other than the petitioner as conservator.