Conservatorships and Guardianships
Guardianship and Conservatorship Lawyers in Chattanooga, TN
At Stulce & Yantis, we assist numerous individuals in the Chattanooga area who need to establish a conservatorship or guardianship for a loved one. We have worked in this area of the law for many years with great success.
Guardianships and conservatorships are created by a court to grant an individual power over a person’s estate (finances, property, etc.) and/or person (medical care, etc.). Because these are very powerful mechanisms by which the person in charge is granted a lot of power, there are many requirements in place to establish a guardianship or conservatorship.
For starters, let’s discuss the differences between guardianships and a conservatorships.
A guardianship is for the benefit of a minor (i.e. a person under the age of 18). Because parents already are the “joint and natural guardians of their minor children” under Tennessee law, most of the time there is probably no need to establish a guardianship for a minor with parents around.
There are some exceptions to this, so please be sure to speak with an attorney.
Guardianships are more common when there is no parent or someone else empowered to make decisions about the child’s person or estate.
When the person reaches the age of eighteen, the guardianship is terminated. Please read Tennessee Code Annotated § 34-2-106 for more information about how a guardianship can be continued to the person’s twenty-fifth birthday.
A conservatorship, on the other hand, is established for someone who is over the age of 18. Conservatorships are meant for people whose mental and/or physical disability prevents them from handling their affairs.
To assist the person, a court appoints what is called a “conservator” who will be empowered to act and make decisions on behalf of the disabled person.
When a conservator takes a particular action it is as though the disabled person was the one who acted. For example, when a conservator writes a check or signs an instrument, it is as though the disabled person was the one who did those things.
The rights transferred from a disabled person to a conservator typically include the right to receive income, dispose of property, execute instruments, make purchases, enter into contractual relationships, and to make all decisions regarding living arrangements, medical needs, and financial affairs. A conservator can gain access to accounts and other records of the person.
Because a conservator is given so much power, there are several requirements by law which must be met before a court will establish a conservator. Please see the FAQ below to learn about some of these requirements and how the process works.
Frequently Asked Questions about Conservatorships:
Because a lot of you have questions about conservatorships, we decided to put together answers to a list of frequently asked questions. If you are in Chattanooga or an area nearby, please call us at (423) 267-9072 to see how we can help you.
Is my relative or loved one eligible for a conservatorship?
This decision will ultimately be left up to a judge. It must be clear that the person is suffering from a mental or physical condition which means the person currently cannot handle his/her own affairs.
In fact, a physician or licensed psychologist is required to sign a sworn affidavit about the person’s condition and further stating that in his/her opinion a conservatorship is necessary.
If you have a relative or loved one who simply cannot handle his/her affairs (perhaps from Alzheimer’s, dementia, a coma, or is suffering from a serious physical condition), a conservatorship is likely appropriate.
What is the process for establishing a conservatorship?
Tennessee law requires that a sworn petition be filed. Tenn. Code Ann. 34-3-104 provides the requirements of the petition. The petition is to include information about the disabled person, the reasons for requesting a conservatorship, the proposed conservator, a sworn statement from a physician or licensed psychologist, and more.
An attorney will draft and fill the petition on your behalf.
The petition is then served upon the disabled person in much the same way a lawsuit is served upon an opposing party.
After the petition is filed, the court will typically set a hearing date for a few weeks away.
The court could also appoint what is called a “guardian ad litem” on behalf of the disabled person. A guardian ad litem is supposed to serve as the “eyes and ears of the court” and to advocate for the best interests of the disabled person. In Tennessee, a guardian ad litem is required to be an attorney.
A court will waive a guardian ad litem in some circumstances, but one will be appointed in the majority of instances. This provides one more safeguard to ensure a conservatorship is not established for someone who does not need one and/or to ensure that the proper person is named conservator.
The disabled person has the right to contest the proceedings. He/she can even hire an attorney or have one appointed by the court. There have been instances when people have tried to get conservatorships established for relatives who did not actually need them in an attempt to steal from them.
If it is clear to the court that the contents of the petition are true, the disabled person does not contest the proceedings, the guardian ad litem approves, and all other requirements have been met, the court will establish the conservatorship. Even if the person contests the proceedings, the court can still approve of the conservatorship.
At that point, the court will name a conservator.
What court or judge will hear the case?
In Tennessee, the appropriate jurisdiction and venue is the county where the allegedly disabled person resides. The majority of our cases are from Hamilton County, TN and conservatorships are overseen by the Chancery Court.
How much does it cost?
The total cost for establishing a conservatorship depends on a variety of factors. For example, there is the initial filing fee which must be paid upon filing the petition with the court. There will also be final court costs when the court proceedings have been completed.
In addition, there are attorney’s fees associated with the attorney who represents the person who is seeking to have the conservatorship set up. These fees include the time required for drafting the petition, attending hearings, and seeing to it that everything is carried out appropriately.
If a guardian ad litem is appointed, the court will likely order a fee be paid to that person for his/her time and expenses.
Also, if the disabled person requests an attorney to contest the proceedings, those attorney fees will also be a factor.
Who must pay to have the conservatorship established?
If a court finds that the allegedly disabled person was in need of a conservator, a lot of times the court will require that the cost for establishing the conservatorship be paid from the disabled person’s assets. This would include all attorney’s fees and court costs.
On the other hand, if a court found that the person who was alleged to be disabled was not in need of a conservator, it is possible that the petitioner (the one who was asking the court to establish the conservator) will be required to pay all costs and fees.
For example, if it appeared the petitioner was merely trying to be appointed as conservator to access the other person’s assets, a court would probably require the petitioner to pay all costs.
Every situation is different and therefore it is difficult to provide a hard and fast rule about who will have to pay.
While it is true that the petitioner might be required to pay for some or all of the costs involved, that should not stop you from seeking a conservatorship for a disabled person. Again, if it is clear the person needs a conservator and the petitioner was acting in the best interests of the person, a court would probably not make the
How long does the process usually take?
The length of time depends on the nature of the case, whether the allegedly disabled person wants to contest the proceedings, whether family members or other interested parties contest the proceedings or who should be named conservator, etc.
In a straightforward case—one in which a person is clearly in need of a conservator and there are no disagreements or conflicts—it might take 2-3 weeks once the petition is filed. Of course, that is true in Hamilton County where we practice. That might not be true where you live.
In a case where the parties disagree and the proceedings are contested, it could take several more weeks or even months.
Keep in mind that getting the required physician or psychologist affidavit, which must be obtained before the petition is filed, might take you some time. You will have to contact the physician or psychologist, discuss the matter with him/her, and have your attorney draft the affidavit.
Who is typically appointed as conservator?
Tenn. Code Ann. 34-3-103 provides a list of priorities and preferences for who should be named conservator. In a situation where the family members quarrel about the appropriate conservator and cannot come to an agreement, the court could decide to appoint a local attorney as conservator.
In that case, the attorney will be entitled to a fee for any time spent in carrying out his/her duties as conservator. If there is no person available to serve as conservator, the court could appoint the public guardian to serve as conservator.
What powers or authority will a conservator have?
First, it is important to know if the individual has been appointed conservator of the person or the estate (or both). If the appointment is just as to the person, the powers will probably be limited to making decisions regarding the person’s medical needs.
If the appointment is for the estate, the rights typically include the ability to receive income, dispose of property, execute instruments, make purchases, enter into contractual relationships, and handle all financial affairs.
A court could put limitations on the conservator’s powers or provide for specific ones.
What are the duties and responsibilities of a conservator?
First of all, a court will often require that a bond be set for the appointed conservator. The amount of the bond depends on the amount of assets of the disabled person. The more assets the person has, the higher the bond will be. The bond is designed to protect the disabled person in the event the conservator steals or mismanages the person’s assets.
A conservator has a fiduciary duty to the disabled person, which means that the conservator must act with the utmost loyalty to the disabled person and act in his/her best interest. That means the conservator must be very cautious in managing funds and other property belonging to the disabled person.
I have a relative or someone close to me who needs a conservatorship, what should I do to start the process?
We would advise you to contact an attorney who works in this area of the law in your jurisdiction. All of our attorneys at Stulce & Yantis have handled numerous conservatorship and guardianship cases.
If you are located in Chattanooga, please call us at (423) 267-9072 or simply fill out the contact form.