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In Tennessee what are the requirements for a physical or mental examination for the appointment of a conservator over a person?

Posted on Jun 27 2013 9:37PM by Attorney, Jason A. Lee

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:

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TAGS: Tennessee Conservatorship, Guardian Ad Litem Comments [0]
  
 

When a child is born outside of marriage, when is the child considered a child of the father for purposes of intestate succession (when someone dies without a will)?

Posted on Jun 24 2013 8:22PM by Attorney, Jason A. Lee

T.C.A. § 31-2-105(a)(2) provides the rules to determine when child is considered a child of a father when the child was born outside of marriage ("wedlock" is the term used in the statute).  Specifically, T.C.A. § 31-2-105 provides as follows:

 

(a) If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:

(1) An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent; and

(2) In cases not covered by subdivision (a)(1), a person born out of wedlock is a child of the mother. That person is also a child of the father, if:

(A) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or

(B) The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof, but the paternity established under this subdivision (a)(2)(B) is ineffective to qualify the father or the father's kindred to inherit from or through the child unless the father has openly treated the child as the father's, and has not refused to support the child.

(b) In no event shall a parent be permitted to inherit through intestate succession until all child support arrearages together with interest thereon at the legal rate of interest computed from the date each payment was due have been paid in full to the parent ordered to receive support or to the parent's estate if deceased.

(c) Nothing in this section shall be construed to prevent a child from inheriting from a parent through intestate succession.

 

As a result there are two possible ways to determine whether a child born outside of marriage is considered a child of the “father” before or after the death of the father.  Basically the child is considered to be a child of the “father” if the parents participated in a marriage ceremony before or after the birth of the child (even when the atte...

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TAGS: Intestate, Intestate Succession, Minor Children, Tennessee Probate Law Comments [0]
  
 

In Tennessee when is a surviving spouse required to make an election to receive an elective share against the estate?

Posted on Jun 18 2013 10:39PM by Attorney, Jason A. Lee

A surviving spouse can choose to receive an elective share (see prior post describing the details of an elective share under Tennessee law) of the decedent's property by filing a notice with the court and delivering the notice to the personal representative.  The surviving spouse must file a petition for an elective share within nine months after the date of the death.  T.C.A. § 31-4-102(a)(1) provides as follows:

 

(a)(1) The surviving spouse may elect to take the spouse's elective share in decedent's property by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine (9) months after the date of death.

 

Additionally, an extension of this time limit is provided in the statute if there is litigation pending about the title of the surviving spouse to property devised or bequeathed by the will such that an elective share determination could not be made with sufficient information.  If this type of litigation exists then the surviving spouse has an additional year from the date of the probate of the will within which to elect.  Additionally, the court can extend that date further due to the litigation if requested.  T.C.A. § 31-4-102(a)(2) provides as follows:

 

(2) When the title of the surviving spouse to property devised or bequeathed by the will is involved in litigation pending so that an election to take the elective share cannot be advisedly made, the survivor shall have an additional year from the date of the probate of the will within which to elect; provided, that the court may upon a proper showing further extend the time to meet the exigency of litigation, not concluded, and, that application for allowance of additional time, in either case, be made to the court, for record of its action thereon.

 

The surviving spouse may also withdraw a demand for an elective share at any time for the entry of a final determination by the court under T.C.A. § 31-4-102(c).  Obviously factual circumstances can change as the estate moves through the Tennessee probate process. ...

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TAGS: Elective Share, Surviving Spouse, Notice Requirements, Tennessee Probate Law Comments [0]
  
 

What standard of evidence does the Court use to determine whether a proposed conservatorship is appropriate under Tennessee law?

Posted on Jun 15 2013 4:43PM by Attorney, Jason A. Lee

Conservatorships serve a very important role to help take care of our aging population as baby boomers get older and American’s live longer.  This will only become more and more important as our society continues to age due to advances in medicine.  The Tennessee legislator recently passed Public Chapter 435 which is a new bill in the 2013 legislative session changing conservatorship law.  This new legislation modifies current Tennessee conservatorship law in many ways in an attempt to provide more protections for the entire process.  This bill was signed into law by Governor Bill Haslam on May 16, 2013 and takes effect on July 1, 2013.  I will have subsequent blog posts that address the changes in this bill at a later time.

 

One issue that is important in Tennessee conservatorship law is the standard of evidence the court must use to determine is an individual should have a conservatorship appointed for them.  Under T.C.A. § 34-1-126 the court must find by “clear and convincing evidence” that the respondent (disabled person) is “fully or partially disabled” and is in “need of assistance from the court” before a fiduciary (conservator) can be appointed.  T.C.A. § 34-1-126 provides as follows:

 

The court must find by clear and convincing evidence that the respondent is fully or partially disabled and that the respondent is in need of assistance from the court before a fiduciary can be appointed.

 

The clear and convincing evidence standard is a high standard under Tennessee law.  The Tennessee Supreme Court discussed this standard of evidence in Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992).  In footnote number three the Court stated that "clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence." Hodges at 901.  

 

Additional...

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TAGS: Tennessee Conservatorship Comments [0]
  
 

Creditor Claims Against Estate- What happens if the estate fails to file timely objections to a creditor’s claim in a Tennessee probate estate?

Posted on Jun 8 2013 10:12PM by Attorney, Jason A. Lee

The recent Tennessee Court of Appeals decision of In Re: The Estate of Rosalynn Karesh, No. W2012-00181-COA-R3-CV, 2012 WL 6562025 (Tenn. Ct. App. December 17, 2012) discussed the impact of untimely exceptions or objections to a creditor's claim.  The court noted that under T.C.A. § 30-2-314(a) the estate has a right to file written objections to any creditor claim that is filed against the estate.  Karesh at 4, 5.  This statute, T.C.A. § 30-2-314(a) specifically mandates that, “each exception shall include a reasonably detailed explanation of the ground or grounds upon which the person making such exception intends to rely.”  Karesh at 5. 

 

The court noted that the failure to timely file an exception to a creditor claim has consequences specifically, "failure to except to a claim amounts to an admission of its justness; and the claim becomes, in effect, a judgment against the estate at the end of the statutory period."  Karesh at 4 (citing, Needham v. Moore, 292 S.W.2d 720, 723 (Tenn. 1956)).  As a result, this is a very important requirement.

 

In this Karesh case, the estate only filed objections to a specific creditor's claims on the basis the claims were untimely but did not provide any specific objections to the actual merits of the claims. Karesh at 4, 5.  The estate did send a letter to the creditor discussing some objections but it was not filed with the Court within the appropriate time frame required under the statute.  As a result, the only objections timely filed with the Court were based on the alleged untimeliness of the creditor claim (which the court rejected).  As a result, the Appellate Court found that a written letter of substantive objections that was not filed with the court until after the time period passed for objections is not sufficient to properly raise objections to the credito...

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TAGS: Creditor claims, Notice Requirements, Tennessee Probate Law Comments [0]
  
 

Under Tennessee law, what is a durable power of attorney document – and do I need to have one?

Posted on Jun 3 2013 8:54PM by Attorney, Jason A. Lee

A durable power of attorney document is a very important tool available in Tennessee to assist people in designating people who have power to act as their attorney in fact in various situations.  It is an important part of proper estate planning.  The durable power of attorney can become effective immediately upon execution.  This would allow the designated “attorney in fact” to act for the principal in various situations discussed more fully below (like signing legal documents on the principal’s behalf). 

 

The durable power of attorney can also be drafted in such a way that it only takes effect upon the disability or incapacity of the principal.  This can be very important because it allows many people to avoid the cost of Tennessee conservatorship proceedings if they ever become incapacitated due to dementia, Alzheimer’s or some other problem.  If there is no power of attorney document, often a conservatorship proceeding is required to obtain the powers that could have otherwise been provided in a properly executed power of attorney document.

 

A durable power of attorney document is defined by Tennessee statute in T.C.A. § 34-6-102 as follows:

 

A durable power of attorney is a power of attorney by which a principal designates another as the principal's attorney in fact in writing and the writing contains the words “This power of attorney shall not be affected by subsequent disability or incapacity of the principal,” or “This power of attorney shall become effective upon the disability or incapacity of the principal,” or similar words showing the intent of the principal that the authority conferred shall be exercisable, notwithstanding the principal's subsequent disability or incapacity.

 

This document basically gives another individual the power to act just like they were the principal who granted the powers to the attorney-in-fact.

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TAGS: Power of Attorney Comments [0]
  
 
Author

Jason A. Lee is a Member of Burrow Lee, PLLC. Contact Jason at 615-540-1004 or jlee@burrowlee.com for an initial consultation on wills estate planning and probate issues.

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Tennessee Wills and Estates Blog
Jason A. Lee, Member of Burrow Lee, PLLC
611 Commerce Street, Suite 2603
Nashville, TN 37203
Phone: 615-540-1004
E-mail: jlee@burrowlee.com

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