At some point in your life, you may be faced with the decision to seek guardianship over an adult family member or loved one. Referred to as “conservatorship” in Tennessee, you may decide to petition to become the conservator of an adult who is disabled or otherwise unable to safely care for himself/herself. To help you better understand what is involved in an adult guardianship (conservatorship), a Murfreesboro family law lawyer at Bennett, Michael & Hornsby explains the conservatorship process in Tennessee.
What Is Conservatorship?
Conservatorship is a proceeding in which a court removes the decision-making powers and duties, in whole or in part, in a least restrictive manner, from a person with a disability who lacks capacity to make decisions in one or more important areas and places responsibility for one or more of those decisions in a conservator or co-conservators. A conservator can be an individual or an agency that is authorized to act on behalf of disabled adult to assure that the person’s health, safety, and welfare needs are met and that his or her rights are protected. Tennessee law defines a person with a disability, for purposes of appointing a conservator, 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.”
Types of Conservatorship
There are two broad categories of conservatorship in Tennessee, conservatorship of the person and conservatorship of the estate. A conservator of the person has the legal authority to make personal decisions for the disabled adult, such as where he/she will live and what physicians or specialists will treat the disabled individual. A conservator of the estate may control assets as well as make financial decisions on behalf of the disabled person. You could be appointed to be a conservator of the person, the estate, or both.
Who Can Be Appointed as a Conservator?
Subject to certain qualifications, any adult can petition to be appointed as a conservator; however, the court will make the ultimate decision. The court must consider what is in the best interest of the disabled person. In addition, Tennessee Code § 34-3-103 dictates that the court consider the following people in order when appointing a conservator:
- The person or persons designated in a writing signed by the alleged person with a disability.
- The spouse of the person with a disability.
- Any child of the person with a disability.
- Closest relative or relatives of the person with a disability.
- A district public guardian as described by § 34-7-104.
- Other person or persons.
How Is a Conservator Appointed?
Because conservatorship is a very restrictive option that takes considerable decision-making authority away from the disabled person, a lengthy court process must take place before you can be appointed as a conservator. A petition must be filed with the appropriate court setting forth the reasons why conservatorship is necessary. Notice must be given to the proposed ward (the disabled person) and close family members. Those individuals may oppose the appointment of a conservator. The court will likely appoint a Guardian ad Litem (a neutral attorney) to help research the situation and report to the court their findings and recommendations.
The court will set the matter for a hearing at which time you will need to convince the court that a conservator is needed. By law, the court must consider less restrictive alternatives to conservatorship, meaning you have the burden of proof if you are seeking a conservatorship. If the court is satisfied that a conservator is necessary, the court will then decide if you are a suitable candidate. If you are appointed to be a conservator, the court will provide you with an order that describes what type of conservatorship was granted and any restrictions to your role as conservator.
Contact a Murfreesboro Family Law Lawyer
If you have additional questions about adult guardianship (conservatorship) in Tennessee, it is important that you consult with an experienced Murfreesboro family law lawyer to discuss your legal options. Contact the team at Bennett, Michael & Hornsby as soon as possible by calling 615-898-1560 to schedule your free appointment.