Practice Tips

PRACTICE TIPS By: Samantha Parris

Law Office of Samantha Parris

CONSERVATORSHIPS: ANTICIPATE AND AVOID PROBLEMS

Introduction

Conservatorships are a hot topic in the public zeitgeist. The Netflix film I Care a Lot and the news coverage of the recent Britney Spears conservatorship hearings have brought the sometimes dark side of conservatorships to the foreground. While no KBA member would ever engage in the scandalous dealings from I Care a Lot or the potentially troubling behavior alleged by Britney Spears, it is crucial to watch the details of your conservatorships to avoid any potential pitfalls.

Emergency Conservatorship Deadlines

If an emergency conservatorship is required to avoid substantial harm to the respondent, it is important to remember the time limits and deadlines for notice and hearings. An emergency conservatorship can last a maximum of 60 days.1 If you need a conservatorship to continue past that time period, you will need to start the proceedings for a regular conservatorship as well.

If the emergency conservatorship is granted without notice to the respondent, notice must be given within 48 hours.2 Additionally, a hearing must be held within 5 days of appointing an emergency conservator.3 It is important to note that these deadlines are modified by the auxiliary verb shall, not may, in the statute. These deadlines cannot be waived by the court and are mandatory.4

Who Can Serve – Residency Requirements

Tucked away in the miscellaneous provisions of the statutes are limitations on non-resident fiduciaries, which limit who can serve as conservator. Only Tennessee residents can serve as the conservator for both the person and property in a Tennessee conservatorship.5 An individual non-resident can serve as conservator for the person, but not as conservator for the property.6 This presents a problem when all the relatives of someone needing a conservatorship live in another state or the only person willing to serve lives in another state. However, if an individual Tennessee resident or a corporation authorized to do business in Tennessee that also maintains an office in Tennessee is willing to serve as co-conservator with the non-resident, that will satisfy the residency requirement.7

This is not a problem if the respondent does not have any property. For instance, in cases where the respondent has de minimis personal property, no other assets, and either no income or only income from social security, a conservator can be appointed over only the person. However, if the respondent has assets, a person living in another state is not an appropriate person to serve as sole conservator over the person and property.

Bond Requirements

With some exceptions, if the respondent has property, a bond will be required.8 For an individual conservator, bond is usually required unless the respondent’s non-real property is less than $10,000.00 and the court finds the benefit to the respondent by saving the expense outweighs the risks incident to the absence of a bond.9 This requirement can be waived if the property is deposited with the court, or if the property is placed with a financial institution and the financial institution agrees in a writing filed with the court that the conservator will not be permitted to withdraw the principal without court approval.10 This requirement can also be waived if the document naming the suggested or preferred fiduciary excuses the fiduciary from posting bond.11 Unless such a document exists, the conservator either needs a bond or is stuck with solutions that tie up the respondent’s assets in a way that will make it difficult to pay the respondent’s expenses.

Accounting Requirements

You are probably aware that a conservator over the property of the respondent is required to provide the court with an annual accounting.12 In addition, a new conservator over the property is required to provide the first accounting within 30 days after the first six months of the conservatorship.13 If your conservatorship is in Knox County Chancery Court, the court has helpful instructions for accountings on their website in the forms section.14

Medical Report

A sworn written report must be filled out and submitted by a medical professional either with the petition for conservatorship or by court order.15 Two potential pitfalls with this report are when the respondent was last examined by the medical professional and what type of medical professional can sign the report. The examination by the medical professional has to occur not more than ninety (90) days prior to the filing of the petition.16 The medical professional must be a physician or, where appropriate, a psychologist or senior psychological examiner.17 Note that this does not permit the examination or medical report to be done by a nurse practitioner. As many more people see a nurse practitioner as their primary care provider, this can present a roadblock for the medical report.

Instructions to Conservators

If you are representing the conservator, it is good practice to not only give your client instructions on their duties when you speak with them, but also in writing. This serves both the purpose of giving your client a resource to refer back to as they perform their duties, and it documents that you have adequately advised your client about their responsibilities. If you have been practicing any length of time, you have had clients refuse to follow your advice and create difficulties for themselves. You want to make sure that if the client does not file an accounting, or comingles their individual funds with the respondent’s funds, that it is clear they did so against your advice.

Knox County Chancery Court has a good basic set of instructions for conservators on their website in the forms section.18 You can utilize those or use them as a starting point to develop your own instructions.

Conclusion

Being aware of the potential obstacles will keep your conservatorships moving through the court smoothly and efficiently.

1 T.C.A. § 34-1-132(a). 2 T.C.A. § 34-1-132(b). ³ Id. 4 T.C.A. § 34-1-132(e). 5 T.C.A. § 35-50-107(a)(2)(F). 6 Id. 7 T.C.A. § 35-50-107(a)(1). 8 T.C.A. § 34-1-105(a)(1). 9 T.C.A. § 34-1-105(b)(2). 10 T.C.A. § 34-1-105(b)(4)-(5). 11 T.C.A. § 34-1-105(b)(3). 12 T.C.A. § 34-1-111(b). 13 T.C.A. § 34-1-111(a). 14 https://www.knoxcounty.org/chancery/forms.php. 15 T.C.A. § 34-3-105(a). 16 Id. 17 Id. 18 https://www.knoxcounty.org/chancery/forms.php.