Conservatorship and Guardianship
What is a conservatorship?
A conservatorship is when the court takes away the ability of a disabled person to make decisions for him/herself and puts a conservator in place to make some or all of those decisions. The person asking for a conservatorship is the “petitioner” and the disabled person to be under a conservatorship is the “respondent” or “ward.” While the petitioner can be the conservator, they do not have to be. The court will appoint whoever will be the best possible conservator for the ward.
Who needs a conservatorship?
An older adult may need a conservatorship if they are a “person with a disability.” An adult with a disability is any person 18 or older that the court decides he/she needs some or full supervision, protection, and help because of mental illness, physical illness or injury, developmental disability, or other mental or physical incapacity.
What rights does a conservatorship take away?
Courts must take away as few of a person’s rights as possible. Conservatorships are limited to whatever does enough to protect the ward. To decide which rights to take away, the court considers two types of capacity:
- Decision-Making - The ability to make and communicate decisions to care for yourself and your property
- Functional - The ability to handle basic daily activities
What is the difference between conservatorship and guardianship?
In Tennessee, conservatorships are for adults (18 or older). Guardianships are for children (17 and younger).
Who can ask for a conservatorship?
Any person who knows the situation can ask the court to appoint a conservator.
What is the conservatorship process?
The process starts when the petitioner files a petition in the county where the ward lives. The petition must have a report by a doctor, psychologist, or senior psychological examiner. The court will appoint a neutral “Guardian ad Litem”—usually a local attorney—who investigates and recommends whether a conservatorship is needed. The court may also appoint an “Attorney ad Litem” to represent the ward if the court decides this is needed to protect the ward’s rights, the ward asks for one, the ward disagrees with the request for conservatorship, or the Guardian ad Litem suggests it.
What is an emergency conservatorship?
A court can grant an immediate conservatorship if it finds there is a chance of harm to the health, safety, or welfare of the ward. A hearing must occur within 5 days on whether to continue the emergency conservatorship. After this, the conservatorship continues like a normal one, except that there is a conservatorship in place until the court makes a final decision.
Who can be the conservator?
Courts may appoint anyone to be conservator, but the court considers in this order:
- A person who the ward chose in writing to be conservator, usually in a Power of Attorney, but not always,
- The spouse of the ward,
- Any child of the ward,
- Closest relative of the ward,
- A district public guardian, which is a state-run program whose employees can serve as agents or as conservator, or
- Any other person.
The court may appoint more than one person to serve as conservator, such as the ward’s child and the child’s spouse. Because the conservator has powerful decision-making authority, it may be best to have a single conservator to avoid disagreements.
What are a conservator’s duties to the ward and to the court?
Conservators must act in the best interests of the ward, file a property management plan and give an inventory and accounting of how any money or property is used, act in the way the ward would act if they could act for themselves, and follow the court’s orders. Courts will remove a conservator for abuse, mismanagement, neglect, or failure to act.
Can the ward or anyone else end or change a conservatorship?
A ward can appeal the court’s decision to grant a conservatorship, ask that the conservatorship end, or ask for a hearing on whether they are disabled. The Guardian ad Litem may also do this. The conservatorship may be challenged if the ward is no longer disabled, if it is in the ward’s best interest, or if the conservator has violated their duties. Any person can challenge the conservatorship by filing an objection with the court, but if the ward is challenging the conservatorship, the challenge can be made orally in the court room or through an informal letter to the court.
What if I am the conservator and I no longer want to be the conservator?
A conservator may ask the court in writing to give up being the conservator. The court may approve this request but is not required to do so. The conservator must also give the court a final accounting of the ward’s money and property that the court must approve.
How can I move a conservatorship between counties in Tennessee?
The transfer must be granted by a court in the original county and a court in the new county. The original court must find that the conservator and ward are both moving to the new county, or the ward is moving to a new county and a new conservator has been appointed in that county. The new county’s court must get a request to move from the conservator with the reasons for moving, an accounting, and in some cases, a request to move property.
How can I move a conservatorship from another state to Tennessee or vice versa?
To transfer the conservatorship to another state, the conservator must ask the original court to move the conservatorship to another state. The court will allow the transfer once the other state’s court agrees it is a good idea. To transfer an out-of-state conservatorship to Tennessee, the Tennessee court must get an order allowing transfer from the other state.
Acknowledgements & Disclaimer: This Fact Sheet was prepared by West Tennessee Legal Services (WTLS) and made possible by Serving Tennessee Seniors-administered by The Community Foundation of Middle Tennessee at the request of the Chancery Court. WTLS thanks the Tennessee Bar Association for its permission to use The Legal Handbook for Tennessee Seniors (2014 edition) as a primary information source. This publication is supported, in part, by funds provided by the Southwest Area Agency on Aging and Disability, the Tennessee Commission on Aging and Disability, and the U.S. Department of Health and Human Services. The content herein does not necessarily reflect the opinion or policy of the Southwest Area Agency on Aging and Disability or any agency of Tennessee or the U.S. government. Fact Sheets are for information only and not intended to replace legal advice. If you are in need of legal help, call WTLS at (800) 372-8346, or seek the help of a private attorney. (Revised 5/2017)