Conservatorships and Guardianships

• Protection of Disabled Loved Ones
• Conservatorship Petitions
• Administration of Conservatorships

What is a Conservatorship?

A conservatorship is a court-supervised protective process for a disabled or incapacitated person adult and his property.  (Guardianship is the term used for protection of juveniles in Tennessee.) After the filing of a petition by an interested person, the alleged disabled person (who is the defendant in the conservatorship proceeding) and close relatives are notified of a hearing, and the judge appoints an attorney, called a guardian ad litem to investigate and make its recommendation in a written report delivered to the court. The defendant alleged disabled person has the right to an attorney to oppose the petition.  If the judge decides, after investigation and a hearing, that the alleged disabled person needs the protection and supervision of the court, a conservator is appointed. The court removes certain of the disabled person’s legal rights and grants them to the conservator. The disabled person becomes a ward of the court, and subject to the court’s jurisdiction and protection.

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 Shelby County, Tennessee, the petition is normally filed in the Probate Court. Under Tennessee law, a conservatorship may not be established unless the court determines not only that the proposed ward is a “disabled person,” but also that appointing a conservator is the “least restrictive alternative” needed to protect the disabled person for health or financial reasons. 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.

If the disabled person is already adequately protected by someone the disabled person has previously appointed under financial and health care durable powers of attorney, no conservatorship may be needed. Sometimes, however, a conservatorship is necessary because the existing agent under a durable power of attorney is abusing his or her authority. The petitioner is usually, but not always, the person proposed as the conservator in the petition.

Sometimes the alleged disabled person does not need or want the court to intervene for a conservator. A conservatorship is a serious undertaking — the court is being asked to remove legal rights from the alleged disabled person and give them to someone else. It can be a humiliating and unnecessary process for someone who does not need the court’s intervention. Tennessee law requires the court to appoint an “attorney ad litem” at the request of the alleged disabled person. The attorney ad litem’s job is to defend the alleged disabled person’s rights, and to oppose having those rights removed, either because no assistance is needed or because there are other less-restrictive alternatives that are more appropriate for the disabled person’s protection.

2. The Guardian ad Litem Investigates

After the petition is filed, a hearing is set and the court appoints another lawyer, called the guardian ad litem, to investigate the facts of the case. The guardian ad litem reviews medical and financial records and interviews the proposed conservator, the alleged disabled person, family members, and other persons as appropriate. The guardian ad litem then files a report with the court a few days before the hearing, recommending approval or denial of the conservatorship, recommending the appropriate person(s) to act as conservator of the person and/or estate, and recommending the limitations to be placed on the authority of the conservator.  Copies of the report are delivered to the petitioner and the defendant/alleged disabled person, and the attorney ad litem, if one has been appointed.

3. Hearing and Appointment

At the hearing, the court hears the evidence and decides whether the alleged disabled person actually needs the protection sought by the petitioner. Witnesses for and against the appointment may testify.  The written report of the guardian ad litem and the professional opinion of the physician carry great weight in helping the judge make his decision, but testimony can be important in close cases. If the petition is opposed by the defendant/alleged disabled person, the attorney-ad-litem also presents witnesses and evidence against the petition.

The court either declares the defendant to be disabled and in need of a conservator of the person and/or his estate, or dismisses the petition. The court may order a limited conservatorship if the disabled person needs only limited assistance. The court will appoint a conservator of the estate to manage any assets. The conservator of the person may be appointed to be conservator of the estate or the court may appoint another appropriate person. Sometimes, the court orders a conservatorship to be established but appoints someone other than the petitioner as conservator. It is not unusual for either the petitioner or the guardian ad litem to recommend someone other than the petitioner as conservator.

4. Property Management Plan and Accountings

If the disabled person has property that needs to be managed, the court requires the conservator of the estate to take an inventory of the property and submit a property management plan, which the judge must approve before the conservator has ongoing authority to manage the property. Thereafter, the conservator must maintain good records of all receipts and disbursements, and must file a detailed accounting annually.

What are the Responsibilities of a Conservator?

The duties of the conservator will vary depending upon the court’s order appointing a conservator, and whether the appointment is for “conservator of the estate” or “conservator of the person,” or both, but there are some basic obligations that go with acceptance of the duties of conservator:

Conservator of the Person’s Responsibilities

1. Protection of the Ward

Often the conservator’s most important responsibility is to see that the ward is living in a safe environment. This may mean engaging a geriatric care manager or other knowledgeable person to make the home a safe place for the ward to live. It may mean hiring care-givers to watch the ward to see that he doesn't harm himself, whether by malnourishment or accident. It may mean taking the ward out of the home and placing him in another safe place, such as an assisted living facility or nursing home.

2. Health Care

Unless the conservatorship order reserves medical authority to the ward who has mental capacity or there is already another health care agent for the ward (see below), the conservator is responsible for seeing that all the health care needs of the ward are met, including both medical and psychiatric. If the ward has previously executed a living will or otherwise made known his wishes in the event of a terminal illness, the conservator is bound to follow those wishes. The conservator would ordinarily request instructions from the court before removing life support, for example, unless there was a living will to follow.

If the ward had made an appointment of a health care agent through a durable power of attorney for health care or other document, that agency is not cancelled by the conservatorship, and the previous health care agent is still in charge of medical matters.

3. Act in Ward’s Best Interest

This is a high fiduciary responsibility, but best interest of the ward may actually include the decision to withdraw medical treatment in a terminal illness, if the ward while having mental capacity had left instructions to do so in a living will, for example.

Conservator of the Estate’s Responsibilities

In general, the conservator of the estate has a fiduciary duty to act in the ward’s best interests, a high standard of care and responsibility. Conflicts of interest or taking actions that help another person at the expense of the ward are generally prohibited. The conservator of the estate’s job is to handle all the financial affairs of the ward and pay all the ward’s bills carefully and properly. The conservator of the estate may be responsible for substantial assets, in some cases, and if so, is obligated to invest them safely and prudently, hiring financial advisors, accountants, and attorneys, if appropriate, to carry out those duties. The expenses of those advisors must be included in the budget and management plan approved by the court.

Statutory Responsibilities:

1. Inventory of Assets

The conservator of the estate is required to take control of the assets of the ward and to file with the court an inventory of those assets. All bank and investment accounts will be transferred into the conservator’s name for the benefit of the ward.

2. Management Plan

The conservator of the estate is required to develop a budget and a property management plan for use of the assets of the ward for the coming year. Only prudent investments and expenditures outlined in the plan and subsequently approved by the judge will be permitted. The conservator will be personally liable for any unauthorized expenditures of the ward’s assets.

3. Annual Accounting

The conservator of the estate must deliver to the probate court clerk a highly detailed accounting of the income and expenditures for the ward at the end of each year. Copies of all checks, bank statements and the supporting information about income and expenses must be delivered to the clerk for careful review. Any revisions to the management plan are thereafter submitted to the judge for approval.

4. Closing the Estate

Upon the death of the ward, the conservator is responsible for seeing to the burial of the ward, in conjunction with appropriate family members, and thereafter must prepare a final accounting for the court before he may be discharged from his responsibilities.