T.C.A. §
34-3-105 provides specific requirements for a physical or mental
examination in conjunction with a petition for conservatorship under Tennessee
law. A conservatorship can be an
important way to transfer legal and other powers to a responsible person to
help someone who can no longer take care of themselves physically and/or
mentally. T.C.A. §
34-3-105(a) discusses the requirements for a physical or mental examination
in order to establish the appropriateness of a conservatorship as follows:
(a) If the
respondent has been examined by a physician or, where appropriate, a
psychologist or senior psychological examiner not more than ninety (90) days
prior to the filing of the petition and the examination is pertinent, the
report of the examination shall be submitted with the petition. If the
respondent has not been examined within ninety (90) days of the filing of the petition,
cannot get out to be examined or refuses to be voluntarily examined, the court
shall order the respondent to submit to examination by a physician or, where
appropriate, a psychologist or senior psychological examiner identified in the
petition as the respondent's physician, psychologist or senior psychological
examiner or, if the respondent has no physician, psychologist or senior
psychological examiner, a physician, psychologist or senior psychological
examiner selected by the court. The physician, psychologist or senior
psychological examiner, on completing the examination, shall send a sworn
written report to the court with copies to the petitioner and the guardian ad
litem. The physician's, psychologist's or senior psychological examiner's report
shall be made a part of the court record.
As a result, a written medial report should
be submitted in support of the petition for conservatorship as long as it
pertains to an examination made not more than 90 days prior to the filing of
the petition. If an examination has not
been made within the 90 days of the filing of the petition then the court is
required to order the respondent to submit to an examination and that report is
made a part of the court record.
The reports required under T.C.A. §
34-3-105 must contain specific information.
T.C.A.
§ 34-3-105(c) provides as follows:
(c) Each physician's, psychologist's or senior psychological examiner's
sworn report shall contain the following:
(1) The respondent's medical history; provided, that this subdivision
(c)(1) shall not be construed to expand the examiner's scope of practice;
(2) A description of the nature and type of the respondent's disability;
(3) An opinion as to whether a conservator is needed and the type and
scope of the conservator with specific statement of the reasons for the
recommendation of conservatorship; and
(4) Any other matters as the court deems necessary or advisable.
In 2013 the Tennessee legislature added a
new part to this statute when it passed Public Chapter 435 which
will go into effect on July 1, 2013.
Subsection (d) was added which provides that the examiner’s report is
considered as prima facie evidence of the respondent’s disability. T.C.A. § 34-3-105(d)
(d) The examiner's
sworn report shall be prima facie evidence of the respondent's disability and
need for the appointment of a fiduciary unless the report is contested and
found to be in error.
There were several other changes to Tennessee
Conservatorship law in the 2013 legislative session found in Public Chapter 435
that will be discussed in later posts on this website in the months to come.
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