Q: What is guardianship?
A: Guardianship is now referred to in Tennessee as “conservatorship” for adults who a judge decides “needs the protection, supervision, or assistance of the court.” A conservatorship is a court proceeding. It can be necessary when a person suffers from a mental or physical disability that renders him or her unable to make financial or health care decisions and no other advance planning is in place. The person’s rights are removed and vested in another person, the conservator.
Q: What is a conservator?
A: A conservator can be a person, institution, or agency appointed by a court to manage the affairs of another person. In the past, that person has been referred to as a ward, a protected person, or a disabled person. In Tennessee, the court may appoint a conservator over the person or over the person's property, or both the person and property. Under Tennessee law the judge must select the “least restrictive alternative,” an option that allows a person to keep as much autonomy and self-determination as possible while providing only the level of protection and supervision that is necessary.
Q: What is a public guardian?
A: The appointment and responsibility of a public official or publicly funded organization to serve as legal guardian in the absence of a willing and responsible family member or friend, or in the absence of resources to hire a private guardian.
Q: How does a judge decide if a person needs a conservator?
A: Just because someone may have some sort of diagnosis, or disability, does not automatically mean a conservator is needed. Most important is the person’s ability to make decisions that do not risk causing harm to himself or herself or to others, and to communicate those decisions once made. Can the person fully understand the consequences of his or her decisions? If not, the person needs help. Does a court need to become involved? If so, a guardian ad litem (a neutral attorney) will be appointed by the court to investigate the situation and report findings and recommendations to the court.
Q: Who may file the conservatorship proceeding?
A: Anyone who has an interest in the individual’s welfare may file the petition. The petitioner does not have to be named as the conservator.
Q: Who will the court appoint as conservator?
A: The law provides for certain persons over others. For example, if the individual has previously named an agent under a durable power of attorney, that person would be given preference. Absent that, the court may consider a spouse instead of a child, but would look to an adult child befor more distance family member. If no one is able or willing to serve, the court may appoint a public guardian.
Q: Are there alternatives to a conservatorship?
A: If the person is willing and has the requisite level of mental capacity to appoint an agent and sign a power of attorney, a conservatorship may be avoided.