Can a Non-Resident of Tennessee Serve as a Conservator of an Incompetent Person in Tennessee?

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.   

Are Investment Options Limited for a Conservator or Guardian who Invest Funds for the Benefit of the Minor or Disabled Person Under Tennessee Law?

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. 

Is a Conservator or Guardian Required to File an Inventory of the Property After a Conservatorship or Guardianship is Approved in Tennessee?

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...

Newly Released 2013 Tennessee Probate and Conservatorship Case Filing Statistics

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...

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

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...

Can a Guardian or Conservator Sell Property of a Minor or Disabled Person Without Permission of the Court in Tennessee?

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...

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

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

Does a respondent have any rights in a proposed conservatorship situation under Tennessee law?

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...

In Tennessee, a guardian or conservator must be appointed to distribute a share from an estate to an infant or incompetent individual.

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.

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

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.