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Who Pays for the Fees and Costs for the Appointment of a Conservator or Guardian Under Tennessee law?

Posted on Feb 4 2014 11:17PM by Attorney, Jason A. Lee

T.C.A. § 34-1-114 provides that if a fiduciary (Conservator or Guardian) is appointed by the Court then the cost of the proceedings including court costs, guardian ad litem fee, required medical examination costs and attorney’s fees can be charged against the property of the respondent.  The respondent is the person who is the “person with disability” or minor that is subject to the conservatorship or guardianship.  The term “disabled person” is defined in T.C.A. § 34-1-101 as follows:

 

(13) “Person with a disability” means any person eighteen (18) years of age or older determined by the court to be in need of partial or full supervision, protection, and assistance by reason of mental illness, physical illness or injury, developmental disability, or other mental or physical incapacity;

 

If no fiduciary is appointed (in other words if the court rejects the petition for a conservatorship or guardianship) then the cost of the proceeding will be charged against the party that petitioned the court for the appointment of a conservator or guardian. 

 

T.C.A. § 34-1-114 provides as follows:

 

(a) The costs of the proceedings, which are the court costs, the guardian ad litem fee and expenses incurred by the guardian ad litem in conducting the required investigations, the required medical examination costs, and the attorney's fee for the petitioner, may, in the court's discretion, be charged against the property of the respondent to the extent the respondent's property exceeds the supplemental security income eligibility limit, or to the petitioner or any other party, or partially to any one or more of them as determined in the court's discretion. In exercising its discretion to charge some or all of the costs against the respondent's property, the fact a conservator is appointed or wou...

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What is a guardian ad litem and what are their responsibilities under Tennessee law?

Posted on Sep 29 2013 10:17PM by Attorney, Jason A. Lee

T.C.A. § 34-1-107 provides that when a party files a petition for the appointment of a fiduciary (usually for a guardianship or conservatorship) the court is required to appoint a guardian ad litem to represent the respondent.  Tennessee law provides that the guardian ad litem owes a duty to the court to “impartially investigate the facts and make a report and recommendations to the court.” T.C.A. § 34-1-107(d)(1).  The guardian ad litem is not an advocate for the respondent but has a duty to determine what is best for the respondent’s welfare.  The guardian ad litem is required under T.C.A. § 34-1-107(d)(2) to do the following:

 

(2) In each proceeding, the guardian ad litem shall:

(A) Verify that the respondent and each other person required to be served or notified was served or notified;

(B) Consult with the respondent in person as soon as possible after appointment;

(C) If possible, explain in language understandable to the respondent the:

(i) Substance of the petition;

(ii) Nature of the proceedings;

(iii) Respondent's right to protest the petition;

(iv) Identity of the proposed fiduciary; and

(v) Respondent's rights as set forth in § 34-3-106; and

(D) Make a report and recommendations to the court concerning the issues of:

(i) Whether a fiduciary should be appointed for the respondent;

(ii) If a fiduciary should be appointed, whether the proposed fiduciary is the appropriate person to be appointed; and

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What is an attorney ad litem in the context of a conservatorship or guardianship petition?

Posted on Aug 19 2013 11:26PM by Attorney, Jason A. Lee

In Tennessee the court is required to appoint an attorney ad litem to represent the respondent (the minor or disabled person) when a petition for a guardianship or conservatorship is filed and that individual does not desire a guardianship or conservatorship.  Specifically, T.C.A. § 34-1-125 provides as follow:

 

(a) The court shall appoint an attorney ad litem to represent the respondent on the respondent's request, upon the recommendation of the guardian ad litem or if it appears to the court to be necessary to protect the rights or interests of the respondent. The attorney ad litem shall be an advocate for the respondent in resisting the requested relief.

(b) The cost of the attorney ad litem shall be charged against the assets of the respondent.

 

As a result, if the respondent requests an attorney ad litem then they are entitled to have one appointed to represent their interest to oppose the proposed conservatorship or guardianship.  Further, if the guardian ad litem recommends an attorney ad litem or it appears to the court that an attorney ad litem is necessary to protect the interest of the respondent, then one must be appointed under the Tennessee statute.  An attorney ad litem serves a role that is different from a guardian ad litem because the attorney ad litem acts as an advocate for the respondent in resisting the requested conservatorship or guardianship.

 

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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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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
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Phone: 615-540-1004
E-mail: jlee@burrowlee.com

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