New Conservatorship Laws in Tennessee

19 April 2013 Categories: All Blogs, Nashville Attorney

Below is the summary of Bill SB 0555 that was passed yesterday in the Tennessee House of Representatives. It makes some changes to the Guardian and Conservatorship laws in the State of Tennessee.

Read the complete bill here: SB0555

Bill Summary

This bill makes various changes throughout present law regarding court appointed guardians and conservators, including the following:

(1) Replaces the term “disabled person” with the term “person with a disability” throughout such law;
(2) This bill details a non-exhaustive list of powers and rights that a court may transfer from a person with a disability to a conservator;
(3) This bill clarifies that a guardian ad litem would not represent the minor or person with a disability that is the subject of conservatorship proceedings (the respondent), but would investigate the allegations made against the respondent in accordance with present law. Present law requires the guardian ad litem to report the facts to the court, and this bill additionally requires the guardian ad litem to report the guardian ad litem’s recommendations as to the best interests of the respondent to the court as well as to report on any other matters as directed by the court;
(4) Present law requires the guardian ad litem to investigate the physical and mental capabilities of the respondent. This bill requires that such investigation include:
(A) An in person interview with the respondent; and
(B) A review of the sworn report made by a physician, psychologist or senior psychological examiner under present law to verify that the sworn statement contains:
(i) A detailed description of the respondent’s physical or mental conditions or both that may render the respondent a person with a disability; and
(ii) A detailed description of how the respondent’s physical or mental conditions or both may impair the respondent’s ability to function normally;
(5) This bill specifies that the sworn report made by a physician, psychologist or senior psychological examiner in conservatorship proceedings would 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;
(6) Under present law, in a proceeding seeking the appointment of a fiduciary to manage the respondent’s property, the guardian ad litem must investigate the nature and extent of the respondent’s property, the financial capabilities of the proposed fiduciary, and proposed property management plan. This bill removes the requirement that the guardian ad litem investigate the proposed property management plan and requires that the guardian ad litem investigate the integrity of the proposed fiduciary. Additionally, this bill authorizes the guardian ad litem, in evaluating the financial capabilities of the proposed fiduciary, to take such actions as directed by the court and as the guardian ad litem deems necessary and details examples of such actions;
(7) This bill requires that letters of conservatorship or guardianship, which are used under present law to administer the estate of a minor or person with a disability, either:
(A) Recite the specific powers to be exercised by the fiduciary and the specific powers retained by the minor or person with a disability; or
(B) Have attached to them the orders of the court specifying the powers to be exercised by the fiduciary and the powers retained by the minor or person with a disability;
(8) Under present law, in a proceeding for the appointment of a conservator, a notice of the hearing must be served on the respondent. This bill specifies that such notice would be served by the guardian ad litem or as otherwise authorized by the Tennessee Rules of Civil Procedure. This bill requires that such notice also be served upon the closest relative or relatives of the respondent other than the petitioner and upon the person or institution, if any, having care and custody of the respondent or with whom the respondent is living. Service by mail, sent to the last known address of such persons or institution, would be sufficient;
(9) Generally, under present law, a fiduciary appointed in a guardianship or conservatorship proceeding must make an annual accounting to the court within 60 days after the anniversary of the fiduciary’s appointment and such accounting must include a financial accounting and a statement concerning the physical or mental condition of the disabled person. This accounting may be excused by the court in certain circumstances. This bill specifies that in such circumstances, the court may only excuse the financial accounting and may not excuse the statement concerning the physical or mental condition of the disabled person. This bill also clarifies that the present law requirements regarding financial accountings do not apply to fiduciaries who do not have authority over the property of the person with a disability. This bill also requires that an accounting be made within 30 days after the six-month anniversary of the fiduciary’s appointment;
(10) (A) Under present law, if a fiduciary is appointed, the costs of the proceedings, which are the court costs, the guardian ad litem fee, 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. If no fiduciary is appointed, the costs of the proceedings must be charged against the petitioner. If a petition for a standby fiduciary is filed, the costs of the action must be charged against the petitioner.
(B) This bill rewrites the provisions in (10)(A) to instead specify that the costs of the proceedings, described above, 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 would have been appointed but for an event beyond the petitioner’s control is to be given special consideration. If the principal purpose for bringing the petition is to benefit the petitioner and there would otherwise be little, if any, need for the appointment of a fiduciary, the costs of the proceedings may be assessed against the petitioner, in the discretion of the court;
(11) This bill specifies that a petition for the appointment of a conservator should include a request for a guardian ad litem, conservator or co-conservator, or attorney ad litem with specific experience or expertise in matters like those faced by the respondent, if warranted under the circumstances;
(12) Present law grants the respondent in a conservatorship proceeding the right to appeal the final decision on the petition. This bill specifies that such appeal may be made with the assistance of an attorney ad litem or adversary counsel. This bill also grants the respondent the right to request a protective order placing under seal the respondent’s health and financial information, including sworn reports made by a physician, psychologist or senior psychological examiner;
(13) Under present law, a disabled person or any interested person on the disabled person’s behalf may petition the court at any time for an order to terminate or modify the conservatorship. This bill authorizes the court, prior to holding a hearing on such petition, to require that the person with a disability submit to an examination made by a physician, psychologist or senior psychological examiner to support the person with a disability’s contention that a conservator is no longer needed;
(14) Under present law, a sentence of imprisonment in the penitentiary ends any right of the inmate to execute the office of executor, administrator or guardian, and operates as a removal from any such office. This bill specifies that such a sentence would also end any right of the inmate to execute the office of fiduciary or conservator, and operate as a removal from any such office; and
(15) This bill provides for the appointment of an emergency guardian or conservator in certain circumstances. This bill specifies that if the court finds that compliance with the procedures of law regarding guardianships and conservatorships will likely result in substantial harm to the respondent’s health, safety, or welfare, and that no other person appears to have authority to act, willingness to act, and is acting in the best interests of the respondent in the circumstances, then the court, on petition by a person interested in the respondent’s welfare, may appoint an emergency guardian or conservator whose authority may not exceed 60 days and who may exercise only the powers specified in the order. Immediately upon receipt of such a petition, the court must appoint an attorney ad litem to represent the respondent in the proceeding. Reasonable notice of the time and place of a hearing on the petition must be given to the respondent and any other person as the court directs, except that an emergency guardian or conservator may be appointed without notice to the respondent and the attorney ad litem if the court finds upon a sworn petition that the respondent will be substantially harmed before a hearing on the appointment can be held. If the court appoints an emergency guardian or conservator without notice to the respondent, the respondent must be give notice of the appointment within 48 hours after the appointment. The court must hold a hearing on the appropriateness of the appointment within five days after the appointment. Appointment of an emergency guardian or conservator, with or without notice, is not a determination of the respondent’s incapacity. The court may remove an emergency guardian or conservator at any time. The court may appoint a guardian ad litem to investigate the circumstances. An emergency guardian or conservator must make any report the court requires. In other respects, the provisions of law concerning guardians or conservators apply to an emergency guardian or conservator.

NOTE: The language of Section 27(e) appears to be an incomplete sentence.

ON MARCH 25, 2013, THE SENATE ADOPTED AMENDMENTS #1 AND #2 AND PASSED SENATE BILL 555, AS AMENDED.

AMENDMENT #1 corrects typographical errors and makes various technical changes and additions to this bill as follows:

(1) This amendment specifies that the law concerning guardianships and conservatorships will not supersede the Tennessee Adult Protection Act;
(2) This amendment requires that notice of a petition for the appointment of a fiduciary residential provider notice must be provided to any institution where the respondent resides;
(3) This amendment specifies that courts are authorized to waive the appointment of a guardian ad litem on filing of a petition for appointment of a fiduciary, if the respondent is represented by counsel who has made an appearance for the respondent, if such waiver is in the best interests of the respondent;
(4) This amendment requires that, in a proceeding for the appointment of a conservator, a notice of the hearing must be served on any person, institution or residential provider having care or custody of the respondent, as well as serving a notice on the respondent;
(5) Corrects the error noted in the Bill Summary by specifying that, upon an additional finding that the person with a disability poses a threat to self or others in accordance with the mental health law, the court will be authorized to order commitment or involuntary care and treatment;
(6) This amendment makes further changes to replace the use of the term “disabled person” with the term “person with a disability”;
(7) This amendment places district public guardians at a higher level of priority than persons who are unrelated to a person having a disability for purposes of determining who should be appointed as a conservator; and
(8) When a court does not appoint a relative of a person with a disability, or a district public guardian, as the conservator, this amendment requires the court to state the reasons why such an appointment could not be made in the court’s order establishing the conservatorship.

AMENDMENT #2 requires that the notice of a petition on a guardianship or conservatorship be served upon the closest relative or relatives of the respondent, as such persons are described in the laws of intestate succession, but not including the petitioner, and upon the person or institution, if any, having care and custody of the respondent or with whom the respondent is living.

ON APRIL 17, 2013, THE HOUSE SUBSTITUTED SENATE BILL 555 FOR HOUSE BILL 692, ADOPTED AMENDMENTS #2 AND 3, AND RESET SENATE BILL 555, AS AMENDED.

AMENDMENT #2 specifies that the bill will apply to actions commenced on or after July 1, 2013.

AMENDMENT #3 specifies that if the respondent is under hospitalization and no other person, including an agent acting under an advanced directive, a durable power of attorney, or a living will appears to have the authority and willingness to act and is acting in the best interest of the respondent, then the court, on petition of a person interested in the respondent’s welfare, may appoint an expedited limited healthcare fiduciary. The fiduciary’s authority is for the limited purpose of consenting to discharge, transfer, and admission and consenting to any financial arrangements or medical care necessary to affect such discharge, transfer or admission to another healthcare facility. The fiduciary’s authority may not exceed 60 days. Immediately upon the receipt of the petition for an expedited limited healthcare fiduciary, the court would appoint an attorney ad litem to represent the respondent in the proceeding. The court would hold a hearing on the appropriateness of the appointment within five days of the appointment. The time periods set forth in this amendment are mandatory and not directory. Failure to comply with those provisions would void any expedited appointment and remove the authority previously granted to the expedited limited healthcare fiduciary. The court may remove an expedited limited healthcare fiduciary at any time.

This amendment specifies that this bill would apply to actions commenced on or after the bill’s effective date.

ON APRIL 18, 2013, THE HOUSE FURTHER CONSIDERED SENATE BILL 555 AND PASSED SENATE BILL 555, AS AMENDED BY HOUSE AMENDMENTS #2 AND 3.

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