By Sharon Frankenberg,
Attorney at Law
If someone becomes disabled and is unable to care for himself or herself without assistance, they may benefit from the appointment of a conservator. In Section 34-1-101 (7), the Tennessee Code Annotated defines a disabled person for purposes of conservatorship as “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.” This definition includes someone suffering physical limitations as well as someone with cognitive challenges. Sadly, this situation often arises where an elderly person suffers from dementia and falls victim to someone taking financial advantage of them. Without intervention and the protection of a conservator, they could easily become destitute.
The court may be called upon to appoint someone to be the conservator of that disabled person’s estate and of his or her person. By statute, the action to appoint a conservator may be brought in a court exercising probate jurisdiction or any other court of record of any county in which there is venue. Venue is proper in the alleged disabled person’s county of residence. Tenn. Code Annotated Section 34-3-101. The petition “may be filed by any person having knowledge of the circumstances necessitating the appointment of a conservator.” The court will consider the following list of persons to be appointed conservator in order of priority: (1) the person designated in a writing signed by the alleged disabled person; (2) the alleged disabled person’s spouse; (3) any child of the alleged disabled person; (4) the closest relative or relatives of the alleged disabled person; and (5) other person or persons. The court will appoint a guardian ad litem (typically a licensed attorney) to investigate and report back on the physical and mental capabilities of the alleged disabled person, whether the alleged disabled person wishes to protest the allegation of disability, his or her current circumstances, the suitability of the proposed conservator and any other matters directed by the court. Ultimately, the court will be required to determine what is in the best interests of the alleged disabled person, i.e., are they, in fact, disabled and in need of a conservator and if so, who is the appropriate conservator. If the alleged disabled person challenges his or her status as “disabled,” the person bringing the petition for conservatorship must proved by clear and convincing evidence that the person is disabled.
“A conservator occupies a fiduciary position of trust of the highest and most sacred character.” Grahl v. Davis, 971 S.W.2d 373, 377 (Tenn. 1998). They are held to a high standard as protectors of the person and property of disabled people. The court should be made aware if a conservator is not properly caring for a disabled person or abiding by the orders of the court.
If you have a loved one who needs assistance with issues regarding a conservator or conservatorship, you will need to hire an attorney for help with this process. Sharon Frankenberg is an experienced attorney licensed in Tennessee since 1988. She is a sole practitioner who handles probate, foreclosures, landlord-tenant, collections and general civil matters. She also represents Social Security disability claimants and represents creditors in bankruptcy proceedings. Her office is in Knoxville and she may be reached at (865)539-2100.