Articles
Conservatorship Process
by William King Self, Jr., CELA
What is a Conservatorship?
A conservatorship is a court-ordered protection for a disabled or incapacitated person. Conservatorships in Tennessee are established for adults. Though the meaning in other states varies, “guardianship” is only used in Tennessee for protection of minors. 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?
1. Petition
The first step is for the “petitioner” to file a petition for the protection of an incapacitated or “disabled” person. In Tennessee, the petition is normally filed in the Probate Court or the Chancery Court. 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.” A physician’s report stating that a conservator is required for the welfare of the disabled person must be filed with the court. The petitioner is usually, but not always, the person proposed as the conservator in the petition.
2. 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.
3. 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.
The judge’s Order is required by Tennessee law to impose the least restrictive control over the disabled person. That control is given to the conservator, who is required to protect the disabled person and his assets. Rights that are inappropriate for the ward to keep may be removed, and equivalent authority is given to the conservator.
