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Assisting A Loved One With Diminished Capacity

During these uncertain times brought about by the spread of Covid-19/the Coronavirus, many people have questions about the legal needs of loved ones who may be experiencing issues with diminished capacity or adult children with special needs.  The following information is intended to provide some brief insight into Conservatorship actions in Tennessee but it is not legal advice. You should consult an attorney about your specific needs before taking any action. 

Standard Conservatorships – A Conservator (sometimes called a guardian) is appointed by a court to perform specific functions on behalf of a person who has been declared legally incompetent (sometimes called a “ward”).  The ward cannot revoke or change a court ordered conservatorship or overrule the conservator who has been appointed by the court. Only the conservator can perform the specific powers transferred to the conservator which have been removed from the ward by the court.  A conservator only has the powers specified in the court order signed by the judge. These powers may be quite broad or very limited. The court must only transfer those powers that are necessary for the ward’s protection. A Conservatorship is a type of litigation. This proceeding is begun when a sworn petition requesting the appointment of a conservator and the transfer of specific powers to that conservator is filed in the proposed ward’s county of residence.  The appointment of a conservator becomes effective after the court enters an order, following a hearing and letters of conservatorship are issued by the court clerk. The conservator may have to post a bond in order to be appointed. A sworn report from a physician who examined the ward within the last 90 days must be filed in support of the petition signed by the proposed conservator. The petitioner must prove with clear and convincing evidence that the ward requires a conservator.

Emergency Conservatorship – An emergency conservatorship can be obtained when the court finds that compliance with standard conservatorship proceedings is likely to result in “substantial harm to an individual’s heal, safety or welfare” and not other person, including a power of attorney or agent has authority or is willing to protect the individual.  In these circumstances the court may appoint an emergency conservator whose authority may not exceed sixty (60) days and who may exercise only the powers specified in the order of appointment. While the court may appoint the emergency conservator without notice to the ward, the ward must receive notice of the appointment within 48 hours and the court is required to hold a hearing on the appropriateness of the appointment within five (5) days.  At the end of sixty (60) days the emergency conservatorship terminates unless some other action is taken to either extend it or convert it to a standard conservatorship.

Hopefully, this information has been of assistance to you.  If you have a question about any of these documents, we encourage you to seek legal advice.

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