How to Obtain a Conservatorship: A Step-by-Step Guide
When a loved one can no longer care for themselves due to age, illness, or disability, you may find yourself in the difficult position of needing legal authority to help them. In Tennessee, this authority can be granted through a legal process known as conservatorship.
Understanding the process of obtaining a conservatorship is crucial for those looking to provide assistance to loved ones who can’t care for themselves. Brazil Clark, PLLC in Nashville, Tennessee, has the knowledge and skill to aid in this process. Here, you’ll learn more about the step-by-step process to obtain a conservatorship in Tennessee.
What Is a Conservatorship?
A conservatorship is a legal arrangement in which a court appoints someone—called a conservator—to manage the personal or financial affairs (or both) of an individual who is no longer capable of doing so on their own. The person for whom a conservator is appointed is called a respondent or ward.
Tennessee distinguishes between:
Conservatorship: This is for adults who are incapacitated.
Guardianship: This is for minors who need legal oversight.
Understanding the differences between the two is crucial for those pursuing a conservatorship.
Who Needs a Conservatorship?
In Tennessee, a conservatorship may be appropriate when an adult has been diagnosed with Alzheimer’s, dementia, or another cognitive impairment; has a severe physical disability preventing self-care or communication; is mentally ill and unable to make informed decisions; or is at risk of exploitation or neglect and can’t protect themselves.
Types of Conservatorships
There are generally two types of conservatorships:
Conservatorship of the person: The conservator is responsible for making decisions about the respondent’s health care, housing, and daily living needs.
Conservatorship of the estate: The conservator manages the respondent’s financial affairs, including paying bills, managing income, and protecting assets.
You can be appointed to one or both roles, depending on the needs of the respondent.
Obtaining a Conservatorship in Tennessee
Determine Necessity and Alternatives
Tennessee law mandates the consideration of less restrictive alternatives before pursuing conservatorship, including Powers of Attorney (POA) for health care and finances, living wills or advance directives, representative payees for Social Security or VA benefits, and trusts to manage assets.
A conservatorship may only be the best path forward if these alternatives are unavailable or insufficient due to the individual's incapacity or lack of prior planning.
Gather Evidence of Incapacity
To prove the respondent is disabled or incapacitated and unable to make or communicate decisions about their personal or financial affairs, Tennessee law (TCA §34-1-101 et seq.) requires medical or psychological evidence.
This typically includes a Physician’s Report or Sworn Medical Affidavit, documentation from a licensed professional (doctor, psychologist, social worker), and observations from family, caregivers, or others familiar with the respondent’s condition. This evidence will then be submitted to the court to determine the necessity of a conservator.
File a Petition for Conservatorship
To formally begin the conservatorship process, you must file a Petition for Appointment of a Conservator in the Chancery or Probate Court of the respondent's county of residence.
This petition needs to detail the respondent's name, age, address, and a description of their disability or condition. It must also include your name, relationship to the respondent, your interest in the case, a request to appoint a specific conservator, and a statement explaining the necessity of the conservatorship and why other alternatives are insufficient.
Additionally, you'll need to provide a list of the respondent's closest relatives (next of kin) with their contact information. Alongside the petition, you must submit a medical affidavit or other relevant documentation, a proposed Order Appointing Conservator, an Oath of Conservator (agreeing to your legal responsibilities), and a Notice of Hearing.
Be prepared for court filing fees, which typically range from $150 to $350, though a fee waiver may be available if you can’t afford them.
Serve Notice and Inform Interested Parties
Tennessee law mandates that the respondent and their next of kin be formally notified of the conservatorship petition. This involves personally serving the respondent with a copy of the petition and notice of hearing, usually via a sheriff or process server, and informing the next of kin and any other legally interested parties.
This notification process confirms transparency and provides an opportunity for family members to object or participate in the hearing.
Appointment of Guardian ad Litem
The court typically appoints a Guardian ad Litem (GAL), an independent attorney or investigator, to represent the respondent's best interests. The GAL's responsibilities include interviewing the respondent and petitioner, reviewing medical and financial documents, visiting the respondent's living environment, and providing a report and recommendation to the court.
Attend the Court Hearing
The court will schedule a hearing within a few weeks of filing. During the hearing, the judge will review all evidence and testimony. The Guardian ad Litem (GAL) will present their findings and recommendations.
The respondent has the right to attend, contest, and have legal representation. The petitioner may testify to the respondent’s condition and needs, and family members may offer support or opposition.
The judge will decide whether the respondent is legally incapacitated and whether a conservator is necessary. They’ll also determine who is the best person to serve in that role and what powers the conservator will be granted (full or limited).
Issuance of Letters of Conservatorship
If the judge grants the petition, the court will issue an Order Appointing Conservator and Letters of Conservatorship, which legally authorize the conservator to act.
The conservator must take an oath and possibly post a bond (if managing assets) as financial protection for the respondent. They’ll then begin performing duties in accordance with Tennessee law.
Conservator Duties and Responsibilities
Once appointed, a conservator in Tennessee has several key duties and responsibilities. First, they must act in the best interest of the ward, meaning they have a fiduciary duty—a legal and ethical responsibility—to act solely in the respondent's best interest.
Second, a conservator of the estate must file an inventory of all assets, liabilities, income, and expenses with the court within 60 days of their appointment.
Additionally, they’re required to maintain accurate records, including detailed accounts of all expenditures and receipts, decisions made on the respondent's behalf, and communications with health care providers, attorneys, and financial institutions.
Third, conservators must file annual reports to confirm transparency and court oversight. This includes submitting a status report for personal conservatorships and an accounting of financial transactions for estate conservatorships.
Finally, certain actions necessitate prior court approval, such as selling real estate or large assets, making significant financial decisions, changing the respondent's residence, or withdrawing or terminating the conservatorship.
Modifying or Terminating a Conservatorship
Conservatorships aren’t always permanent and can be modified or terminated. If the respondent's condition changes, the court may expand or limit the conservator’s authority or replace the conservator if they're not fulfilling their duties properly.
A conservatorship can end if the respondent recovers sufficient capacity, passes away, or if the court finds that the conservatorship is no longer necessary. To request termination, a petition must be filed with evidence supporting the change.
Obtaining a conservatorship in Tennessee is a structured legal process designed to protect vulnerable individuals who can no longer manage their own affairs. While the process may seem overwhelming at first, understanding each step can make the journey more manageable and successful.
Contact a Family Law Attorney Today
By respecting the rights and dignity of the person in need and following Tennessee’s legal procedures, you can make sure that your loved one receives the protection and care they deserve. If you need help filing a conservatorship, reach out to Brazil Clark, PLLC to start the process. The firm serves clients in Rutherford County, Tennessee. Contact an experienced family law attorney from the firm today.