What is a conservatorship proceeding?
A conservatorship is a court proceeding in which a judge removes decision-making powers and duties from a person with disabilities (called a “ward”) who is age 18 or older and lacks capacity to make decisions in one or more important areas of life. The judge transfers the decision-making powers and duties to a person, persons or entity (called a “conservator”) who exercises these powers and duties on behalf of the ward.
What rights does a Tennessee conservatorship affect?
The ward’s decision-making powers and duties may be removed in whole or in part. This can affect the ward’s right to make financial, health and other personal decisions. When a conservatorship is needed, the remedy imposed by the judge must be the least-restrictive alternative available to adequately protect the ward and the ward’s property. A conservator is required to make decisions in the best interest of the ward and as ordered by the judge.
Who is the conservator accountable to in Tennessee?
The conservator is accountable to the judge for his or her decisions and actions in handling matters for the ward. Unless otherwise ordered by the judge, the conservator must report to the judge annually concerning the status of the ward and the financial activity of the conservatorship. The conservator can also be required to obtain approval of the judge before carrying out certain major decisions such as relocating the ward, selling real estate, and changing the way the ward’s assets are invested or spent.
What is a Guardian Ad Litem?
A guardian ad litem is a person, usually a lawyer, who is appointed by the judge to investigate a situation and report back to the judge. The guardian ad litem does not represent the ward, the conservator, or any other party. Rather, the guardian ad litem’s role is to be independent and neutral in making recommendations to the judge which the guardian ad litem believes are in the ward’s best interests. The guardian ad litem gets paid a fee for his or her services. The judge can require that the guardian ad litem’s fee be paid from the ward’s property or by the party seeking the conservatorship.
What is an Attorney Ad Litem?
An attorney ad litem is a lawyer who is appointed by the judge to represent the ward. The attorney ad litem is an advocate for the ward and is not independent or neutral like the guardian ad litem. Often an attorney ad litem is not appointed because the ward does not oppose the conservatorship or request to have legal representation; however, in some cases the ward is opposed to the conservatorship, or becomes upset during the course of the conservatorship. The ward may believe a conservatorship is no longer needed, or may wish to have the conservator removed or replaced. In those cases, the judge appoints an attorney ad litem to be an advocate for the ward to try to help the ward achieve what the ward desires. The attorney ad litem gets paid a fee for his or her services and is paid from the ward’s property.
Are there significant costs to obtaining and administering a conservatorship in Tennessee?
Costs include – at a minimum – attorney fees, guardian ad litem fees, court-filing fees, and expenses in obtaining a necessary medical affidavit and records. Costs may also include the costs of accounting and financial reports and expenses of obtaining financial records. If the matter is contested or involves extended litigation, there can also be attorney ad litem fees and substantial costs related to trials, trial preparation and the fees of expert witnesses. The costs associated with conservatorships can be problematic in that many persons who wish to seek a conservatorship cannot afford the costs, and many persons who are in need of a conservatorship do not have sufficient assets to pay the costs. The judge has authority to require that costs be paid from the ward’s property, or may require them to be paid by the party seeking the conservatorship.