New Conservatorship Requirement in Tennessee

23 August 2012 Categories: All Blogs, Estate Planning

If you are filing a conservatorship in Tennessee after July 1st of this year, there is an additional requirement that must be included in the petition. The new conservatorship law can be found here: Conservatorship bill

The new requirement is that both the petitioner and proposed conservator (although this is often the same person) must state whether they have been convicted of any felony or misdemeanor.

The summary of the bill is:

This bill makes various changes to the present law procedure for appointing a conservator. A conservator is a person who is appointed to manage some or all of the affairs of a disabled adult.

Generally, under present law, upon the filing of a petition for the appointment of a conservator, the court must appoint a guardian ad litem to represent the respondent to the petition, unless the responded is represented by counsel. This bill prohibits the appointment of a guardian ad litem for any respondent who is 60 years of age or older.

Under present law, the hearing on a petition for appointment of a guardian or a conservator must be held not less than seven nor more than 60 days from the date of service on the respondent or the date a guardian ad litem was appointed, whichever is later. If the petition alleges the minor or disabled person is faced with a life threatening situation, the court is authorized to schedule the hearing in less than seven days from the date of service on the respondent; provided, that actual notice of the hearing is given to the closest relative and the respondent. The hearing date may be extended on motion showing good cause. This bill does not change the procedure for appointment of guardians, who are appointed for minors. In cases where appointment of a conservator is sought, this bill prohibits the awarding of emergency conservatorships.

This bill requires that the notice of the hearing that must be served on the respondent to a petition for appointment of a conservator include a statement that the respondent may lose some or all of the respondent’s rights if a conservator is appointed.

This bill prohibits any ex parte hearings on a petition for appointment of a conservator unless three licensed physicians provide sworn affidavits that it would be detrimental to the respondent’s health to attend the hearing.

Under present law, if a conservator is appointed, the costs of the proceedings, must 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 are charged against the petitioner. This bill makes the charging of costs against the respondent’s estate permissive rather than mandatory when a conservator is appointed. In cases where no conservator is appointed, the petitioner will remain liable for the costs of the proceeding.

Present law requires that a court must find by clear and convincing evidence that a respondent is fully or partially disabled and that the respondent is in need of assistance from the court before a fiduciary can be appointed. This bill requires that the court must consider medical evidence when making its findings.

This bill requires that all hearings on a petition to dissolve a conservatorship must be held within seven days of service of the petition on the conservator. This bill requires that any medical evidence that is presented at a hearing to dissolve a conservatorship must be considered, but clarifies that medical evidence is not required to support dissolution of a conservatorship. This bill further requires that, if a petitioner proves by a preponderance of the evidence that the disabled person is not in need of assistance, the court must dissolve the conservatorship.

This bill specifies that a respondent to a petition for appointment of a conservator retains access to the respondent’s property until a conservatorship is established and that the respondent must be permitted to retain an attorney of the respondent’s choosing.

ON APRIL 18, 2012, THE SENATE ADOPTED AMENDMENT #1 AND PASSED SENATE BILL 2519, AS AMENDED.

AMENDMENT #1 deletes all of the provisions of this bill as described in the Bill Summary except making the charging of costs a proceeding against a respondent’s estate permissive rather than mandatory when a conservator is appointed.

This amendment adds to the present law requirements for the information that must be included in a petition for the appointment of a conservator by requiring that the petition include:

(1) A statement of the relationship of the petitioner to the respondent, and a statement of any felony or misdemeanor convictions of the petitioner; and
(2) A statement of any felony or misdemeanor conviction of the proposed conservator.

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