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Posted on Sep 7 2014 10:08PM by Attorney, Jason A. Lee
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The answer to this question is yes, in
most circumstances. T.C.A.
§ 35-50-107 addresses this issue.
This statute provides in subsection (a)(2)(F) that:
(2) The following
nonresident persons or corporations may serve as fiduciaries, whether the
appointment is by will, deed, trust agreement, court order or decree or
otherwise:
………..
(f) Any person may
serve as the conservator of the person of an incompetent person, regardless of
the residence of the conservator;
As a result any resident or non-resident
may serve as a conservator of an incompetent person even if the conservator
does not live in Tennessee. This
statutes applies when there is an actual person who is serving as the
conservator as opposed to a corporate entity of some kind (although there are
rules that can allow this as well).
Further, there are specific requirements for non-resident conservators
to comply with but with the help of a Tennessee attorney, these rules are not
too difficult to follow.
Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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Posted on Mar 30 2014 9:58PM by Attorney, Jason A. Lee
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A fiduciary (normally a conservator or
guardian) is limited in what investments can be made with the money that is the
property of a minor or disabled person. Tennessee
law requires that all funds held by a fiduciary must be invested within 45 days
of receipt of the funds unless otherwise ordered by the court. (See
T.C.A. § 34-1-115).
The type of investments that can be made
by the fiduciary are outlined in T.C.A. §
35-3-101 et al. This set of statutes
is too long to repeat here but includes a detailed list of available
investments that includes a significant amount of options for the preservation
and potential growth of the assets of the minor or disabled person. These statutes should be reviewed whenever a
conservator or guardian is trying to make a decision on what types of
investments can be made with the money.
Follow me on Twitter at @jasonalee for
updates from the Tennessee Wills and Estates blog.
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Posted on Feb 24 2014 11:14AM by Attorney, Jason A. Lee
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A fiduciary (usually a conservator or
guardian) who is responsible to manage the property of a minor or disabled person, is
required to file an inventory with the court within 60 days after their
appointment as a fiduciary. T.C.A. §
34-1-110(a)
provides as follows:
(a) If the fiduciary is to manage the property of the minor or person
with a disability, within sixty (60) days after appointment, the fiduciary
shall file a sworn inventory containing a list of the property of the minor or
person with a disability, together with the approximate fair market value of
each property and a list of the source, amount and frequency of each item of
income, pension, social security benefit or other revenue. If the required
information was included in the petition but not separately stated as an
inventory, the inventory shall repeat the information provided in the petition
and add any later discovered property or income sources.
It is very important for this inventory to
be completed. T.C.A. §
34-1-110(b)
provides the court with the ability to hold the conservator or guardian in
contempt of court if they fail to comply.
Additionally, under T.C.A. §
34-1-110(c)
the court may enter an order revoking the fiduciary’s authority and appointing
a substitute fiduciary. If you have been
appointed as a conservator or guardian in...
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Posted on Feb 9 2014 10:30PM by Attorney, Jason A. Lee
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Newly
released statistics on the number of Tennessee Probate and Conservatorship
cases filed each year show that annual filings of Probate and Trust matters are
increasing on a consistent basis.
Conservatorship matters, on the other hand, remain at a pretty
consistent level over the last 6 years. The
Tennessee
Judiciary recently published their annual report providing
statistics on case filings and other important Tennessee legal system
information. This new report covers
fiscal year 2012-2013 (July 1, 2012 – June 30, 2013) and is the most recent
report available.
The
total number of Probate and Trust case filings in Tennessee courts from 2007 to
2013 are as follows:
2007-2008 11,875
2008-2009 11,785
2009-2010 12,246
2010-2011 &n...
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Posted on Feb 4 2014 11:17PM by Attorney, Jason A. Lee
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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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Posted on Jan 5 2014 10:23PM by Attorney, Jason A. Lee
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Under Tennessee law, a guardian or conservator
must obtain prior approval of the court in order to sell certain property of a
minor or disabled person under the guardianship or conservatorship. T.C.A.
§ 34-1-116 provides as follows:
(a) Except as provided in subsections (b) and (d), no property of a minor
or person with a disability may be sold without prior approval of the court
that appointed the fiduciary.
(b) Unless the fiduciary is holding tangible property for the benefit of
a minor or person with a disability pursuant to the terms of a will, trust or
other written document, the fiduciary has the authority to sell each item of
tangible property with a fair market value of less than one thousand dollars
($1,000) or a motor vehicle without specific court approval…
(d) This section shall not apply to any fiduciary who is not required to
file a property management plan or who has had its investment plans approved as
part of its property management plan.
There is an exception for any item of
tangible property that has a fair market value of less than $1,000.00 or for
any motor vehicle. Sales of these items can
be completed without specific court approval unless it is being held pursuant
to the terms of a will, trust, or other written document.
If you are a guardian or conservator in
Tennessee, this is a very important statute to remember. Just because you have the powers provided to
you by the court does not mean that the powers ar...
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Posted on Sep 29 2013 10:17PM by Attorney, Jason A. Lee
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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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Posted on Sep 26 2013 10:07PM by Attorney, Jason A. Lee
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Tennessee law provides specific rights for
a respondent who is subject to be placed in a potential conservatorship. The respondent is the individual who is
considered to be unable to take care of themselves and thus in need of a
conservatorship where someone is appointed to take care of their legal and
personal affairs. T.C.A. § 34-3-106
provides certain rights to the respondent in a conservatorship proceeding as
follows:
The respondent has
the right to:
(1) On demand by
respondent or the guardian ad litem, a hearing on the issue of disability;
(2) Present
evidence and confront and cross-examine witnesses;
(3) Appeal the
final decision on the petition with the assistance of an attorney ad litem or
adversary counsel;
(4) Attend any
hearing;
(5) Have an
attorney ad litem appointed to advocate the interests of the respondent; and
(6) Request a
protective order placing under seal the respondent's health and financial
information, including reports provided under § 34-3-105(c).
One of the most important rights found in
this statute is the right to have an attorney ad
litem appointed to advocate as counsel on behalf of the respondent. This is an important right and this attorney
ad litem is an actual advocate on behalf of the respondent to oppose the
conservatorship should the respondent request an...
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Posted on Sep 8 2013 9:23PM by Attorney, Jason A. Lee
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T.C.A. § 30-2-702 discusses how to
make payments or distributions to infants and incompetent individuals from an estate. This applies to individuals who have been
adjudicated as incompetent but are without guardians or conservators authorized
to receive the property. The personal
representative of the estate, before making the final settlement distribution, is
required to file a petition with the court requesting that a guardian be
appointed for any minor individual. If the
receiving party is incompetent then the personal representative should request
the court to appoint a conservator for the incompetent individual in order to
handle the distribution from the estate.
T.C.A. § 30-2-702(b) provides
specifically as follows:
(b)(1) In cases
involving payees or distributees who are infants or persons adjudicated
incompetent and without guardian or conservator authorized to receive the
property, the personal representative, before making final settlement, shall
file a petition in the court in which the estate is being administered setting
out this fact and pray for the appointment of a guardian or conservator, unless
petition is made pursuant to § 34-1-104.
(2) The court
shall appoint a guardian or conservator, if practicable, or if impracticable,
order the property belonging to such infant or person adjudicated incompetent
paid or delivered into the state treasury, unless distribution is ordered
pursuant to § 34-1-104.
(3) The payment or
delivery shall be shown in the report and settlement of the personal
representative, exhibiting the receipt of the guardian or state treasurer, as
the case may be.
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Posted on Aug 19 2013 11:26PM by Attorney, Jason A. Lee
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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.
Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.
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